Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Oklahoma |
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(United States)
Firm
Crowe Dunlevy
Contributors
Will Hoch |
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| Is the ACP recognized in your jurisdiction? | Yes, Oklahoma recognizes the attorney-client privilege under 12 Okl. St. Ann. § 2502. |
| 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... | Not applicable. Oklahoma recognizes the attorney-client privilege. |
| 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? | There is no distinction in applying the attorney-client privilege in civil and criminal proceedings under 12 Okl. St. Ann. § 2502. Government authorities may not require disclosure of attorney-client communications or legal work products, absent the exceptions set out below for such subjects generally. |
| 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.) | Although the issue of who a “representative of the client” has not arisen in the Oklahoma courts, the state legislature amended 12 Okl. St. Ann. § 2502(A)(4) to closely follow the Upjohn approach (“any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client”). |
| 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? | 12 Okl. St. Ann. § 2502 does not distinguish between in-house and outside counsel. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Not applicable. Oklahoma is a common-law jurisdiction. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Not applicable. Oklahoma is a common-law jurisdiction. |
| Is the common interest doctrine recognized in your jurisdiction? | Yes, Oklahoma statutorily recognizes the common interest doctrine. |
| How is the doctrine articulated in your jurisdiction? | 12 Okl. St. Ann. § 2502(B)(3) expands the attorney-client privilege to include confidential communications made by the client, the client’s attorney, or either of their representatives “to an attorney or a representative of an attorney representing another party in a pending action and concerning a matter of common interest therein.” |
| Must a common interest agreement be in writing? | There is no explicit requirement that a common interest agreement is in writing in either the statute or current caselaw. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Yes, under 14A Okl. St. Ann. § 3-801–17, litigation funding is permitted. There are various statutory requirements, like the licensing of the litigation funder and various disclosures to the client. There are various Oklahoma Rules of Professional Conduct that are applicable to litigation funding. Comment 13 to Rule 1.7 provides that an attorney may be paid for services by someone other than the client. Rule 1.8(f) states that the client must give informed consent for such an arrangement of payment. Additionally, Rule 5.4 prohibits the direction or regulation of the attorney’s professional judgment by a non-client who is paying the client’s legal fees. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No, this issue has yet to been addressed by the Oklahoma courts. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes, Oklahoma recognizes the crime-fraud exception. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | 12 Okl. St. Ann. § 2502(D)(1) states that there is no attorney-client privilege when “the services of the attorney 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, 12 Okl. St. Ann. § 3226(B)(3) protects material that is “prepared in anticipation of litigation or for trial.” |
| What are the elements of the protection in your jurisdiction? | Ordinarily, “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party….” 12 Okl. St. Ann. § 3226(B)(3)(a). If a party shows “substantial need for the materials … and cannot, without undue hardship, obtain their substantial equivalent by other means,” a court can order production of such material, but the court “shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party’s attorney or another representative concerning the litigation.” 12 Okl. St. Ann. §3226(B)(3(a)-(b). |
| Does your jurisdiction recognize an accountant-client privilege? | Yes, under 12 Okl. St. Ann. § 2502.1, communications between an accountant and client are privileged so long as the confidential communications “were made in the rendition of accounting services.” |
| Does your jurisdiction recognize a mediation privilege? | Yes, under 12 Okl. St. Ann. § 1824(6), mediations are confidential. Additionally, dispute resolutions are confidential under 12 Okl. St. Ann. § 1805. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes, under 12 Okl. St. Ann. § 2408, settlement negotiations are “not admissible to prove liability for the claim, invalidity of the claim or the amount of the claim.” |
Lex Mundi Global Attorney-Client Privilege Guide
Yes, Oklahoma recognizes the attorney-client privilege under 12 Okl. St. Ann. § 2502.
Not applicable. Oklahoma recognizes the attorney-client privilege.
There is no distinction in applying the attorney-client privilege in civil and criminal proceedings under 12 Okl. St. Ann. § 2502. Government authorities may not require disclosure of attorney-client communications or legal work products, absent the exceptions set out below for such subjects generally.
Although the issue of who a “representative of the client” has not arisen in the Oklahoma courts, the state legislature amended 12 Okl. St. Ann. § 2502(A)(4) to closely follow the Upjohn approach (“any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client”).
12 Okl. St. Ann. § 2502 does not distinguish between in-house and outside counsel.
Not applicable. Oklahoma is a common-law jurisdiction.
Not applicable. Oklahoma is a common-law jurisdiction.
Yes, Oklahoma statutorily recognizes the common interest doctrine.
12 Okl. St. Ann. § 2502(B)(3) expands the attorney-client privilege to include confidential communications made by the client, the client’s attorney, or either of their representatives “to an attorney or a representative of an attorney representing another party in a pending action and concerning a matter of common interest therein.”
There is no explicit requirement that a common interest agreement is in writing in either the statute or current caselaw.
Yes, under 14A Okl. St. Ann. § 3-801–17, litigation funding is permitted. There are various statutory requirements, like the licensing of the litigation funder and various disclosures to the client.
There are various Oklahoma Rules of Professional Conduct that are applicable to litigation funding. Comment 13 to Rule 1.7 provides that an attorney may be paid for services by someone other than the client. Rule 1.8(f) states that the client must give informed consent for such an arrangement of payment. Additionally, Rule 5.4 prohibits the direction or regulation of the attorney’s professional judgment by a non-client who is paying the client’s legal fees.
No, this issue has yet to been addressed by the Oklahoma courts.
Yes, Oklahoma recognizes the crime-fraud exception.
12 Okl. St. Ann. § 2502(D)(1) states that there is no attorney-client privilege when “the services of the attorney 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, 12 Okl. St. Ann. § 3226(B)(3) protects material that is “prepared in anticipation of litigation or for trial.”
Ordinarily, “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party….” 12 Okl. St. Ann. § 3226(B)(3)(a).
If a party shows “substantial need for the materials … and cannot, without undue hardship, obtain their substantial equivalent by other means,” a court can order production of such material, but the court “shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party’s attorney or another representative concerning the litigation.” 12 Okl. St. Ann. §3226(B)(3(a)-(b).
Yes, under 12 Okl. St. Ann. § 2502.1, communications between an accountant and client are privileged so long as the confidential communications “were made in the rendition of accounting services.”
Yes, under 12 Okl. St. Ann. § 1824(6), mediations are confidential. Additionally, dispute resolutions are confidential under 12 Okl. St. Ann. § 1805.
Yes, under 12 Okl. St. Ann. § 2408, settlement negotiations are “not admissible to prove liability for the claim, invalidity of the claim or the amount of the claim.”