Friday, July 17, 2009

If You Call The Bar for Advice, Wait For The Answer

The Maine Supreme Judicial Court dismissed an interlocutory appeal in an action brought by a corporation against its former president but commented on a claim of attorney-client privilege in its order. The former president had been convicted of violating federal export control laws and sought reimbursement from the corporation for the fine in the criminal case. He had sought advice from his daughter, a Maine lawyer, and was referred to a law firm.

The firm produced a memorandum stamped as privileged that set forth the pros and cons of his indemnification claim, which was emailed to the president (who was still in office) at his corporate email address. The corporation did not prohibit use of the office laptop for personal purposes but had a written policy waiving any right to privacy in the contents. Federal agents arrived at his home and took a mirror image of the hard drive of his corporate laptop. He resigned two days later. in-house counsel was able to secure the return of the laptop.

The corporation's in-house counsel and the chairman caused the hard drive to be examined. The privileged memo was located and reviewed. In-house counsel considered the document to be privileged and sought help with respect to her ethical obligations. She called the ABA, consulted bar rules and spoke to an Assistant Bar Counsel. She turned the laptop containing the memo to the chairman and another attorney before obtaining an opinion of Maine Bar Counsel.

The court here concluded that the in-house lawyer should have waited for advice from Bar Counsel ("one of the best sources for ethical advice for Maine attorneys") before delivering the memo to others. The court also expresses concern about the corporation's present lawyers "dismissive attitude and preemptive approach to [the former president's] claim of privilege." The lawyers should have sought to resolve the privilege before making the memo a matter of public record. The dismissal of the appeal "should [not] be interpreted as suggesting that the Court endorses or otherwise condones the approach taken by [the corporation's] attorneys to the assertion of privilege in these proceedings." (Mike Frisch)

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