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Christine Morganti
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cmorganti@nmbar.org

Edna Epstein Speaks on Attorney-Client Privilege at State Bar of New Mexico Annual Meeting

Author of the perennial ABA best seller The Attorney-Client Privilege and the Work-Product Doctrine, Edna Epstein spoke at the opening session of the State Bar annual meeting on July 10. Epstein, an attorney from Chicago, has handled a wide variety of litigation matters and helped thousands of attorneys to better understand this incredibly complex area of the law.

Typically, Epstein pointed out, communication that is spoken or written in confidence between a client seeking legal advice and a lawyer is privileged, including something that an attorney observes about a client. Epstein barely scratched the surface of the contents of her two-volume book. Her presentation centered on the fact that knowing which documents cannot be discoverable and are not admissible due to privilege or work product protection can be difficult.

 

Epstein presented advice on following certain procedures to preserve privilege, handling privileged information in depositions and marking and protecting documents. She also cautioned about the inadvertent disclosure of information through the sending of an e-mail to the wrong address.

 

“The attorney recipient of privileged communication has the burden to tell opposing counsel that he or she made a mistake. The attorney must notify the other side and litigate the issue,” she explained.

 

“Knowing which person is the client [e.g., a corporation, CEO or employee] is the key to understanding whether or not privilege applies,” Epstein said.

 

Epstein foresees an exponential rise in cases regarding privilege due to today’s economic environment.