united-states civil-law tort attorney-client-privilege
Are attorneys legally or ethically bound to share evidence in civil cases before complaints are filed?
<p>Are attorneys legally or ethically bound to share evidence or discovery materials in civil matters before actual complaints are filed?</p>
<p>Let's say Person A (a non-public figure) suspects Person B (a non-public figure) of a civil tort, such as defamation.</p>
<p>Person A gets Lawyer A to send a cease and desist letter to Person B. Person B shows the letter to their Lawyer (B). Lawyer B asks Person B if they have indeed defamed Person A. Person B says they have and outlines the incidents. Lawyer B determines there is enough evidence that the defamation did damage the reputation of Person A and more than likely resulted in monetarily loses in business for Person A.</p>
<p>Is Lawyer B obligated in any legal or ethical sense to inform Lawyer A of what Person B said before a complaint is filed? Or only after a complaint is filed? And only when discovery takes place? Or would Lawyer B inform Lawyer A out of common and/or professional courtesy?</p>

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<p>There are two issues here:</p>
<ol>
<li>B's &quot;confession&quot; to their lawyer would fall within the definition of legal professional privilege, specifically <a href="https://www.lawsociety.org.uk/topics/civil-litigation/legal-professional-privilege-guide#:%7E:text=Litigation%20privilege%20protects%20communications%20between,existing%20or%20reasonably%20contemplated%20litigation" rel="nofollow noreferrer">litigation privilege</a>:</li>
</ol>
<blockquote>
<p>Litigation privilege protects communications between lawyers or their clients and any third party for the purpose of obtaining advice or information in connection with existing <strong>or reasonably contemplated litigation</strong>.</p>
</blockquote>
<p>So unless B gives their permission, this cannot be disclosed.</p>
<ol start="2">
<li>A party's duty for disclosure, under <a href="https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31#31.1" rel="nofollow noreferrer">Part 31</a> Civil Procedure Rules, begins once proceedings have started by a claim being issued under <a href="https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07#7.2" rel="nofollow noreferrer">Rule 7.2(1)</a> <strong>unless</strong> <a href="https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31#31.16" rel="nofollow noreferrer">Rule 31.16</a> applies as <a href="https://www.legislation.gov.uk/ukpga/1981/54/section/33?timeline=false" rel="nofollow noreferrer">section 33</a> Supreme Court Act 1981<sup>1</sup> permits disclosure before proceedings have started.</li>
</ol>
<p>So unless A makes, and is successful with, a section 33 application there is no legal obligation on B for disclosure that is not protected by legal professionalprivilege.</p>
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<p><sup>1</sup> Defamation is dealt with as a &quot;media and communications claim&quot; under <a href="https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part53#IDA1B1HC" rel="nofollow noreferrer">Rule 53.1(3)</a> in the High Court so the other method of pre-proceedings disclosure at section 52 County Courts Act 1984 does not apply here.</p>
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<p>Client B's confession is a privileged communication.</p>
<p>In the absence of special circumstances, Lawyer B is legally and ethically obligated to never share it with Lawyer A.</p>
