Legal Profession Blog

One Brain And the Circle Of Confidentiality

The Delaware Court of Chancery rejected an assertion of attorney-client privilege

While Ira Weiss was serving as a director of FairXchange, Inc. (“FairX” or the “Company”), Coinbase Global, Inc. made an acquisition proposal. Weiss wanted to retain an investment banker and explore alternatives. The other two members of the Company’s board of directors (the “Board”) wanted to pursue a transaction with Coinbase. They began excluding Weiss from the deal process, and they later arranged for a group of preferred stockholders to remove him from the Board.

Weiss was a partner in a venture capital firm. Two investment funds sponsored by the firm had made significant investments in the Company. While serving as a director, Weiss also managed the funds. He could not avoid sharing information about the Company with the funds, because Weiss (like all humans) has only one brain. Humans cannot partition their brains so that they only use particular knowledge for particular purposes. Weiss drew on a unitary store of knowledge when carrying out his dual roles as corporate director and fund manager.

After the Coinbase transaction closed, the funds filed this appraisal proceeding. During discovery, the Company asserted the attorney-client privilege to withhold information created during Weiss’s tenure as a director. The funds have moved to compel production of the information.

Holding

Since 1987, Delaware law has treated the corporation and the members of its board of directors as joint clients for purposes of privileged material created during a director’s tenure. Joint clients have no expectation of confidentiality as to each other, and one joint client cannot assert privilege against another for purposes of communications made during the period of joint representation. Under this longstanding precedent, a Delaware corporation cannot invoke privilege against the director to withhold information generated during the director’s tenure. All of the joint clients were within the circle of confidentiality when the privileged communications were made, so there is no privilege to invoke.

Since 1992, Delaware law has recognized that when a director represents an investor, there is an implicit expectation that the director can share information with the investor. Many investors appoint director representatives to monitor corporate performance—think of controlling stockholders, venture capital firms, and private equity firms—and information sharing is part of that process. Information sharing necessarily happens when a director representative serves dual roles because, to reiterate, a human has only one brain. Of course, director representatives use and share information at their own risk, and they can be liable for breach of fiduciary duty if they use the information or permit it to be used for an improper purpose. The bottom line for the attorney-client privilege is that under the joint client approach, the investor presumptively joins the director within the circle of confidentiality, and the corporation cannot invoke the privilege against the investor for materials created during the director’s tenure.

Three recognized methods exist by which a corporation can alter these default rules. First, as frequently happens, the parties can address the matter by contract, such as through a confidentiality agreement. Second, the board of directors can form a committee that excludes the director, at which point the committee can retain and consult confidentially with counsel. Third, once a sufficient adversity of interests has arisen and becomes known to the director, the director cannot reasonably rely on corporate counsel as to the matters where the interests of the director and corporation are adverse. At that point, the corporation can assert the attorney-client privilege as to the director. If a corporation believes that a sufficient adversity of interests exists, the corporation can put the director on notice of that fact, enabling the director to retain his own counsel and, if he wishes, call the question of information access through litigation.

In this case, the Company did not take any of the steps necessary to preserve the privilege. Weiss and the funds were inside the circle of confidentiality during his tenure as a director. Without the expectation of confidentiality on which the attorney-client privilege depends, the Company has no basis for asserting the privilege against the funds in this action. Their motion to compel is granted.

(Mike Frisch)

Client Identity Gamble

A recent decision of the New Jersey Appellate Division is summarized below

Defendants – an attorney and law firm – have a client that produced a report, which asserts plaintiffs unlawfully conducted gambling-related business in forbidden countries. At the client's behest, the defendant attorneys forwarded the report to the New Jersey Division of Gaming Enforcement. When the media learned of the report, plaintiffs sued the defendant attorneys, as well as their anonymous client and other fictitious persons, alleging defamation and other torts. Plaintiffs successfully obtained an order compelling the defendant attorneys to provide their client's identity. The court granted the defendant attorneys' motion for leave to appeal.

