Tuesday, May 31, 2011

Application For Appointed Counsel Is Privileged

The New Jersey Appellate Division has held that a defendant's application for appointed counsel and the "factual materials submitted in support of that application are protected b y the attorney-client privilege. The privilege may properly be invoked where the materials "may contain information the State could use against [the defendant] in the prosecution of the charges for which he sought representation..."

The defendant was one of 34 persons indicted for racketeering. The court indicated that it might consider enforcing a more narrowly-drawn subpoena. (Mike Frisch)

May 31, 2011 in Privilege | Permalink | Comments (0) | TrackBack (0)

Sunday, May 8, 2011

Ineffective Assistance When Client Wants To Withdraw Plea

The New Jersey Appellate Division has held that a defense attorney provided ineffective assistance of counsel by undercutting the defendant's efforts to withdraw a previously offered guilty plea:

...in the present case the trial judge placed great reliance on his searching inquiry at the time that  the plea was entered, and upon defendant's unequivocal responses. But here, the judge's determination was also undoubtedly colored by defense counsel's statements completely undercutting defendant's claims of innocence and was explicitly colored by defendant's
statement in his letter to counsel regarding his potential willingness to accept a lower plea.

The case was remanded to consider the motion to withdraw the guilty plea with new defense counsel and a new judge. (Mike Frisch)

May 8, 2011 in Clients, Current Affairs, Privilege | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 30, 2011

Privilege And Girl Scouts

The Oklahoma Supreme Court has held that the attorney-client privilege did not prohibit disclosure of otherwise confidential information from counsel to an entity client to an entity created by a merger. The facts:

The defendant/appellant Marilyn Barringer-Thomson (Attorney) is an attorney who represented Girl Scouts-Sooner Council, Inc. (Sooner) on employee severance and other matters related to employees of Sooner. Subsequently, Sooner merged with Girl Scouts-Red Lands Council, Inc. (Red Lands) and the surviving corporation is the plaintiff/appellee, Girl Scouts-Western Oklahoma, Inc. (Western). Western filed a replevin action to obtain all Sooner files and documents, including confidential employee severance agreements, in the possession of Attorney and now owned by Western as a result of the merger. The petition recited that the documents sought contained details of agreements between Sooner and its former employees for which Western is now responsible as Sooner's successor in interest. Attorney objected, claiming attorney-client privilege and attorney work product. Western asserted that the attorney-client privilege transferred to it as a result of the merger. Both sides filed motions for summary judgment and the trial judge granted summary judgment in favor of Western. Attorney appealed and we granted her motion to retain the case.  

The court concluded:

 The attorney-client privilege belongs to the client and not to the lawyer, and it may be waived only by the client...if the client is a corporation, the privilege may be claimed by the successor, trustee, or similar representative.This is in accord with Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343,348-49, 105 S.Ct. 1986, 1991, 85 L.Ed.2d 372 (1985). There, the Supreme Court stated that the power of a solvent corporation to waive the corporate attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors. When control of a corporation passes to new management, the authority to assert and waive the corporation's attorney-client privilege passes as well. New managers installed as a result of a merger, or simply normal succession, may waive the attorney-client privilege with respect to communications made by former officers and directors. The displaced managers may not assert the privilege over the wishes of current management. Weintraub held that the trustee in bankruptcy of an insolvent corporation had the power to waive the corporation's attorney-client privilege for pre-bankruptcy communications.

To the same effect is Tekni-Plex, Inc. v. Meyer and Landis, 674 N.E.2d 663 (NY 1996). Tekni-Plex merged into TP Acquisitions, which became the surviving corporation. The merger agreement conveyed all of the assets, rights and liabilities of Tekni-Plex. The merger agreement contained warranties by Tang, the owner of Tekni-Plex, that Tekni-Plex was in full environmental compliance, and Tang indemnified TP against loss as a result of breach of the warranties. TP Acquisition later renamed itself Tekni-Plex, Inc. (new Tekni-Plex). New Tekni-Plex obtained arbitration against Tang for breach of warranties of environmental compliance. The law firm representing Tang in the arbitration had represented Tekni-Plex and Tang on environmental compliance matters and also represented them in the merger transaction. New Tekni-Plex moved to disqualify law firm and, among other things, sought an order directing law firm to return to new Tekni-Plex all of the files in the law firm's possession concerning its prior legal representation of Tekni-Plex.

