Del. R. Evid. 502

As amended through December 15, 2023

Rule 502 - Lawyer-Client Privilege

(a)Definitions. As used in this rule:

(1) A "client" is a person, public officer or corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer. For the purposes of this Rule, "client shall include, without limitation, officers, directors, and employees of (a) any business entity that is organized under the laws of this State, and (b) any business entity organized under the laws of any nation other than the United States that owns or controls a business entity that is organized under the laws of this State.

(2) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation. For purposes of this Rule, "lawyer" shall include persons who are employed or engaged by a business entity, to serve as "in house" counsel to that entity and/or to any of its wholly owned or controlled affiliates.

(4) Omitted.

(5) A "representative of the lawyer" is one employed, or reasonably believed by the client to be employed, by the lawyer to assist the lawyer in the rendition of professional legal services.

(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 (1) between the client or the client's representative and the client's lawyer or the lawyer's representative, (2) between the lawyer and the lawyer's representative, (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

(c)Who may claim the privilege. The privilege under this rule may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client or the successor, trustee or similar representative of a deceased client or the successor, trustee or similar representative of a corporation, association or other organization, whether or not in existence. A person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.

(d)Exceptions. There is no privilege under this rule:

(1)Furtherance of crime or fraud. 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;

(2)Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(3)Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer;

(4)Accusations against a lawyer. As to a communication necessary for a lawyer to defend in a legal proceeding an accusation that the lawyer assisted the client in criminal or fraudulent conduct;

(5)Document attested by a lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(6)Joint clients. As to a communication relevant to a matter of common interest between or among 2 or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.

(7)Public officer or agency. [Omitted].

Del. R. Evid. 502

Amended November 28, 2017, effective 1/1/2018.

Comment

See comment to D.R.E. 501.

The subsections of D.R.E. 502(a) were reordered in 2001 to track U.R.E. 502(a). U.R.E. 502 was based on a draft of F.R.E. 503.

U.R.E. 502(a) (4) was not adopted in Delaware. It was believed that a definition of a representative of a client should be left to case law.

D.R.E. 502(b) tracks U.R.E. 502(b) except that the word "therein" and the words "party in a pending action and concerning" were deleted and the word "in" was inserted in lieu thereof in D.R.E. 502(b)(3). The purpose of this change was to make D.R.E. 502(b)(3) comply with the original draft of the F.R.E. prepared by the Supreme Court Advisory Committee and to make it clear that D.R.E. 502(b)(3) applies even if no litigation is actually pending.

D.R.E. 502(c) tracks U.R.E. 502(c).

D.RE. 502(d)(1), (2), (3), (4), (5), and (6) track U.R.E. 502(d)(1), (2), (3), (4) (5), and (6). U.R.E. 502(d)(7) was not adopted. The 1980 Committee believed that the Delaware Freedom of Information Act (29 Del. C., Chapter 100) adequately covers the area of privilege as it relates to public officers of agencies. The 1980 Committee also believed that U.R.E. 502(d)(7) would impose too great a burden upon a governmental agency.

For prior Delaware cases illustrating the law covered by this D.R.E., see State Hwy. v. 62,662.47 Acres of Land, Del. Super., 193 A.2d 799 (1963); Texaco, Inc. v. Phoenix Steel Corp., Del. Ch., 264 A.2d 523 (1970); Wallace v. Wilmington & N.R Co., Del. Super., 8 Houst. 529, 18 A. 818 (1889); Riggs Nat'l Bank v. Zimmer, Del. Ch., 355 A.2d 709 (1976); Phillips v. Delaware Power & Light Co., Del. Super., 194 A.2d 690 (1963); Valente v. Pepsico, 68 F.RD. 361 (D. Del. 1975); Graham v. Allis-Chalmers Mfg. Co., Del. Supr., 188 A.2d 125 (1963); Wise v. Western Union Tel. Co., Del. Super., 178 A. 640 (1935); State v. Brown, Del. Oyer & Term., 36 A. 458 (1896).

D.R.E. 502 was amended in 2017 to clarify that the attorney-client privilege extends to foreign parent entities of Delaware subsidiaries and covers in-house counsel of foreign entities and controlled affiliates.