Lex Mundi Global Attorney-Client Privilege Guide |
|
USA, North Carolina |
|
|
(United States)
Firm
Womble Bond Dickinson
Contributors
Philip Mohr |
|
| Is the ACP recognized in your jurisdiction? | Yes |
| 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? | May government authorities require disclosure of attorney-client communications and legal work product? There is no distinction made in applying the ACP in the civil and criminal proceedings, although in each setting a court will not apply the ACP if the communication is made in furtherance of a crime or an act of fraud. In a criminal proceeding where the client is deceased, North Carolina may also recognize an exception to the ACP. |
| 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.) | North Carolina appellate courts have not yet affirmatively adopted any one particular test. |
| 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? | In-house counsel do not have to meet a higher burden, but a court will usually examine the in-house counsel’s communications to ensure that such communications are for purposes of giving or obtaining legal advice. Communications that seek business advice and/or merely copy the in-house counsel on the communication will not be protected by the ACP |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | In-house counsel may assert the APC but, as explained above, a court will only recognize the privilege if the communication is for purposes of giving or obtaining legal advice. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes |
| Is the common interest doctrine recognized in your jurisdiction? | Yes; it is recognized as an exception to the general rule that disclosure of an otherwise privileged communication destroys the privilege. |
| How is the doctrine articulated in your jurisdiction? | The parties seeking to invoke the common interest doctrine must be able to demonstrate that the specific communication seeking to be protected was made for purposes of a common legal interest; a business or commercial interest will not suffice. |
| Must a common interest agreement be in writing? | No, but a written agreement is preferred. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | North Carolina permits litigation funding, so long as the creditor does not interfere in the case for purposes of “stirring up strife and/or continuing the litigation.” There are many professional ethics rules that apply to third-party litigation funding, many of which are fact-specific. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No appellate court in North Carolina has addressed this issue. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | In re Miller, 357 N.C. 316, 584 S.E.2d 772 (2003) and cases cited therein. |
| 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)?) | North Carolina Rule of Civil Procedure 26(b)(3). |
| What are the elements of the protection in your jurisdiction? | 1) that the material consists of documents or tangible things; 2) which were prepared in anticipation of litigation or for trial; 3) by or for another party or its representatives which may include an attorney, consultant or agent. In addition, the material must not be prepared in the regular course of business. |
| Does your jurisdiction recognize an accountant-client privilege? | No such privilege has been explicitly recognized. |
| Does your jurisdiction recognize a mediation privilege? | There is a limited mediation privilege; settlement offers and statements within the mediation are not admissible and are privileged. However, evidence otherwise discoverable is not deemed inadmissible merely because it is discussed in the mediation conference. Moreover, absent agreement of the parties, the mediation conference is not confidential. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Settlement offers are privileged and inadmissible |
Lex Mundi Global Attorney-Client Privilege Guide
USA, North Carolina
(United States) Firm Womble Bond DickinsonContributors Philip Mohr
Updated 19 Mar 2020Yes
N/A
May government authorities require disclosure of attorney-client communications and legal work product? There is no distinction made in applying the ACP in the civil and criminal proceedings, although in each setting a court will not apply the ACP if the communication is made in furtherance of a crime or an act of fraud. In a criminal proceeding where the client is deceased, North Carolina may also recognize an exception to the ACP.
North Carolina appellate courts have not yet affirmatively adopted any one particular test.
In-house counsel do not have to meet a higher burden, but a court will usually examine the in-house counsel’s communications to ensure that such communications are for purposes of giving or obtaining legal advice. Communications that seek business advice and/or merely copy the in-house counsel on the communication will not be protected by the ACP
In-house counsel may assert the APC but, as explained above, a court will only recognize the privilege if the communication is for purposes of giving or obtaining legal advice.
Yes
Yes; it is recognized as an exception to the general rule that disclosure of an otherwise privileged communication destroys the privilege.
The parties seeking to invoke the common interest doctrine must be able to demonstrate that the specific communication seeking to be protected was made for purposes of a common legal interest; a business or commercial interest will not suffice.
No, but a written agreement is preferred.
North Carolina permits litigation funding, so long as the creditor does not interfere in the case for purposes of “stirring up strife and/or continuing the litigation.” There are many professional ethics rules that apply to third-party litigation funding, many of which are fact-specific.
No appellate court in North Carolina has addressed this issue.
Yes
In re Miller, 357 N.C. 316, 584 S.E.2d 772 (2003) and cases cited therein.
North Carolina Rule of Civil Procedure 26(b)(3).
1) that the material consists of documents or tangible things; 2) which were prepared in anticipation of litigation or for trial; 3) by or for another party or its representatives which may include an attorney, consultant or agent. In addition, the material must not be prepared in the regular course of business.
No such privilege has been explicitly recognized.
There is a limited mediation privilege; settlement offers and statements within the mediation are not admissible and are privileged. However, evidence otherwise discoverable is not deemed inadmissible merely because it is discussed in the mediation conference. Moreover, absent agreement of the parties, the mediation conference is not confidential.
Settlement offers are privileged and inadmissible