Although RPC 1.6 generally imposes on attorneys the ethical obligation to refrain from disclosing a client's identity without the client's consent, the court held that this interest in preserving confidentiality cannot be used to thwart justice and, in appropriate circumstances, a client's right to anonymity may be overcome in favor of an injured party's right to seek redress in our courts. To resolve the conflict between these interests, there must be a deeper examination of the claim's merits than occurred here. The court, therefore, vacated the disclosure order and remanded for the judge's inquiry into the veracity of the report that lies at the heart of plaintiffs' civil action, leaving to the judge's discretion the methodology to be employed.

From the opinion

Because the precise nature of the information sought is not readily apparent, we decline the invitation to decide whether or how the informant's privilege or the work-product doctrine may apply to the discovery requests in question. Instead, we focus on the battle here that pits an attorney's obligation to avoid revealing a client's identity against a litigant's right to the discovery of information necessary for its pursuit of a civil cause of action. In achieving an appropriate balance between these important societal interests – and the ultimate judicial interest in the pursuit of the truth of the parties' assertions – we conclude that the revelation of the client's identity, if at all discoverable, must await a better understanding of the weight of plaintiffs' causes of action, which seem to greatly, if not exclusively, turn on the Report's veracity.

The court declined to adopt the "absolutist" positions of either side

In short, we are satisfied that somewhere between the parties' polar opposite positions lies a middle ground where the client's desire for anonymity does not entirely eviscerate another's valid cause of action or, stated the other way, where a civil claim may not be of sufficient weight to overcome the strict policy interests underlying RPC 1.6's general rule of nondisclosure. Although Advisory Opinion No. 544 dealt with quite a different circumstance than presented here, the Court's decision makes clear that there may be instances when some degree of disclosure may be warranted.

Remand required

we leave to the trial judge's discretion the best way to proceed. What is required need not be elaborate. The judge may or may not decide that an evidentiary hearing would be helpful. It may be that some abbreviated discovery – perhaps allowing plaintiffs to depose the defendant attorneys and explore what it is they did and what they considered in finding the Report credible – may go a long way in providing the judge with greater clarity about the Report's veracity, which seems to be the key to the success or failure of plaintiffs' suit. Or, it may be – considering the DGE and its Pennsylvania counterpart have had the Report for over a year – that their investigations have yielded, or may soon yield, sufficient enlightenment about the Report's veracity. Perhaps, some other approach – standing alone or in combination with those we have suggested – may provide an expeditious path toward fulfilling our mandate. The judge should also consider whether or to what extent information should be received and reviewed in camera as the means for best protecting the client's anonymity until a ruling on disclosure may be made.

(Mike Frisch)

It's My (Third) Party

The New York Appellate Division for the First Judicial Department affirmed denial of access to notes taken by a third party sought in a divorce proceeding

Following its in camera review, Supreme Court providently exercised its broad discretion in finding that notes of a meeting between defendant Mark Harounian and his divorce counsel were privileged even though they were created in the known presence of a third party — namely, nonparty Lennie Estipular, Harounian's long-term employee and personal assistant (see Horizon Asset Mgt., Inc. v Duffy, 82 AD3d 442, 443 [1st Dept 2011]). An agency agreement, prepared by Harounian's divorce counsel, designated Estipular as Harounian's agent in connection with the divorce proceeding, specifically stating that Estipular's activities were undertaken at counsel's direction and were intended to maintain and preserve privilege.

Contrary to plaintiff's assertion that Estipular could not have been Harounian's agent at the meeting between him and his counsel because she was not necessary to the transmission of legal advice, Estipular was, in fact, facilitating attorney-client communications by recording notes of the meeting, because her doing so allowed Harounian to listen rather than write. Therefore, the agency exception applies, and the privilege was not waived by Estipular's presence (see Ambac Assurance Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 624 [2016]; Robert V. Straus Prods. v Pollard, 289 AD2d 130, 131 [1st Dept 2001]).

(Mike Frisch)

Witness For The Prosecution

The District of Columbia Court of Appeals has reversed a criminal conviction where an attorney testified against his former client.