The New York Court of Appeals held that where the successor corporation continued the business operations of the pre-merger entity, ownership of the law firm's files regarding its pre-merger representation on environmental issues passed to the successor, as did control of the attorney-client privilege attached thereto. Thus, ownership of the law firm's files regarding its pre-merger representation of Tekni-Plex on environmental compliance matters passed to the management of new Tekni-Plex. The court held that the privilege did not pass on files regarding the merger transactions because the arbitration arose from representations made in the merger agreement.

 The court concluded that it was necessary for new Tekni-Plex to have the right to invoke the pre-merger attorney-client relationship if it should have to prosecute or defend against third-party suits involving the assets, rights or liabilities that it assumed from Tekni-Plex.

We find the reasoning in Weintraub and Tekni-Plex persuasive. Tekni-Plex holds that where the successor corporation carries on the business and assumes managerial responsibilities, ownership of a lawyer's files regarding its pre-merger representation of a corporation passes to the management of the successor corporation. In the present matter, plaintiff's evidentiary materials show that the business of both Sooner and Red Lands is being continued by Western. Western has assumed Sooner's rights and liabilities and may have to prosecute or defend third-party suits involving those rights and liabilities. Attorney did not represent Sooner in the merger transaction and the materials sought from attorney are not materials regarding the merger transaction itself.

 Sooner did not exempt or exclude confidential or any other materials from the merger agreement; it adopted a merger agreement that transferred all assets, properties and privileges to the surviving corporation. Ownership of Sooner's assets, as well as its attorney-client privilege, has now transferred to Western by operation of law as a result of the merger. To allow Attorney to assert Sooner's attorney-client post-merger would be in derogation of the merger agreement transferring ownership to Western.

(Mike Frisch)

March 30, 2011 in Privilege | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 9, 2011

Old Law Still Good Law

A recent opinion from the Legal Ethics Committee of the D.C.Bar is summarized below:

D.C. Legal Ethics Opinion 31 (1977) concluded that it was a violation of the former Code of Professional Responsibility for a congressional staff lawyer to require a witness to appear before a congressional committee when the committee has been informed that the witness will invoke the self-incrimination privilege as to all substantive questions “and the sole effect of the summons will be to pillory the witness.” The committee declines a request to vacate Opinion 31 but notes that under the D.C. Rules of Professional Conduct, as under the former Code of Professional Responsibility, a violation occurs only where the summons serves no substantial purpose “other than to embarrass, delay, or burden” the witness.

A final footnote:

We express no opinion on the propriety of a witness invoking an opinion of this committee as a basis for refusing to comply with a congressional subpoena.

As you might imagine, there is no District of Columbia case imposing discipline for such a violation. Good luck proving that the "sole effect...will be to pillory the witness." (Mike Frisch)

February 9, 2011 in Current Affairs, Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, June 21, 2010

Public Defender Contempt Reversed; Prosecution Lacked Imagination

The Kansas Supreme Court reversed a finding of criminal contempt against a county chief public defender who had refused to testify in response to the prosecutor's subpoena.

 The public defender had represented a defendant in a first degree murder case. A client represented by the public defender's office in an unrelated case was incarcerated with the defendant. That client advised a public defender attorney of an intent to commit perjury at defendant's trial. The public defender advised the court of this (but did not identify the potential perjurer) and was granted leave to withdraw.

The prosecutor then dropped the charges. When charges were refiled, the prosecutor issued a subpoena to the public defender seeking to compel the disclosure of the other client's identity. There were seven public defender clients who were locked up with the defendant.

The court applied the Kansas Rule of Professional Conduct 3.8(e) governing subpoenas to defense counsel and held that the withdrawing public defender's

summary of her former client's expression of an intention to commit perjury...is the only evidence, and merely reed-thin circumstantial evidence, that the former client sought legal services from the public defender's office "in order to enable or aid the commission or planning of a crime or tort."

The summary did not waive the attorney-client privilege. Indeed, the public defender admitted that she had made disclosures in violation of the duty of confidentiality. The court held that the record failed to establish that the prosecution had no feasible alternative to obtain the information sought from defense counsel:

Although [the detective who testified at the contempt hearing] said he believed that there were no other possible avenues of investigation, as oral argument to this court demonstrated, it would have taken little time and less imagination to discern other directions and strategies more likely to lead to helpful information. Unless these directions and strategies were implemented and failed, the State did not demonstrate that there were no feasible alternatives other than to coerce [the public defender's] testimony.  

