Professor Henry Noyes, of Chapman University School of Law, has posted on SSRN an article analyzing the implications of new Federal Rule of Evidence 502.
According to Professor Noyes:
“Rule 502 quietly takes the first steps toward federalization of two areas of law that have traditionally been subject to state regulation: The law governing waiver of the attorney client privilege and the law governing an attorney’s duties of professional conduct. . . .
“This initial foray into the area of state privilege law and state law of professional responsibility has long been resisted because of abiding concern with comity, issues of federalism and respect for the autonomous operation of state courts and state litigation systems. This Article identifies and considers the significant (and unforeseen) practical consequences of breaching the protective zone that has previously existed surrounding the States’ operation of their own court systems, state rules of procedure and state rules of professional responsibility.”