Notably (and this opinion is notable in many respects) the court holds that the attorney-client privilege is applied "more expansively" for  the benefit of clients  represented by court-appointed counsel in criminal matters.

Whether you agree with the majority or not, the opinion in my view is an impressive blending of first-rate scholarship with an understanding of the real world experience of representing indigent clients.

The opinion is authored by Associate Judge Easterly joined by Associate Judge Beckwith

Attorney John Harvey was appointed by the trial court to represent Brian Moore in a contempt proceeding after Mr. Moore allegedly violating an order prohibiting him from contacting his then-wife. But Mr. Harvey subsequently became a witness against Mr. Moore: Mr. Harvey was called by the United States government in a separate criminal case to testify about two private in-the-hallway-outside-the-courtroom mid-trial conversations during which Mr. Moore made hostile remarks about the District of Columbia Assistant Attorney General (AAG) who had been assigned to prosecute his contempt case. Based on Mr. Harvey’s inculpatory testimony, Mr. Moore was sentenced to an aggregate of eight years in federal prison for threatening a public official and obstructing justice (two counts each).

Not so fast

Although we reject Mr. Moore’s sufficiency claims, we hold, based on the record in this case, that the trial court erred in ruling that Mr. Harvey’s conversations with Mr. Moore were not privileged and thus his testimony about these conversations was admissible against Mr. Moore at trial. Further, because we conclude this erroneous evidentiary ruling was not harmless, we vacate Mr. Moore’s convictions.

In the contempt case

Prior to the first incident on April 12, 2018, the AAG asked the court to reverse its order discontinuing GPS monitoring of Mr. Moore via an ankle bracelet. Harvey and Mr. Moore met in the hallway outside the courtroom to discuss this development, or more particularly, Mr. Moore’s feelings about this development. Mr. Moore was “very agitated” and began by saying things like “[f]uck that bitch. I hate this bitch,” referring to the AAG. Responding to Mr. Moore, Mr. Harvey explained that the AAG was doing her job as a prosecutor, and it was “just silly on his part to be angry.” This only further angered Mr. Moore, who not only repeated “fuck that bitch” but also added “I’ll shoot that bitch.” When Mr. Harvey said, “Man, what are you talking about?” Mr. Moore replied, “That’s right, Harvey. I’ll shoot that bitch.” Mr. Harvey told Mr. Moore he was “starting to . . . think [Mr. Moore was] serious,” prompting Mr. Moore to say, “God damn right, Harvey. Fuck that bitch. I’ll shoot that bitch.” Mr. Harvey then told Mr. Moore he would have to withdraw from representing him and left to call Bar Counsel.

Advice

Mr. Harvey testified that Bar Counsel advised him that the decision whether to disclose such statements under this rule was left to his discretion.

Harvey attempted a non-noisy withdrawal that was denied

The trial court refused to allow him to withdraw based on the information he provided. In the meantime, Mr. Moore informed Mr. Harvey that he had just been “bullshitting” and reassured him, “I didn’t mean it. I didn’t mean it.”

He warned the client about future threats.

Nonetheless the following colloquy took place after the prosecutor sought to modify the client's release terms

Mr. Moore: [I]f I lose my job, I’m going to bust a cap in this bitch, I’m going to bust a cap in this bitch.

Mr. Harvey: Man, what are you doing?
Mr. Moore: Man, fuck this bitch. If I lose my job, I’m going to bust a cap in this bitch [making a hand gesture simulating a gun].
Mr. Harvey: I told you what I was going to do if you ever said something like that to me again.
Mr. Moore: Fuck her. Fuck you.

Mr. Harvey testified he had “no idea what this man was going to do.” Without further discussion, Mr. Harvey went back into the courtroom and renewed his motion to withdraw. He also told the court that he would reveal Mr. Moore’s statements to him if the court ordered him to, which the court did. After hearing Mr. Harvey’s account of Mr. Moore’s comments, the court immediately ordered Mr. Moore to be detained and subsequently granted Mr. Harvey’s withdrawal motion

The court concludes that the statements were protected by the attorney-client privilege.

the import of the attorney-client privilege is arguably at its apex when a criminal defendant is appointed counsel. A criminal defendant who has not hired their lawyer and is not paying their bills may not have the same confidence as a paying client that the lawyer is serving their interests and not those of the government.

