Rule 503 Lawyer-client privilege. (a) Definitions. As used in this rule:

(1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services.

(2) A "representative of the client" is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client.

(3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

(4) A "representative of the lawyer" is one directed by the lawyer to assist in the rendition of professional legal services.

(5) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure would be in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client's representative and the lawyer or the lawyer's representative, or (2) between the lawyer and the lawyer's representative, or (3) by the client or the client's representative or the lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

(c) Who may claim the privilege. The privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication shall claim the privilege on behalf of the client unless expressly released by the client.

(d) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime or fraud. If the services of the lawyer were sought, obtained, or used to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(2) Prevention of crime or fraud. As to a communication reflecting the client's intent to commit a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another;

(3) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(4) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer;

(5) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness;

(6) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients; or

(7) Lawyer's professional responsibility. As to a communication the disclosure of which is required or authorized by the Hawaii rules of professional conduct for attorneys. [L 1980, c 164, pt of 1; am L 1992, c 191, 2(2)]

 

RULE 503 COMMENTARY

 

This rule is similar to Uniform Rule of Evidence 502, which adds to the U.S. Supreme Court proposal for the lawyer-client privilege, see proposed Rule 503, Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975), a definition for "representative of the client," subdivision (a)(2). Inclusion of this provision is based on the principle that a rule of privilege should be explicit.

The desirability of incorporating an express definition of who may be considered a "representative of the client" is underscored by inconsistent federal court rulings on this issue in the context of corporate client-attorney relationships, compare City of Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 483 (E.D. Pa. 1962), with Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970). The definition embodied in this rule is more expansive than the highly-constricted "control group" limitation imposed in City of Philadelphia, supra, in that it includes as a "representative" not only one having authority to act upon legal advice but also one authorized merely to obtain legal services on behalf of the client. Determination of what constitutes "authority" in such a case may be made according to recognized principles of agency.

Although Hawaii had no previous statutory provision for this privilege, it was recognized by the Hawaii courts, see McKeague v. Freitas, 40 H. 108 (1953); Wery v. Pacific Trust Co., 33 H. 701 (1936). Judicial definition of the scope and limitations of the privilege in those cases is consistent with the present rule.

 

RULE 503 SUPPLEMENTAL COMMENTARY

 

The Act 191, Session Laws 1992 amendment modified subsection (d)(1) and added subsections (d)(2) and (d)(7).

Subsection (d)(1): The language of the previous rule ("sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud") strongly implied a requirement that the client be shown to have entertained an unlawful intent at the time of the consultation with counsel, and some of the crime-fraud exception cases have so held, e.g., Pritchard-Keang Nam Corp. v. Jaworski, 751 F.2d 277, 281 (8th Cir. 1984). But the crime-fraud exception obtains without regard to the lawyer's awareness--or lack of awareness--of the client's unlawful motivation.

That being so, and keeping in mind that the paramount policy of the crime-fraud exception is to thwart the exploitation of legal advice and counseling in furtherance of unlawful goals, courts have extended the exception to cases where the client's criminal intent is formed only after legal consultation, e.g., Fidelity-Phoenix Fire Ins. Co. of New York v. Hamilton, 340 S.W.2d 218, 219 (Ky. 1960), where the client, after learning from his first lawyer that his fire damages were exempted from insurance coverage by a suspension provision in the policy, went to a second lawyer and falsely represented facts that supported a claim under the policy. The court held that the claim was fraudulent and that the communications to the first lawyer were not privileged. The extension of the crime-fraud exception to this sort of case is approved in Fried, Too High a Price for Truth: The Exception to the Attorney-Client Privilege for Contemplated Crimes and Frauds, 64 N.C.L. Rev. 443, 458-59, 480-81 (1986). It is, moreover, fully consistent with the lawyers' rule of professional responsibility, see Hawaii Code of Professional Responsibility, DR 7-102(B)(1), requiring the lawyer to rectify or to reveal client fraud committed "in the course of the representation." Indeed, one advantage of the current amendment is to expand the crime-fraud exception to allow for revelations that Hawaii lawyers are professionally committed to making.

Subsection (d)(2): This new addition to the attorney-client privilege exceptions conforms the rule of privilege to the lawyers' professional responsibility rule, see Hawaii Code of Professional Responsibility, DR 4-101(C)(3), permitting a lawyer to reveal the client's intention "to commit a crime, and the information necessary to prevent the crime." DR 4-101(C)(3) is permissive, but tort law, cf. Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 551 P.2d 334 (1976), may compel such a revelation.