(Mike Frisch)

June 21, 2010 in Clients, Privilege, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 13, 2010

Advice From National Organization Covered By Privilege

The South Carolina Supreme Court agreed with the state Attorney General's claims of privilege with respect to advice received from the National Association of Attorneys General and reversed an order complelling disclosure. The facts:

In 1998, South Carolina was one of many states to enter into a Master Settlement Agreement (MSA) with certain tobacco companies to settle litigation brought by the states to recover tobacco-related health care expenses.  The MSA contained a Model Escrow Statute that South Carolina adopted and codified as the South Carolina Escrow Fund Act at S.C. Code Ann. § 11-47-10, et. seq. (Supp. 2008).  The Escrow Fund Act provides that a "tobacco product manufacturer" (TPM) that sells cigarettes to consumers within the state must either: (1) join the MSA and make settlement payments required under the MSA, or (2) remain a "non-participating member" and make payments each year to a qualified escrow fund.  Id. § 11-47-10. 

Tobaccoville is an importer and distributor of Seneca brand cigarettes, which are manufactured by Grand River Enterprises Six Nations, Ltd. (Grand River) in Canada.  Tobaccoville asserts that it is the exclusive "off-reservation" importer of the Seneca brand, and that Native Wholesale Supply is the exclusive "on-reservation" importer.  Based on these and other assertions by Tobaccoville, the AG certified Tobaccoville as a TPM for the Seneca brand in November 2003.  Tobaccoville was recertified as a TPM for years 2004 through 2006. 

Since that certification, "on-reservation" Seneca cigarettes manufactured by Grand River and distributed by Native Wholesale Supply improperly were being sold "off-reservation" in South Carolina.  In April 2007, the AG determined Tobaccoville no longer qualified as a TPM, and that Grand River would have to be certified as a TPM instead if Seneca cigarettes would continue to be sold lawfully in South Carolina.  Tobaccoville appealed the AG's determination to the ALC.  In the course of discovery, the AG produced thousands of documents and submitted a privilege log indicating numerous documents were confidential and not subject to production.  Tobaccoville sought to compel production of some of those documents, arguing that the documents were necessary to properly litigate the case. 

The ALC found that the documents at issue were properly discoverable and were not privileged.  The AG moved for reconsideration and was denied.  The AG then appealed to the court of appeals, which dismissed the appeal.  The court of appeals, however, later certified this case to this court pursuant to Rule 204(b), SCACR after the AG's petition for rehearing.

The court held the the documents sought were privileged:

The AG asserts the documents in question were covered by the attorney-client privilege, and thus were confidential communications not subject to discovery.  The ALC found that because neither the National Association of Attorneys General (the NAAG) nor the other state attorneys general were retained as counsel then there could be no attorney-client relationship upon which to premise the privilege.  We disagree.

"The attorney-client privilege protects against disclosure of confidential communications by a client to his attorney."  State v. Owens, 309 S.C. 402, 407, 424 S.E.2d 473, 476 (1992).  "This privilege is based upon a wise policy that considers that the interests of society are best promoted by inviting the utmost confidence on the part of the client in disclosing his secrets to this professional advisor . . . ."  Id.  In State v. Doster, this Court explained the attorney-client privilege as follows:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

276 S.C. 647, 651, 284 S.E.2d 218, 219-20 (1981) (citation omitted).

While the relationship the AG has with the NAAG is not the traditional attorney-client relationship envisioned in Doster, we nonetheless find that these communications may be covered by the attorney-client privilege.  As the ALC noted, the AG has not "retained" the NAAG attorneys in this matter or with respect to the disputed documents.  However, the AG is a paid member of the NAAG, and NAAG staff attorneys are available to provide legal advice relating to the MSA and tobacco regulation and enforcement.  We find it instructive that one court has previously held that similar documents between a state attorney general and the NAAG were protected by the attorney-client privilege.  See Grand River Enterprise Six Nations, Ltd. v. Pryor, No. 02 Civ. 5069(JFK)(DFE), 2008 WL 1826490, at *3 (Apr. 18, 2008 S.D.N.Y.). 

Thus we hold that the attorney-client privilege may apply to this very narrow factual scenario because the AG, as a paid member, has solicited the NAAG attorneys for legal advice and consultation on matters relating to the tobacco litigation, the MSA, subsequent enforcement of the MSA, and tobacco regulation.  We remand the matter to the ALC to determine if the allegedly privileged documents are confidential communications pertaining to the above legal matters.