Response to dissent

More fundamentally, the dissent shifts focus from the foundational rationale of the attorney-client privilege—fostering trust between attorney and client—to the need to preserve individual “autonomy” and “dignity.” Post at 67-69. Specifically, the dissent argues that we strip criminal defendants of their autonomy and dignity by failing to hold them accountable for statements that could be construed as threats spoken to their lawyer. We disagree. In recognizing that criminal defendants have a need in our adversarial criminal justice system to be able to trust court-appointed counsel and communicate about the whole of their criminal case, including feelings of fear and anger, we acknowledge their humanity—an essential component of according any individual true dignity.

Reversal was necessary in these circumstances.

Senior Judge Thompson dissented on the application of privilege to the statements

No one disputes that the threats were tangentially related to Mr. Moore’s legal matter (in that Mr. Moore presumably would not have threatened the prosecutor had she not been prosecuting him), but neither Mr. Moore nor my colleagues in the majority have identified any plausible way in which the threats were related to the purpose for which Mr. Moore sought legal advice or for the purpose of facilitating the rendering of legal services.

Unintended consequences

Far from any public good flowing from my colleagues’ conclusion, it would seem to follow from the analysis in the majority opinion that indigent criminal defendants can threaten their lawyers, witnesses, or court officials with impunity as long as they do so in private conversation with appointed counsel. Under the court’s holding today, it appears that no evidentiary use could be made of a statement such as the following uttered by the indigent defendant to their court-appointed lawyer: “You are doing a terrible job for me. I know where you and your family live, and I am going to torture and kill you all.” Similarly, if a court-appointed defense attorney disclosed to the court that a defendant who was on pre-trial release had repeatedly threatened to kill the complaining witness (as Rule 1.6 of the Rules of Professional Conduct would permit the attorney to do), that information could not be used to revoke the defendant’s release. These results would be alarming. My colleagues disclaim an intent to hold categorically that all threats uttered by an indigent criminal defendant to court-appointed counsel are protected by the expansive attorney-client privilege the majority opinion creates, see ante at note 30, but the opinion does not explain what facts and context different from those involved in this case would call for a different conclusion.

The dissent would hold that the second threats after the attorney's express warning clearly admissible.

I could see the court taking this on en banc.

Here is a similar case (not court-appointed counsel) from Maryland that I use in my teaching. (Mike Frisch)

Marital Criming Was Protected

The New Jersey Supreme Court has held that the marital communications privilege was not (as is the attorney-client privilege) subject to the crime-fraud exception prior to a legislative enactment

In this appeal of defendant Ashley D. Bailey’s conviction of two counts of second-degree official misconduct, we determine whether the crime-fraud exception to the marital communications privilege governed text messages that defendant exchanged with her husband on September 16, 2014 -- after the Court proposed the exception, but before the Legislature enacted it into law.

The trial court held that the crime-fraud exception properly applied to the text messages without raising ex post facto concerns and admitted the messages into evidence at defendant’s trial. The Appellate Division affirmed.

We disagree that the crime-fraud exception can be properly applied to marital communications that preceded the Legislature’s amendment of N.J.R.E. 509. We find no evidence that the Legislature intended that amendment to retroactively apply to otherwise privileged marital communications that occurred prior to that amendment. We therefore hold that the trial court’s admission of the text messages constituted error. However, we view that error to be harmless given the extensive evidence presented by the State in support of defendant’s official misconduct convictions.

Accordingly, we modify and affirm the Appellate Division’s judgment.

