Hickman Meets Upjohn

On the night of February 11, 1987, a tugboat named the "Benoit" sank mysteriously in Boston Harbor. Eight of the nine crewmen aboard were lost. The following morning, the Coast Guard found the ninth crewman, Richard Rothwell, clinging to a piece of floating debris. Rothwell was in shock and unable to speak.

The Benoit was owned by the Brot Company, of which Manny Brot was the CEO. Manny called Sheila Counts, the company's lawyer, as soon as he heard about the loss of the Benoit. He said, "Lawsuits against the company because of the sinking of the Benoit are inevitable. I want you to defend the company zealously in everything connected with the Benoit. I want your advice about how the company should proceed at every point."

Counts asked if she would have full cooperation within the company. "Absolutely," said Manny.

Rothwell regained effective consciousness at 10 a.m. on February 13. His family spoke with him first. When they asked him what happened, he told them that he was not ready to talk about it yet.

Sheila Counts and Manny Brot then spoke with him. Manny first introduced Counts to Rothwell. Counts then explained to Rothwell that this meeting was important to the company and asked if Rothwell objected to it being tape-recorded. Rothwell said he had no objection. Counts turned on a tape recorder and asked Rothwell to say, on tape, that he had no objection to the recording. Rothwell complied.

Manny then read a letter he had written to Rothwell at Counts's suggestion. After reading the letter to Rothwell, Manny handed it to Rothwell and left the room.

In the letter, Manny, speaking as CEO, asked Rothwell, as an employee of the Brot Company, to communicate candidly and confidentially with Sheila Counts as the company's lawyer, in order to help her represent and defend the company in connection with any future litigation relating to the sinking of the Benoit.

Sheila Counts, alone with Rothwell, said: "In my role as lawyer for the Brot Company, I request that you give me a written statement of everything that happened in connection with the sinking of the Benoit."

Rothwell replied with a question: "Will I be communicating with you in confidence?"

Counts replied, "Yes. The company will have an attorney-client privilege with respect to your communications to me about the sinking of the Benoit. That means that the company has the option of keeping your communications secret or disclosing them."

Rothwell inquired further: "What control do I have?"

Counts replied: "Legally speaking, you have none. The company is my client and the holder of the privilege of keeping your communication with me secret. I advise you that, although you are an employee of the Brot Company, you may also have interests adverse to the company in connection with the sinking of the Benoit. You may have a claim against the company. You may, therefore, not want to tell me what happened. The choice is entirely yours."

"You talk just like a lawyer," said Rothwell. "Thank you for advising me so carefully. I fully understand my position. I am a loyal employee of the Brot Company and will cooperate with you fully. Please turn off the tape recorder while I write out my statement."

Counts turned off the tape recorder at that point. Rothwell wrote out a nine-page statement.

When Rothwell completed his statement he read it over. Before signing it, Counts turned on the tape recorder again and asked two nurses to witness Rothwell signing it. Rothwell signed and dated his statement in their presence. Without reading the statement each nurse signed the statement beneath Rothwell's signature as witnesses to his signature. These actions are reflected on the tape.

Counts took the written statement to her office, where it has remained since.

That evening Rothwell died as the result of a massive stroke. Soon thereafter Brot made a substantial payment to Rothwell's wife (who was also Rothwell's executor and heir) in settlement of all claims.

A year later the next of kin of eight of the Benoit crewmen, other than Rothwell, sued Brot Company. In discovery the plaintiffs requested disclosure of Rothwell's written statement. Counts refused the request, claiming an absolute attorney-client privilege. She also claimed a work-product privilege, asserting in an affidavit that as Rothwell hesitated every once in a while in writing out his statement, she asked him various questions that helped him frame his statement, questions that she says clearly reflected her thoughts about the case. Counts is joined in opposition to disclosing Rothwell's statement by Rothwell's wife, to the extent that she may be considered the holder of any privilege.

Plaintiffs have moved to compel disclosure. They contend that without Rothwell's statement they may have no way to prove what caused the Benoit to sink.

Analyze the issues presented by the motion and recommend a decision.