(Mike Frisch)

April 13, 2010 in Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, April 12, 2010

Consultant Documents Are Privileged

The New York Appellate Division for the First Judicial Department held that a trial court had properly found that documents prepared by a consultant who had been working with counsel since the inception of litigation were protected by privilege:

Defendants responded to plaintiffs' discovery demands by providing a supplemental privilege log identifying each of the documents withheld on the grounds they were privileged as work performed by its counsel's consultant from the inception of and during the course of a prior action in Arizona arising out of the same facts. The motion court conducted an in camera review of the withheld documents and concluded that they were protected by the attorney-client privilege.

There is no basis to disturb the motion court's ruling that the documents are subject to the attorney-client privilege. The privilege extends to communications of "one serving as an agent of either attorney or client", and here, the documents were generated by defense counsel's consultant retained to assist in handling forensic accounting in relation to the Arizona matter. Furthermore, the documents are subject to the attorney work product privilege. Such privilege extends to experts retained as consultants to assist in analyzing or preparing the case, "as adjunct to the lawyer's strategic thought processes, thus qualifying for complete exemption from disclosure" (citations omitted)

We have considered plaintiffs' remaining contentions, including that defendants waived the ability to assert that the documents were privileged, and find them unavailing.

April 12, 2010 in Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

Scrambled Eggs And Malpractice

The Maryland Court of Special Appeals recently held that a trial court order that denied a motion to quash a subpoena on grounds of attorney-client privilege was not subject to an immediate appeal. One law firm had represented a divorcing wife and had secured the divorce. One aspect of the divorce obligated the husband to continue to designate the ex-wife client as a beneficiary of an insurance policy. He did not. A second lawyer assumed responsibility for the insurance issue, which resulted in a settlement.

The first law firm sued the client for unpaid legal fees. The former client countersued for legal malpractice based on the contention that the first firm had failed to notify the insurer of the provision that obligated the ex-husband to continue her as the beneficiary. The first firm claimed that the loss was attributable to the improvident decision to settle by the client and the second attorney.

The law firm sought to depose the second lawyer. The motion to quash asserted attorney-client privilege. The trial court denied the motion to quash on grounds of waiver of the privilege.

The court here concluded that the trial court order could not be appealed at this juncture. The trial judge's ruling did not conclusively resolve any issue and can be reviewed if any appeal is taken. Further, the advice given to the client by the second attorney is central to the disputed issues in the litigation. As the court observes: "The eggs cannot be unscrambled." (Mike Frisch)

March 2, 2010 in Clients, Law Firms, Privilege | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 27, 2010

Defense Attorney Wears a Wire and Meets with Clients. Fed Prosecutor Apparently Wired Him.

Posted by Alan Childress

Wow.  I missed this harrowing story a few weeks ago, out of Nebraska, but -- thanks to my ethics student Jeff Malfatti -- here it is (in a newsy and interesting article by Todd Cooper of the Omaha World-Herald). It is called Lawyer goes into hiding and is well worth a look.  A peek at it:

In measured words, the Omaha attorney confides that he is in hiding after he wore a wire to help the U.S. government indict inmate Shannon E. Williams and 10 others in a massive marijuana conspiracy.

I realize I could lose my law license over this, his friends have recalled him saying in recent weeks. But, please, don't jump to conclusions. Williams talked about committing crimes, about eliminating witnesses. I had to do something.

And that's it. Just as quickly as he tantalizes former colleagues, he shuts down — saying federal prosecutors have asked him not to talk about why he chose to risk his legal career, even his life, by taking on the marijuana ring and its alleged kingpin.

In a case that will hinge in large part on Haddock's credibility, here's what Haddock doesn't always divulge: His involvement in the federal investigation came after a yearlong stretch in which his personal and professional lives began to circle the drain.

A pretty strong reply by defense attorney Bobby Frederick in his blog -- "this scenario reeks."  And he asks the $64M question:  "The lawyer who participates in this ... probably is facing legal troubles of his own and could care less if he is disbarred for what he has done. But what about the prosecutor who set it up or who uses the evidence after the police have set it up?"

The lawyer's firm lists him as a banking and bankruptcy lawyer.