(Mike Frisch)

Privilege Not Waived

The North Carolina Supreme Court affirmed the conclusion of the Court of Appeals that it was reversible error to allow the client's former attorney to testify that it was his strategy to delay the case, offered in response to the client's motion to dismiss on speedy trial grounds

We affirm the Court of Appeals’ holding on the evidentiary question and conclude that the trial court improperly admitted the testimony of Mr. Farook’s prior attorney where there was no waiver of the attorney-client privilege. Because the trial court plainly erred in admitting the testimony of Mr. Farook’s former attorney as evidence against him without justification or waiver, the trial court’s order must be reversed. However, the State may have had alternative ways to put into evidence the same facts the attorney testified to if the improperly admitted testimony had not been admitted in the first place. The State may also have decided to rely on entirely different facts not elicited before the trial court if it had not been allowed to introduce the improperly admitted testimony. While the delay in this case is extraordinary and the facts in the record relied on by the Court of Appeals in concluding that Mr. Farook’s Sixth Amendment rights were violated appear largely uncontested, we nevertheless remand this case for a rehearing on Mr. Farook’s speedy trial claim rather than evaluate the evidence at this stage. Accordingly, we reverse the holding of the Court of Appeals to the extent that it allowed Mr. Farook’s motion to dismiss.

The client was represented by a succession of four attorneys, one of whom was the sole witness responding to the motion to dismiss

A hearing on Mr. Farook’s motion to dismiss was held on 24 September 2018. Mr. Farook’s former attorney, Mr. Davis, testified against him as the State’s sole witness. Importantly, Mr. Davis testified that it was his desire to delay the case once it became clear that Mr. Farook would possibly face a violent habitual felon indictment because in his experience delay would work to Mr. Farook’s advantage. He also testified generally to the backlog of cases that beset the Rowan County courts at the time and explained that he told Mr. Farook sometime during his representation that it was unlikely he would be available to represent him at a trial because of his other professional obligations.

The case moved on to trial, where the defendant was convicted and sentenced to life without parole. (Mike Frisch)

When Are Privileged Communications Placed "At Issue"?

The Massachusetts Supreme Judicial Court dealt with the "at issue" waiver of attorney-client privilege in addressing a host of related issues

This case comes to us after a judgment entered dismissing the plaintiffs' claims, with prejudice, as a sanction for failing to comply with a discovery order requiring them to produce communications they had withheld from discovery on the ground that the communications were subject to the attorney-client privilege.

Holding

We conclude that the plaintiffs were entitled to invite dismissal of their claims as a sanction in order to obtain appellate review of the discovery order, and that the single justice's interlocutory review of the discovery order did not foreclose this appeal. We also conclude that, although the plaintiffs did not put their privileged communications "at issue" by bringing their claims against the defendant, they did put the privilege "at issue" by relying on the discovery rule to toll the statute of limitations. However, this does not result in a blanket waiver of the privilege, and we therefore vacate the judgment and portions of the discovery order and remand the case so that a particularized assessment of the purportedly privileged communications may be made. As to the plaintiffs' reliance on the common interest doctrine, we agree with the motion judge that the plaintiffs failed to establish that they were entitled to the doctrine because they were not both represented by counsel when they shared privileged information with each other. Finally, we conclude that the plaintiffs failed to establish that their accountants were necessary agents of their attorney, and thus they failed to establish that communications with those accountants were entitled to protection as attorney-client communications. Accordingly, we affirm the judge's ruling that communications withheld on the basis of the common interest doctrine should be produced, as well as the judge's similar ruling with respect to communications with the accountants. However, we vacate the remainder of the discovery order and remand for further proceedings.

Reasoning

With these principles in mind, we turn to the case at hand. As we have already stated, the plaintiffs allege that Allen committed a breach of his responsibilities to their mother in his handling of her legal affairs while she was alive, and to them while he was acting as trustee after the mother's death. These professional liability claims against Allen do not depend on communications the plaintiffs had with attorneys they hired or consulted to look into and evaluate Allen's performance. The claims against Allen rise and fall on what he did, or did not, do; they do not depend on legal advice from the lawyers the plaintiffs hired to look into Allen's performance. This is not a situation like the one in Zabin, 73 Mass. App. Ct. at 157-158, where the lawyers had all been involved in handling the same underlying litigation. Accordingly, the plaintiffs did not place "at issue" their attorney-client communications with other lawyers simply by asserting claims against Allen.

