The Court of Appeals for the Ninth Circuit set forth a five prong test to determine whether an employee can establish personal attorney-client privilege jointly held with his employer. In Us v. Graf F3d (9th Circ. 2010) 20110 WL 2671813 (2010) the defendant in a criminal trial sought to prevent the testimony of attorneys employed the company for which he was determined to have been a “functional employee.” The company had waived the attorney-client privilege and defendant sought to establish a personal privilege for himself. The District Court’s ruling that he could not establish a personal privilege was upheld by the Court of Appeals.
In reading its decision the court held that individual corporate officers or employees seeking to assert a personal claim of attorney-client privilege must affirmative show five factors:
First, they must show they approached counsel for the purpose of seeking legal advice. Second, they must demonstrate that when they approached counsel they made it clear that they were seeking legal advice in their individual rather than in their representative capacities. Third, they must demonstrate that the counsel saw fit to communicate with them in their individual capacities, knowing that a possible conflict could arise. Fourth, they must prove that their conversations with counsel were confidential. And Fifth, they must show that the substance of their conversations with counsel did not concern matters within the company or the general affairs of the company.
The Court held that the defendant failed to satisfy all of the factors.