January 27, 2010 in Ethics, Privilege | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 13, 2010

ALI-ABA Offers Legal Ethics CLE via Web or Phone on Jan. 20, 2010

It's next Wednesday (January 20) at 1:00-2:00 eastern, and presented by two leading writers on law practice and ethics, Daniel Capra and Gregory Joseph.  The subject is attorney-client and work-product privilege and new Rule 502 of the Federal Rules of Evidence.  Link here.  [Alan Childress]

January 13, 2010 in Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, December 28, 2009

No Details Required

An attorney appointed to represent a client in a post-conviction proceeding may withdraw from the matter based on her assertion that continued representation would involve violation of disciplinary rules without filing an Anders-type pleading that details the problem, according to a 3-2 majority opinion of the Vermont Supreme Court. The motion to withdraw had cited rules relating to frivolous claims ans candor to the court. The court holds:

An Anders-type explanation justifying counsel’s withdrawal is not required in the PCR context.  The withdrawal prerequisites called for in Anders are designed to vindicate a defendant’s constitutional right to counsel, 386 U.S. at 744, and, as the United States Supreme Court has recognized, a petitioner has no constitutional right to counsel in civil PCR proceedings.  See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (rejecting notion that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions).  Absent an underlying constitutional right to counsel in state post-conviction proceedings, there is “no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.”  Id. (“Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.”); see also People v. Breaman, 939 P.2d 1348, 1351 n.2 (Colo. 1997) (en banc) (citing FinleyAnders brief). 

Rather than being grounded in the constitution, petitioner’s right to counsel is created, defined, and limited by statute.  See In re Gould, 2004 VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632 (noting that Public Defender Act sets forth statutory right to counsel in PCR proceedings even though providing such assistance is not constitutionally compelled).  Before 2004, the PDA guaranteed an indigent litigant the right to representation in any post-conviction proceeding “that . . . the needy person considers appropriate.”  13 V.S.A. § 5233(a)(3) (1998) (enacted 1971, No. 161 (Adj. Sess.), § 6).  In light of this language, we held that the state was obligated to provide PCR counsel upon the litigant’s request, regardless of the merit of the claims raised in the PCR or the fact that representation was not constitutionally compelled.  Gould, 2004 VT 46, ¶ 13.

There are two dissents. From Associate Justice Johnson:

To provide petitioner with competent and effective assistance of counsel and to preserve this Court’s role as protector of his right to counsel, this Court should deny counsel’s motion to withdraw and require her to file a brief on petitioner’s behalf.  Neither the majority’s solution of rubber-stamping the attorney’s conclusion that the case lacks merit, nor Justice Dooley’s suggestion to require an Anders-type affidavit from counsel adequately resolves the conflict between indigent petitioner’s need for effective and zealous representation and counsel’s own professional obligation to refrain from bringing frivolous cases.  While I concur with the majority’s conclusion that an Anders-like procedure is not constitutionally required or particularly effective in protecting an indigent litigant’s rights, I cannot agree with the majority’s holding that assigned counsel may withdraw at any point in the course of representation based solely on counsel’s own, unreviewable conclusion that the case is not warranted by existing law or nonfrivolous argument.  The grave consequences of a post-conviction proceeding and the critical requirement of robust representation at this proceeding require more.  To solve this problem, I would instead require counsel, once appointed, to remain in the case and to advance her client’s claims notwithstanding that she deems them to be without merit.  Because I would deny counsel’s motion to withdraw, I dissent.

(Mike Frisch)


December 28, 2009 in Clients, Privilege | Permalink | Comments (0) | TrackBack (0)

Friday, November 20, 2009

Balance Of Interests Favors Access To Documents

The Iowa Supreme Court has affirmed a district court decision to grant a motion to intervene and access to discovery in a case in which Canadian plaintiffs sought documents and data produced by Microsoft in the state court litigation. The court engaged in an extensive discussion of the balancing of interests and concludes:

Microsoft's important interest in confidentiality of the documents and data  is preserved because the Canadian plaintiffs are bound by the terms of the [trial court's] protective order.

(Mike Frisch)

November 20, 2009 in Privilege | Permalink | Comments (0) | TrackBack (0)

Thursday, November 12, 2009

Privilege Upheld

A worker injured in a fall from a scissor lift retained a law firm to sue K-Mart, where the incident had taken place. The claims were lost in K-Mart's bankruptcy,allegedly due to the failure of the law firm to properly preserve them. The injured worker then retained new counsel and proceeded against the lessor of the scissor lift on theories of product liability and negligence. The case was settled on the eve of trial for $235.000. A lawsuit alleging malpractice by the first firm was then filed.

