Defining the Parameters of the Attorney-Client Privilege in Iowa

by Frank Harty, Nyemaster Goode, P.C., Des Moines, IA
(Defense Update - Vol. XX, No. 2, Spring 2018)

The traditional heart of the attorney-client privilege in Iowa is well defined. So are the common events that result in a waiver of the privilege. It is the somewhat porous borders of privilege and waiver that pose practical problems for Iowa lawyers. Vexing issues surrounding partial waiver, subject matter waiver and inadvertent waiver regularly confront Iowa lawyers. In a recent decision the Iowa Supreme Court clarified the law surrounding waiver of the privilege. See Fenceroy v. Gelita USA et al No. 16-0775 (Iowa Supreme Court, February 23, 2018.) In Fenceroy the Court held when a corporate entity raises an affirmative defense that turns on the efficacy of an internal investigation the company waives the attorney-client privilege and work product doctrine protections over testimony and documents related to the investigation. Although the Fenceroy opinion dealt with a very specific employment discrimination defense, the Fenceroy rationale provides a roadmap for navigating the outer limits of privilege and waiver in a number of contexts. Lawyers overseeing safety, financial and ethical investigations should pay close attention to the Fenceroy decision. 

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