There may be substantial overlap between subsections (d)(1) (crime-fraud exception) and (d)(2) (this rule), but the underlying policies are not the same. The crime-fraud exception is designed to promote the rectification of client fraud committed in exploitation of legal consultation; the present rule, on the other hand, relaxes the privilege bar to enable the lawyer to try to prevent the crime or fraud.

Subsection (d)(7): This new rule recognizes that, in the exercise of their professional responsibility and in complying with applicable professional norms, lawyers may be duty bound to divulge what would otherwise constitute confidential information covered by Rule 503. In such instances the privilege should yield. Most such revelations would not be testimonial, and so the privilege, which applies only in court proceedings, see Rules 101 and 1101, would strictly speaking not be a bar. Just such an analysis likely explains the failure of the former rule to countenance revelation of a client's intent to commit a serious crime. On the other hand, many lawyers believe that Rule 503 expresses policy that should carry over and inform the exercise of professional obligations and norms. This rule makes clear that the privilege will yield to the professional duty.

 

Rules of Court

 

See HRPC rule 1.6.

 

Law Journals and Reviews

 

Searching for Confidentiality in Cyberspace: Responsible Use of E-mail for Attorney-Client Communications. 20 UH L. Rev. 527 (1998).

Endangering Individual Autonomy in Choice of Lawyers and Trustees--Misconceived Conflict of Interest Claims in the Kamehameha Schools Bishop Estate Litigation. 21 UH L. Rev. 487 (1999).

Understanding the Attorney-Client and Trustee-Beneficiary Relationships in the Kamehameha Schools Bishop Estate Litigation: A Reply to Professor McCall. 21 UH L. Rev. 511 (1999).

 

Case Notes

 

Where defendant contended that documents were privileged from discovery pursuant to joint defense privilege arising from rule 503(b)(3), "pending action ... concerning a matter of common interest" not established. 925 F. Supp. 1478 (1996).

Attorney-client privilege did not apply where (1) defendant had not met its burden of establishing that a document was a confidential communication between defendant and its counsel; and (2) defendant had not provided any information regarding how another document was transmitted to counsel and the court could not find that the communication was confidential. 447 F. Supp. 2d 1131 (2006).

Privilege and "common interest doctrine" or "joint defense doctrine", discussed. 642 F. Supp. 2d 1192 (2009).

Cases decided before adoption of statute--scope and limitations of privilege generally. 62 H. 34, 609 P.2d 137 (1980).

Statement by insured to insurer after accident not within privilege. 68 H. 528, 723 P.2d 171 (1986).

Discussion between defendant and defendant's attorney not confidential within meaning of subsections (a)(5) and (b) where communications between them were knowingly conducted in police informant's presence in courthouse hallway. 84 H. 229, 933 P.2d 66 (1997).

When a prosecutor seeks arguably privileged testimony, the prosecutor must either (1) give notice to the person who might claim the privilege and the person's counsel, so that the person or the person's attorney can seek judicial review of any claim or privilege or waive the privilege, or (2) give notice to the person's counsel and, if the person's counsel does not raise the privilege and seek judicial review, the prosecutor must seek the court's ruling on the privilege issue. 97 H. 512, 40 P.3d 914 (2002).

Where memorandum was prepared on behalf of a representative of developer in an effort to ensure that proposed development met all applicable laws and developer's needs, memorandum was a confidential communication made for the purpose of facilitating the rendition of legal services for developer between developer's representative and a lawyer; thus, trial court did not abuse discretion in determining that memorandum was privileged. 102 H. 465, 78 P.3d 1 (2003).

There is nothing in this rule to suggest that the attorney-client privilege does not apply merely because a bad faith claim has been asserted; plaintiff's contention that plaintiff's bad faith claim against insurer defendant nullified any attorney-client privilege that would otherwise apply rejected. 134 H. 400 (App.), 341 P.3d 1200 (2014).

Where it appeared that at least some of the documents, or at least portions of some, related to the general handling of plaintiff's insurance claim, the circuit court abused its discretion in allowing insurer defendant to withhold all of the documents on its assertion of the attorney-client privilege. 134 H. 400 (App.), 341 P.3d 1200 (2014).

 

 

Previous Vol13_Ch0601-0676 Next