Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Idaho |
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(United States)
Firm
Hawley Troxell
Contributors
Nick Miller |
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| Is the ACP recognized in your jurisdiction? | Yes, under Idaho rule of evidence (“IRE”) 502 in judicial proceedings and under Idaho code § 9-203 in nonjudicial proceedings. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No, but there is an exception under which there is no privilege under rule 502 if the services of the lawyer were sought or obtained to enable the client to plan or commit a crime or fraud. Not in judicial proceedings where the rule of privilege governs or in administrative proceedings where the agency has adopted the judicial rules. Or in other nonjudicial proceedings in which Idaho code § 9-203 governs, there is no exception or distinction for Public vs. Private clients; the privilege rule and the statute apply equally to both. Idaho has a statute on the books, Idaho code, § 9-203, that provides a privilege from disclosure of confidential communications between (1) husband and wife, (2) attorney and client, (3) clergy or priest and penitent, (4) physician and patient, (5) public officer and another official as to certain communications, (6) certified counselor, psychologist or psychological examiner and examinee, and (7) parent, guardian or legal custodian and ward. This statute is no longer in effect in Idaho judicial proceedings which are governed by ire 501 that provides “except as otherwise provided by constitution, or by statute implementing a constitutional right, or by these of other rules promulgated by the supreme court of this state, no person has a privilege to: (1) refuse to be a witness; (2) refuse to disclose any matter; (3) refuse to produce any object or writing; or (4) prevent another from being a witness or disclosing any matter or producing any object or writing.” rule 501 renders the statute ineffective in judicial proceedings, pursuant to ire 1102, which provides that any statute that is in conflict with the rules is “ineffective.” the statute will still have effect in administrative proceedings where the agency has not adopted the rules of evidence or other nonjudicial proceedings, such as arbitration. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Idaho follows the Upjohn, 449 u.S. 383, 101 s.Ct. 677, approach. (see comment to rule 502, report of the Idaho State Bar Evidence Committee, 1983, revised 6/1/1985, at comment to rule 502, p. 1). |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes, under Idaho evidence rule (“IRE”) 502. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes, if admitted to practice in Idaho and therefore “actively licensed” or licensed as “house counsel” under Idaho bar commission rule (“IBCR”) 225, which limits the scope of practice. |
| Is the common interest doctrine recognized in your jurisdiction? | Yes, Under IRE 502(b) |
| How is the doctrine articulated in your jurisdiction? | Under IRE 502(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 which were made … (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer, or a representative of a lawyer, representing another concerning a matter of common interest … .” ire 502(b)(3). |
| Must a common interest agreement be in writing? | No |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Yes, litigation funding is permitted. There are not any professional rules in this respect. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes, under IRE 502(d)(1). |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | IRE 502(d)(1): “there is no privilege under this rule…. If the services of the lawyer were 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.” |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes. (in the u.S.: what state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) Idaho rule of civil procedure (“IRCP”) 26(b)(3). |
| What are the elements of the protection in your jurisdiction? | IRCP 26(b)(3) provides for protection of trial preparation materials and IRCP 26(b)(4) protects trial preparation experts. Under IRCP 26(b)(3), documents and tangible things are ordinarily protected from discovery if they have been “prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent, but subject to rule 26(b)(4), [re trial preparation experts] those materials may be discovered if: (I) they are otherwise discoverable under rule 26(b)(1) [general scope and limits of discovery]; and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” |
| Does your jurisdiction recognize an accountant-client privilege? | Yes, IRE 515. |
| Does your jurisdiction recognize a mediation privilege? | Yes, IRE 507 and Idaho Uniform Mediation Act, Idaho code § 9-801, et seq. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes, under the mediation rule, IRE 507, the compromise and offers to compromise rule, IRE 408, and the Uniform Mediation Act, I.C. § 9-801, et seq. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes, under Idaho rule of evidence (“IRE”) 502 in judicial proceedings and under Idaho code § 9-203 in nonjudicial proceedings.
N/A
No, but there is an exception under which there is no privilege under rule 502 if the services of the lawyer were sought or obtained to enable the client to plan or commit a crime or fraud.
Not in judicial proceedings where the rule of privilege governs or in administrative proceedings where the agency has adopted the judicial rules. Or in other nonjudicial proceedings in which Idaho code § 9-203 governs, there is no exception or distinction for Public vs. Private clients; the privilege rule and the statute apply equally to both.
Idaho has a statute on the books, Idaho code, § 9-203, that provides a privilege from disclosure of confidential communications between (1) husband and wife, (2) attorney and client, (3) clergy or priest and penitent, (4) physician and patient, (5) public officer and another official as to certain communications, (6) certified counselor, psychologist or psychological examiner and examinee, and (7) parent, guardian or legal custodian and ward. This statute is no longer in effect in Idaho judicial proceedings which are governed by ire 501 that provides “except as otherwise provided by constitution, or by statute implementing a constitutional right, or by these of other rules promulgated by the supreme court of this state, no person has a privilege to: (1) refuse to be a witness; (2) refuse to disclose any matter; (3) refuse to produce any object or writing; or (4) prevent another from being a witness or disclosing any matter or producing any object or writing.” rule 501 renders the statute ineffective in judicial proceedings, pursuant to ire 1102, which provides that any statute that is in conflict with the rules is “ineffective.” the statute will still have effect in administrative proceedings where the agency has not adopted the rules of evidence or other nonjudicial proceedings, such as arbitration.
Idaho follows the Upjohn, 449 u.S. 383, 101 s.Ct. 677, approach. (see comment to rule 502, report of the Idaho State Bar Evidence Committee, 1983, revised 6/1/1985, at comment to rule 502, p. 1).
No
Yes, under Idaho evidence rule (“IRE”) 502.
Yes, if admitted to practice in Idaho and therefore “actively licensed” or licensed as “house counsel” under Idaho bar commission rule (“IBCR”) 225, which limits the scope of practice.
Yes, Under IRE 502(b)
Under IRE 502(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 which were made … (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer, or a representative of a lawyer, representing another concerning a matter of common interest … .” ire 502(b)(3).
No
Yes, litigation funding is permitted. There are not any professional rules in this respect.
No
Yes, under IRE 502(d)(1).
IRE 502(d)(1): “there is no privilege under this rule…. If the services of the lawyer were 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.”
Yes. (in the u.S.: what state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) Idaho rule of civil procedure (“IRCP”) 26(b)(3).
IRCP 26(b)(3) provides for protection of trial preparation materials and IRCP 26(b)(4) protects trial preparation experts. Under IRCP 26(b)(3), documents and tangible things are ordinarily protected from discovery if they have been “prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent, but subject to rule 26(b)(4), [re trial preparation experts] those materials may be discovered if: (I) they are otherwise discoverable under rule 26(b)(1) [general scope and limits of discovery]; and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”
Yes, IRE 515.
Yes, IRE 507 and Idaho Uniform Mediation Act, Idaho code § 9-801, et seq.
Yes, under the mediation rule, IRE 507, the compromise and offers to compromise rule, IRE 408, and the Uniform Mediation Act, I.C. § 9-801, et seq.