Wis. Stat. § 905.03

Current through Acts 2023-2024, ch. 272

Section 905.03 - Lawyer-client privilege

(1) DEFINITIONS. As used in this section:

(a) 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.

(b) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

(c) A "representative of the lawyer" is one employed to assist the lawyer in the rendition of professional legal services.

(d) A communication is "confidential" if not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(2) 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: between the client or the client's representative and the client's lawyer or the lawyer's representative; or between the client's lawyer and the lawyer's representative; or by the client or the client's lawyer to a lawyer representing another in a matter of common interest; or between representatives of the client or between the client and a representative of the client; or between lawyers representing the client.

(2m) PRIVILEGE WHEN CLIENT IS A FIDUCIARY. When a lawyer represents a client who is serving as a personal representative, trustee, trust protector, directing party, guardian, conservator, guardian ad litem, attorney in fact for financial matters, health care agent, or other fiduciary, the lawyer's client is the person who is acting as a fiduciary, and not anyone to whom the client owes fiduciary or other duties, and communication between the lawyer and such a client is protected from disclosure to the same extent as if the client was not acting as a fiduciary. The privilege may be claimed by the client, or otherwise as provided in sub. (3), even against anyone to whom the client owes fiduciary or other duties.

(3) WHO MAY CLAIM THE PRIVILEGE. The privilege 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 corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. The lawyer's authority to do so is presumed in the absence of evidence to the contrary.

(4) EXCEPTIONS. There is no privilege under this rule:

(a)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; or

(b)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; or

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

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

(e)Joint clients. As to a communication relevant to a matter of common interest between 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 any of the clients.

(5) FORFEITURE OF PRIVILEGE.

(a)Effect of inadvertent disclosure. A disclosure of a communication covered by the privilege, regardless of where the disclosure occurs, does not operate as a forfeiture if all of the following apply:

1. The disclosure is inadvertent.

2. The holder of the privilege or protection took reasonable steps to prevent disclosure.

3. The holder promptly took reasonable steps to rectify the error, including, if applicable, following the procedures in s. 804.01 (7).

(b)Scope of forfeiture. A disclosure that constitutes a forfeiture under par. (a) extends to an undisclosed communication only if all of the following apply:

1. The disclosure is not inadvertent.

2. The disclosed and undisclosed communications concern the same subject matter.

3. The disclosed and undisclosed communications ought in fairness to be considered together.

Wis. Stat. § 905.03

Amended by Acts 2023 ch, 127,s 149, eff. 3/23/2024.

Sup. Ct. Order, 59 Wis. 2d R1, R111 (1973); 1991 a. 32; Sup. Ct. Order No. 12-03, 2012 WI 114, filed 11-1-12, eff. 1/1/2013.

That there was a communication from a client to an attorney is insufficient to find the communication is privileged. Jax v. Jax, 73 Wis. 2d 572, 243 N.W.2d 831 (1975). There is not a general exception to the lawyer-client privilege in legal malpractice cases. The extent of the privilege is discussed. Dyson v. Hempe, 140 Wis. 2d 792, 413 N.W.2d 379 (Ct. App. 1987). When a defendant alleges ineffective assistance of counsel, the lawyer-client privilege is waived to the extent that counsel must answer questions relevant to the allegation. State v. Flores, 170 Wis. 2d 272, 488 N.W.2d 116 (Ct. App. 1992). A litigant's request to see his or her file that is in the possession of current or former counsel does not waive the attorney-client and work-product privileges and does not allow other parties to the litigation discovery of those files. Borgwardt v. Redlin, 196 Wis. 2d 342, 538 N.W.2d 581 (Ct. App. 1995), 94-2701. Waiver of attorney-client privilege is not limited to direct attacks on attorney performance. An attempt to withdraw a plea on the grounds that it was not knowingly made raised the issue of attorney performance and resulted in a waiver of the attorney-client privilege. State v. Simpson, 200 Wis. 2d 798, 548 N.W.2d 105 (Ct. App. 1996), 95-1129. Attorney-client privilege is not waived by a broadly worded insurance policy cooperation clause in a coverage dispute. There is not a common interest exception to the privilege when the attorney was not consulted in common by two clients. State v. Hydrite Chemical Co., 220 Wis. 2d 51, 582 N.W.2d 411 (Ct. App. 1998), 96-1780. The attorney-client privilege is waived when the privilege holder attempts to prove a claim or defense by disclosing or describing an attorney-client communication. State v. Hydrite Chemical Co., 220 Wis. 2d 51, 582 N.W.2d 411 (Ct. App. 1998), 96-1780. A videotaped interview of a crime victim conducted by the alleged perpetrator's spouse was not privileged as attorney communication because it was made in the presence of a third-party, the victim, and was not confidential. Estrada v. State, 228 Wis. 2d 459, 596 N.W.2d 496 (Ct. App. 1999), 98-3055. A former director cannot act on behalf of the client corporation and waive the lawyer-client privilege. Even though documents were created during the former director's tenure as a director, a former director is not entitled to documents in the corporate lawyer's files. Lane v. Sharp Packaging Systems, 2002 WI 28, 251 Wis. 2d 68, 640 N.W.2d 788, 00-1797. Billing records are communications from the attorney to the client, and producing those communications violates the lawyer-client privilege if production of the documents reveals the substance of lawyer-client communications. Lane v. Sharp Packaging Systems, 2002 WI 28, 251 Wis. 2d 68, 640 N.W.2d 788, 00-1797. The test for invoking the crime-fraud exception under sub. (4) (a) is whether there is reasonable cause to believe that the attorney's services were utilized in furtherance of the ongoing unlawful scheme. If a prima facie case is established, an in camera review of the requested documents is required to determine if the exception applies. Lane v. Sharp Packaging Systems, 2002 WI 28, 251 Wis. 2d 68, 640 N.W.2d 788, 00-1797. Counsel's testimony on opinions, perceptions, and impressions of a former client's competency violated the attorney-client privilege and should not have been revealed without the consent of the former client. State v. Meeks, 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859, 01-0263. A lawyer's voluntary production of documents in response to opposing counsel's discovery request does not constitute a waiver of the attorney-client privilege under this section when the lawyer does not recognize that the documents are subject to the attorney-client privilege and the documents are produced without the consent or knowledge of the client. The agency doctrine does not apply to waiver of attorney-client privilege as it relates to privileged documents. Harold Sampson Trust v. Linda Gale Sampson Trust, 2004 WI 57, 271 Wis. 2d 610, 679 N.W.2d 794, 02-1515. The defendant's lawyer-client privilege is waived to the extent that counsel must answer questions relevant to a charge of ineffective assistance. This application of the attorney-client privilege applies with equal force when a defendant in a criminal case claims that he or she cannot effectively communicate with his or her lawyer. Otherwise no court could assess whether there was a total lack of communication between them. State v. Boyd, 2011 WI App 25, 331 Wis. 2d 697, 797 N.W.2d 546, 10-1090. An association invoking attorney-client privilege is the client and has the exclusive authority to withhold privileged information from current individual directors. When a lawyer represents an organization, the organization is the client, not the organization's constituents. Fouts v. Breezy Point Condominium Ass'n, 2014 WI App 77, 355 Wis. 2d 487, 851 N.W.2d 845, 13-1585. Attorney-client privilege in Wisconsin. Stover and Koesterer. 59 MLR 227. Attorney-client privilege: Wisconsin's approach to exceptions. 72 MLR 582 (1989). Attorney-Client Privilege and the Kovel Doctrine: Should Wisconsin Extend the Privilege to Communications with Third-Party Consultants? Lopez. 102 MLR 605 (2018).