STATE OF OKLAHOMA

2nd Session of the 53rd Legislature (2012)

SENATE BILL 1205	By:	Anderson

AS INTRODUCED

An Act relating to privileged disclosure; amending 12 O.S. 2011, Section 2502, which relates to attorney-client privilege; stating effect of certain agreement on specified parties; authorizing certain order; stating effect of certain order; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     AMENDATORY     12 O.S. 2011, Section 2502, is amended to read as follows:
Section 2502.  A.  As used in this section:
1.  An "attorney" 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;
2.  A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who consults an attorney with a view towards obtaining legal services or is rendered professional legal services by an attorney;
3.  A "representative of an attorney" is one employed by the attorney to assist the attorney in the rendition of professional legal services;
4.  A "representative of the client" is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client; and
5.  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.
B.  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 a representative of the client and the client's attorney or a representative of the attorney;
2.  Between the attorney and a representative of the attorney;
3.  By the client or a representative of the client or the client's attorney or a representative of the attorney to an attorney or a representative of an attorney representing another party in a pending action and concerning a matter of common interest therein;
4.  Between representatives of the client or between the client and a representative of the client; or
5.  Among attorneys and their representatives representing the same client.
C.  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 attorney or the attorney'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.  There is no privilege under this section:
1.  If 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;
2.  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.  As to a communication relevant to an issue of breach of duty by the attorney to the client or by the client to the attorney;
4.  As to a communication necessary for an attorney to defend in a legal proceeding an accusation that the attorney assisted the client in criminal or fraudulent conduct;
5.  As to a communication relevant to an issue concerning an attested document to which the attorney is an attesting witness;
6.  As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to an attorney retained or consulted in common, when offered in an action between or among any of the clients; or
7.  As to a communication between a public officer or agency and its attorney unless the communication concerns a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest.
E.  A disclosure of a communication or information covered by the attorney-client privilege or the work-product doctrine does not operate as a waiver if:
1.  The disclosure was inadvertent;
2.  The holder of the privilege took reasonable steps to prevent disclosure; and
3.  The holder of the privilege took reasonable steps to rectify the error including, but not limited to, information falling within the scope of paragraph 4 of subsection B of Section 3226 of this title, if applicable.
F.  Disclosure of a communication or information meeting the requirements of an attorney-client privilege as set forth in this section or the work-product doctrine to a governmental office, agency or political subdivision in the exercise of its regulatory, investigative, or enforcement authority does not operate as a waiver of the privilege or protection in favor of nongovernmental persons or entities.  Disclosure of such information does not waive the privilege or protection of undisclosed communications on the same subject unless:
1.  The waiver is intentional;
2.  The disclosed and undisclosed communications or information concern the same subject matter; and
3.  Due to principles of fairness, the disclosed and undisclosed communications or information should be considered together.
G.  An agreement on the effect of disclosure in an Oklahoma state court proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.  A court of this state may order that an attorney-client privilege or work-product protection is not waived by disclosure connected with the litigation pending before the court, in which event such disclosure is also not a waiver in any other federal or state proceeding.
SECTION 2.  This act shall become effective November 1, 2012.

53-2-2203	TEK	1/17/2012 9:59:15 AM