By contrast, the plaintiffs' reliance on the discovery rule to toll the statute of limitations did place "at issue" privileged communications to the limited extent they bear on the question of when the plaintiffs discovered, or reasonably should have discovered, that they had been harmed or may have been harmed by Allen's conduct.

(Mike Frisch)

Predominant Purpose Was Business Advice

The Minnesota Supreme Court affirmed a district court's finding that a report prepared by outside counsel was not protected by attorney-client privilege.

The report had been provided inadvertently in discovery and a "claw back" motion had been filed

The underlying litigation in this case involves a product-liability lawsuit brought by respondent Colby Thompson against appellant Polaris Inc. Before this litigation began, Polaris was subject to a government safety investigation and potential enforcement action under federal consumer product safety laws. Polaris retained outside counsel to conduct an audit into its safety processes and policies. After completing the audit, the lawyers provided a 32-page report, which included recommendations to improve compliance performance. Polaris inadvertently disclosed the audit report during discovery in the product-liability litigation with Thompson. Polaris then sought to claw the document back, asserting that the report is protected by the attorney-client privilege. Finding that the predominant purpose of the report was business advice, not legal advice, the district court denied the claw-back request while permitting redactions of the legal advice in the report. Polaris then sought a writ of prohibition to prevent disclosure of the report. The court of appeals denied the writ of prohibition, and Polaris sought further review.

At issue here is whether the report in its entirety is protected by the attorney-client privilege. Because we conclude that the district court did not clearly err by finding that the predominant purpose of the report is business advice, we affirm the denial of the writ of prohibition. We also deny Thompson’s motion to dismiss the appeal for lack of jurisdiction.

Holding

we hold that, when a document contains both legal advice and business advice, for the attorney-client privilege to apply to the document in its entirety, the predominant purpose of the communication must be legal advice. The privilege does not protect the entirety of the document if legal advice is merely one purpose and not the primary purpose of the communication. See Harrington, 144 A.3d at 416 & n.7. We stress, however, that even when the predominant purpose of the communication is business advice, the attorney-client privilege will protect any portions of the document that contain legal advice.

Standard of review

The special master found that the predominant purpose of the audit report was “giving business advice,” reasoning that the report was distributed to Polaris management and the board of directors to “implement operational changes.” The report addresses the organizational culture of Polaris and discusses the areas of product design, engineering, and manufacturing practices, with the express goal of “improv[ing] the process Polaris uses to assess safety risks.” The special master essentially determined that the primary purpose of the report was setting corporate policy. We conclude that the special master did not clearly err in finding that these aspects of the report address business matters.

Justice Anderson dissented

I agree with the court’s reasoning regarding our jurisdiction, the predominant purpose test, and the standard of review. But I disagree with the court’s conclusion that the report drafted by Crowell & Moring LLP (the Report) provides predominantly business advice and therefore is not subject to the attorney-client privilege in its entirety.

Appellant Polaris, Inc. (Polaris) sought professional assistance after receiving notice of an investigation from the Consumer Product Safety Commission (CPSC) regarding alleged violations of the Consumer Product Safety Act (CPSA). Polaris specifically desired legal advice regarding compliance weaknesses and how to successfully address those weaknesses. To that end, Polaris did not hire a business consultant; nor did it retain an engineer, a public relations expert, or an operations analyst. The company hired an attorney; specifically, Polaris retained the former general counsel of the very government agency investigating it—the CPSC. That attorney, Cheryl Falvey, along with her law firm, Crowell & Moring, investigated Polaris for CPSA compliance issues and, in a 32-page Report, provided recommendations on how to address those issues. Polaris did not ask Falvey for her input on better engine design. And Polaris did not ask for—nor does the Report provide—advice on how to run its business more profitably.

