TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 12, 2013
RE: Rule 502, N.D.R.Ev., Husband-Wife Privilege
Proposed amendments to Rule 502 based on the 1999 amendments to the Uniform Rules of Evidence are attached. The amendments seem primarily intended to simplify the language of the rule and to improve its organization.
A substantive change is proposed to paragraph (a)(5) adding the language "or reasonably believed by the client to be employed" to assure that the client does not lose the benefit of the privilege in situations where a representative of a lawyer is not in the employment of the lawyer, but is nevertheless reasonably believed by the client to be employed by the lawyer.
Another proposed substantive change is to paragraph (d)(4), which would provide that there is no privilege under the rule "as to a communication necessary for a lawyer to defend in a legal proceeding a charge that the lawyer assisted the client in criminal or fraudulent conduct."