Monday, October 29, 2012

UPDATED: Oklahoma Bar Association House of Delegates approves proosal to amend to Section 2502 of the Oklahoma Evidence Code

On Friday, November 16, 2012, the Oklahoma Bar Association House of Delegates approved a proposed amendment to Section 2502, adopting the federal Upjohn rule.  This proposal now becomes part of the OBA's legislative program for 2013.  This proposal must be approved by the legislature and signed by the Governor before it becomes law.

The proposal modifies Section 2502 to remove the control group aspect of Section 2502(A)(4) so that the attorney-client privilege in Oklahoma protects attorney communications with corporate employees in the same manner as those communications are protected under the Upjohn rule (and the rule in most other states).  The Upjohn rule is found in Upjohn v. United States, 449 U.S. 383 (1981).  There, the U.S. Supreme Court struck down the “control group test,” which would have protected only communications between attorneys and the officers and agents responsible for direction action in response to legal advice.  “Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.”  Upjohn, 449 U.S. at 390.

Of course, in federal court, the rules governing privilege for the most part are contained in court decisions or are found through reference to state law.  See Fed. R. Evid. 501.  As a result, the best method of arriving at a proper amendment to the text of 12 O.S. 2502 was to examine the rules and statutes in other states.  At least as of 1997, fourteen states had adopted the Upjohn rule, while a majority of the states had not yet decided the issue.  Brian E. Hamilton, Conflict, Disparity, and Indecesion: The Unsettled Corporate Attorney-Client Privilege, 1997 Ann. Survey of Am. Law 629, 633-40 (1997).

In drafting the proposal, the OBA Civil Procedure & Evidence Code Committee looked to the Texas Rules of Evidence as an example.  Under the Texas Rules of Evidence, “representative of the client” is defined as “(i) a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client or (ii) 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.”  Tex. R. Evid. 503(a)(2).

In addition to specific states, the Bar can look to the National Conference of Commissioners on Uniform State Laws (“NCCUSL”).  In 1986, the NCCUSL modified Rule 502 of the Model Rules of Evidence (1974), to adopt the Upjohn test.  This revision survived and is included in Rule 502 of the Model Rules of Evidence (1999).

The proposal before the Bar follows the text of both the Texas rule and the 1986 amendment to Rule 502 of the Model Rules of Evidence (1974).