The confidentiality of communications between attorneys and their clients, commonly referred to as attorney-client privilege, is a fundamental and critical aspect of the American legal system. Federal and State Courts consistently protect the sanctity of exchanges between attorneys and those they represent. In doing so, the Courts have described the attorney-client privilege as the bedrock of effective legal representation in the United States.
It appears at least one ALJ at the Oregon Workers’ Compensation Board is prepared to diverge from well-established legal precedent and mandate disclosure of communications between defense attorneys and their clients at the request of claimant’s counsel. Recently, an ALJ issued an Order requiring disclosure of all claim notes maintained by the administering agent for the employer/insurer for inspection. Per this Order, the ALJ will unilaterally decide what should be protected from disclosure to claimant’s counsel. It is important to note the ALJ reviewing the privileged materials also will be the trier-of-fact in the case, despite a specific request the ALJ recuse himself/herself from this function. Needless to say the employer’s right to a fair trial is extremely compromised if the ALJ deciding the case has personally reviewed communications between the defense attorney and their client regarding litigation strategy, even if the communications are never forwarded to the adverse party.
The legal basis for the ALJ’s disturbing Order is an administrative rule that allows for disclosure of certain claim notes generated by the insurer/employer. It was common practice for ALJs to review claim notes first to determine if they could be disclosed to adverse parties; however, this inspection process historically was done by an ALJ other than the assigned trier-of-fact upon request and excluded communications with defense counsel. The ALJ is now poised to break with this protocol by reviewing privileged conversations between an attorney and his/her client despite continuing to preside over the case. Equally troublesome is the ALJ’s determination a single administrative rule trumps centuries of Court rulings that require attorney-client privilege be preserved absent extreme circumstances, which clearly are not present here.
In order for employers and insurers to preserve their rights to attorney-client privilege, we recommend immediately separating communications to/from defense counsel from claim notes. The common practice of “cutting and pasting” defense attorney emails, status reports, etc. into claim notes should cease at once. Insurers, administering agencies and employers can no longer comingle claim notes with attorney correspondence; otherwise they run the risk of unintentionally forfeiting confidentiality and the right to a fair trial at the Workers’ Compensation Hearings Division.