The First Federal Counsel Privilege Rule is Now Law

The President has signed Senate Bill S. 2450, the first federal rule of evidence specifically addressing counsel privilege waiver. New Federal Rule of Evidence 502 has seven segments:

(a) A disclosure made in a federal proceeding or to a federal agency effects a waiver of the privileges only if the disclosure was intentional, only for communications on the same subject, and only if fairness requires a conclusion of waiver.

(b) Waiver will not be found if the disclosure was inadvertent, and the party took reasonable steps to prevent disclosure and to rectify the error.

(c) Disclosure of counsel-privileged information in a state proceeding does not effect a federal waiver if the state court has not found waiver, and there would be no waiver under this rule or state law.

(d) A federal court order to avoid waiver in a case governs the effect of disclosure in that litigation in relation to other federal and state proceedings.

(e) An agreement between parties concerning waiver will only bind the parties unless a court adopts the agreement.

(f) This rule overrides other Federal Rules of Evidence on its subject matter, even where state law provides the rule of decision.

(g) The counsel privileges of attorney-client privilege and work product protection are conventionally defined.

New Rule 502 is effective for new cases and for pending cases “insofar as is just and practicable.”