At the deposition of the client, questions were asked about communications between the client and the second firm concerning the settlement of the claims against the lessor. The defendant law firm appealed the trial court's determination that the communications were protected by the attorney-client privilege.

The trial court's holding was affirmed by the New York Appellate Division for the Third Judicial Department. Citing a similar prior case that had upheld the privilege claim, the court concluded:

We are unpersuaded that the presence of a settlement less than the full amount of insurance, or any of the other circumstances asserted by defendants, compels a contrary conclusion in this case.

(Mike Frisch)

November 12, 2009 in Clients, Privilege | Permalink | Comments (0) | TrackBack (0)

Friday, October 30, 2009

Not Privileged But Work Product In Part

The Iowa Supreme Court considered the application of attorney-client privilege and work product doctrine to an interview conducted by defense counsel in a medical malpractice action. Counsel represented a defendant doctor and his entity employer. The defendant doctor had referred the plaintiff to another doctor (not a defendant) in the same group, who in turn referred the plaintiff to a third doctor. Defense counsel violated an Iowa statute by conducting an interview of the second doctor without notice to plaintiff's counsel, who had a statutory right to sit in on the interview of his client's treating physician. Defense counsel made a memo of the interview. When plaintiff's counsel learned of the interview and memo, a motion to compel production was filed.

Here, the court held that the attorney-client privilege did not apply notwithstanding counsel's claim to have also represented the second doctor. Such representation might run afoul of conflicts rules. However, the work product would protect from disclosure defense counsel's mental impressions but not the views of the second doctor as a treating physician and witness. The court remanded to the trial court to order disclosure of the potions of the memo that are not work product. (Mike Frisch)

October 30, 2009 in Bar Discipline & Process, Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 6, 2009

Joint Defense Agreement Does Create Attorney-Client Relationship

A recent ethics opinion from the Legal Ethics Committee of the District of Columbia Bar:

Joint defense agreements do not create “former client” conflicts under Rule 1.9 because members of a joint defense group do not become the lawyer’s “clients” by virtue of such agreements. However, a lawyer who participates in a joint defense agreement may acquire contractual and fiduciary obligations to the members of the joint defense group who were not the lawyer’s clients. Such obligations can give rise to a personally disqualifying conflict under Rule 1.7(b)(4) to the extent that they materially limit the lawyer’s ability to prosecute or defend a substantially related matter adverse to a joint defense group member.

Under Rule 1.10(a)(1), such conflicts are not automatically imputed to other lawyers in the lawyer’s firm. If the lawyer has moved to a new firm since handling the joint defense group matter, other lawyers at the new firm could undertake a substantially related matter adverse to a joint defense group member, provided that the personally disqualified lawyer is timely screened from the new representation. The analysis is more difficult if the lawyer has remained at the same firm. If that firm wishes to undertake a related matter adverse to a member of the joint defense group, the firm must consider: (i) whether the entire firm is bound by a joint defense agreement that one of its lawyers signed while affiliated with the firm; and (ii) if not, whether the lawyers who would be handling the new matter might have been exposed to confidential information from the joint defense group matter while that matter was being handled by others in the same firm.

(Mike Frisch)

October 6, 2009 in Privilege | Permalink | Comments (0) | TrackBack (0)

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)

July 17, 2009 in Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 26, 2009

"In Issue" Privilege Waiver

The New York Appellate Division for the First Judicial Department affirmed the denial of a motion by a law firm defendant in a legal malpractice case for access to materials protected by the plaintiff's attorney-client privilege: 

This legal malpractice action arises from defendant's allegedly negligent advice in regard to [plaintiff] Nomura's formation of the so-called D5 Trust, a securitized pool of 156 mortgage loans totaling $1.8 billion which closed in October 1997. The transaction was to be compliant with the Internal Revenue Code's Real Estate Mortgage Investment Conduit (REMIC) regulations. In November 2000, after several of the loans experienced difficulty, the trustee of the D5 Trust sued Nomura in federal court (the Doctor's Hospital Action), alleging that, contrary to defendant's advice and opinion rendered to Nomura, one of the mortgage loans to Doctor's Hospital of Hyde Park, Illinois did not comply with the REMIC regulations. Specifically, the trustee alleged breach of Nomura's warranties that such mortgage loan was REMIC qualified and that the borrower's real property had a fair market value of at least 80% of the principal amount of the mortgage loan.

Defending the position that the Doctor's Hospital loan was a qualified mortgage for REMIC purposes, Nomura successfully moved for summary judgment (LaSalle Bank N.A. v Nomura Asset Capital Corp., 2004 US Dist LEXIS 18599 [SDNY 2004]). However, on appeal, the Second Circuit reversed in part and remanded the matter to determine whether the loan was, in fact, 80% secured (424 F3d 195 [2005]). As a result, Nomura alleges that, because of defendant's erroneous advice that such mortgage loan was REMIC qualified, it was "left with no viable alternative but to settle the Doctor's Hospital Action for approximately $67.5 million prior to trial" and seeks to recover the amount of the settlement.

We find no merit to defendant's argument that privileged materials relating to and created after commencement of the Doctor's Hospital Action have been put "in issue" by this litigation and are therefore discoverable. Such argument fails to recognize that nothing that plaintiff's attorneys could have said or done in the prior lawsuit could have possibly affected plaintiff's reliance on defendant's allegedly erroneous advice given years earlier in connection with the formation of the D5 Trust. " At issue' waiver of [the attorney-client] privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63 [2007]). While any communications between plaintiff and its attorneys in the Doctor's Hospital Action that evaluated defendant's prior advice in the allegedly bungled D5 Trust transaction are certainly relevant to the issue of defendant's alleged malpractice, plaintiff disavows any intention to use such communications and defendant fails to show that any such communications are necessary to either plaintiff's claim or its defense (see id. at 64 [relevance alone insufficient to put privileged materials "at issue"; "if that were the case, a privilege would have little effect"]; see also Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 374 [2008]). Nor does the question of the reasonableness of the settlement amount that plaintiff seeks to recover, without more, put plaintiff's privileged communications with its attorneys concerning the settlement "in issue" (Deutsche Bank, 43 AD3d at 57). No reason appears why the reasonableness of the settlement cannot be determined with the copious materials that defendant has already received, including otherwise privileged communications, dating from before the commencement of the Doctor's Hospital Action. We have considered defendant's other arguments and find them unpersuasive.

(Mike Frisch)

May 26, 2009 in Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 21, 2009

Ohio Supreme Court Sustains Claim Of Privilege

The web page of the Ohio Supreme Court reports a ruling from the court:

The Supreme Court of Ohio ruled today that an investigatory report prepared by a private law firm on behalf of a public agency is covered by attorney-client privilege and is not subject to mandatory disclosure under the state’s Public Records Act.

The Court’s 7-0 per curiam decision denied a writ of mandamus that was sought by the Toledo Blade newspaper to force disclosure of an investigative report prepared by the Spengler Nathanson law firm on behalf the Toledo-Lucas County Port Authority. The port authority’s board of directors retained the law firm to review and analyze records in order to identify potential legal repercussions of an alleged improper personal relationship between the president of the port authority, James Hartung, and Kathy Teigland, a contract lobbyist paid by the port authority and a consortium of other northwest Ohio governmental entities.

In July 2008, the mayor of Toledo, a consortium member, informed the port authority that Hartung had been engaged in an extramarital affair with Teigland and that Hartung may have improperly funneled money to the lobbyist and used his influence to her advantage. The port authority contracted with attorney Teresa Grigsby of the Spengler Nathanson firm to investigate the factual and legal issues concerning the mayor’s allegations. The port authority considered it essential that Grigsby, its long-time outside legal counsel, conduct the investigation to identify the pertinent factual and legal issues.

Spengler Nathanson, through attorney Grigsby and other attorneys, reviewed and analyzed port authority records and prepared an investigative report. The attorneys distributed numbered copies of the investigative report in sealed envelopes to the members of the port authority’s board of directors during an executive session of a regularly scheduled meeting. The board members were informed that the report was confidential and could not be shown or disclosed to any third party. Following a subsequent special session, copies of the report were returned to the law firm. On Aug. 1, 2008, after the special meeting, the board voted unanimously to terminate Hartung’s employment with the port authority immediately and for cause. The port authority publicly announced that Hartung had been terminated because he had pursued an inappropriate relationship with a vendor to the consortium in violation of the port authority’s policies. 

On the day Hartung’s termination was announced, the Blade filed a public records request with the port authority seeking disclosure of the Spengler Nathanson report and all documents that were reviewed in connection with it. The port authority denied the request, asserting that the requested items were exempt from disclosure under an exception in the public records act for documents covered by attorney client privilege.  The Blade filed a second request.  The port authority ultimately made available to the Blade all of the responsive documents Spengler Nathanson had reviewed in preparing its report, but refused to provide the newspaper with a copy of the report itself.

The Blade filed an original action in the Supreme Court seeking a writ of mandamus to compel disclosure of the law firm’s report and all supporting documentation. The Blade’s complaint also sought statutory damages for unlawful refusal to disclose a public record and an award of its attorney fees.

In today’s decision, the Court denied the requested writ based on its findings that the investigative report was covered by attorney-client privilege, and that the Blade’s request for other documents was moot because the port authority had already provided copies of  all of the records the law firm had reviewed in preparing its report.

In rejecting the Blade’s argument that attorney-client privilege bars disclosure only of documents in which an attorney provides “legal advice” to a client, the Court cited language from several federal and state court decisions endorsing a much broader definition of the privilege.

“(M)ost courts that have expressly addressed the issue of whether an attorney’s factual investigations are covered by the attorney-client privilege have determined that such investigations may be privileged.  See, e.g., In re Allen (1997) ... and cases cited therein. For example, in Upjohn (Co. v. United States) (1991) the United States Supreme Court recognized that the ‘first step in the resolution of any legal problem is ascertaining the factual background and sifting through facts with an eye to the legally relevant.’  ‘[T]he Upjohn pronouncement hardly stands alone. Courts have consistently recognized that investigation may be an important part of an attorney’s legal services to a client.’ ... Notwithstanding the Blade’s argument to the contrary, ‘the privilege is not narrowly confined to the repetition of confidences that were supplied to the lawyer by the client. That cramped view of the attorney-client privilege is at odds with the underlying policy of encouraging open communication; it poses inordinate practical difficulties in making surgical separations so as not to risk revealing client confidences; and it denies that an attorney can have any role in fact-gathering incident to the rendition of legal advice and services.’”

In this case, the Court held, “(I)t is manifest that the factual investigation conducted by attorney Grigsby was incident to or related to any legal advice that the attorneys hired by the port authority would give concerning the mayor’s allegations of misconduct by the port authority president. More specifically, the attorney’s investigation required her to draw upon her legal training and experience as well as her knowledge of the law governing the port authority and its policies and personnel. ... Legal issues included interpretation of Hartung’s employment contract, an analysis of ethics law and criminal law, potential tort claims by Hartung and Teigland, and the construction of a confidentiality provision in the settlement agreement concerning a previous port authority investigation. Legal analysis related to the facts in the investigation is integrated throughout the report.”

“(B)ased on the persuasive weight of authority,” the Court concluded, “we hold that the port authority has established that the investigative report was related to attorney Grigsby’s rendition of legal services and is thus excepted from disclosure under the Public Records Act as material covered by the attorney-client privilege.” Because the Blade’s petition for mandamus was denied, the Court also overruled its claims for statutory damages and attorney fees.

The decision is linked here. (Mike Frisch)

April 21, 2009 in Privilege | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2009

Privilege Waived

An employee of a paper mill sought workers compensation benefits from his employer and claimed that he was unaware of the basis of the claim until he had consulted with a lawyer. This late-blooming realization was asserted as a reason to permit the otherwise untimely filing of the claim. The trial court sustained an objection to any inquiry into the claimed conversations by the employer's lawyer on the grounds of attorney-client privilege. The trial court concluded that the employee had operated under a mistake of fact as to the cause of a second back injury until the lawyer, who was consulted concerning Social Security benefits, saw the issue. 

The Maine Supreme Judicial Court reversed and remanded, concluding that reliance on the conversation with counsel as a way to avoid the limitations problem constituted a waiver of any privilege: " [The employee] asserted the attorney-client privilege, not to keep the communication with his attorney confidential-he had already published the communication- but to prevent inquiry into the credibility of his 'mistake of fact' claim that rested on his attorney-client communication."  (Mike Frisch)

April 9, 2009 in Privilege | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 25, 2009

Work Product

When an employee of the YMCA was accused of improper touching of minors, the Y's general counsel recommended that its Board hire an outside entity to make proposals regarding policies and procedures in light of the allegations. The board followed counsel's advice and the report was prepard in anticipation of litigation.

After suit was filed, the plaintiffs sought access to the report. In a decision reversing the lower court's order to disclose the report, the Rhode Island Supreme Court held that the work product doctrine shielded the report from diusclosure. (Mike Frisch)

March 25, 2009 in Privilege | Permalink | Comments (0) | TrackBack (0)