Despite Falvey’s expertise in CPSA compliance, the Report’s findings and recommendations regarding the regulatory environment for CPSA compliance, and its dearth of advice on how to increase the profitability of Polaris, the court concludes that the predominant purpose of the Report is business advice and, therefore, the Report is not entirely privileged. Not only is the court’s conclusion wrong, but it will also frustrate
attorney-client relations, discourage businesses from seeking legal advice, and require lawyers to pepper client communications with legalese and superfluous citations.

I respectfully dissent.

Chief Justice Gildea joined the dissent. (Mike Frisch)

Remand In Facebook Privilege Litigation

An opinion of the Massachusetts Supreme Judicial Court

In this case we address the applicability of the attorney-client privilege and the work product doctrine to an internal investigation conducted by the respondent, Facebook, Inc. (Facebook). After public reporting revealed potential widespread misuse of Facebook user data by third-party applications (apps), Facebook hired a law firm, Gibson, Dunn & Crutcher LLP (Gibson Dunn), to conduct a far-reaching investigation to identify the extent to which apps had misused user data and advise Facebook on potential resulting legal liabilities. This investigation is known as the app developer investigation (ADI). Around the same time, the Attorney General opened an investigation into Facebook under G. L. c. 93A, focusing on whether Facebook misrepresented the extent to which it protected or misused user data.

As part of that investigation, the Attorney General served Facebook with several civil investigative demands (demands). At issue are six requests contained within these demands that sought the identities of the apps and developers that Facebook reviewed at various stages of the ADI, other information associated with the review of the identified apps, and internal  communications about those apps. Facebook asserted that both the attorney-client privilege and the work product doctrine protected this information. The Attorney General filed a petition in the Superior Court seeking an order compelling Facebook to comply with the disputed requests. A judge concluded that most of the information is neither privileged nor work product, as it was not prepared in anticipation of litigation, and that even if it was prepared in anticipation of litigation, it is all factual information.

We conclude that the Attorney General's targeted requests allow Facebook to tailor its responses to the first five of the six requests to avoid disclosure of communications protected by the attorney-client privilege. We also conclude, however, that the documents sought by the first five requests were prepared in anticipation of litigation and therefore are covered by the work product doctrine. We further conclude that a remand is required to separate "opinion" work product from "fact" work product for at least some of these documents. To the extent the work product is fact work product, we conclude that the Attorney General has satisfied the heavy burden of demonstrating a substantial need for the information. Finally, as for the sixth request, seeking internal communications about the apps, we have determined that this request encompasses both privileged and nonprivileged communications, and therefore requires preparation of a privilege log and further review as determined by the judge.

The investigation arose from the Cambridge Analytica reportage

The 2018 reporting of this incident sparked a wave of litigation against and investigations into Facebook. By the end of 2018, Facebook faced at least five securities class actions, eight derivative actions, three books and records actions, and thirty-nine consumer-based suits, most of which also were class  actions. This number swelled to at least sixty-five litigations before the end of 2019. Facebook is also being investigated by a number of State, Federal, and foreign regulators.

Gibson Dunn led an app developer investigation ("ADI") team

Shortly after the media coverage of the Cambridge Analytica incident in March 2018, the Attorney General began investigating Facebook under G. L. c. 93A, § 6. The purpose of the investigation is to identify any other apps that misused user data and assess whether Facebook followed its policies and commitments to its users regarding user data. Over the course of the investigation, the Attorney General has issued three demands.

The first demand was issued in April 2018. The second demand, issued in June 2018, sought information on the apps that Facebook had suspended and information on Facebook's internal policies and procedures surrounding apps. As part of its response, Facebook provided the Attorney General with detailed information on how it has conducted the ADI.

The third demand, issued on November 5, 2018, is the subject of this dispute. In this demand, the Attorney General sought the identities of and information regarding the apps and developers that Facebook identified and reviewed as part of the ADI. Specifically, the Attorney General took the detailed descriptions of the ADI that Facebook provided and used that language in her requests. In response, Facebook provided updated information on suspended apps but refused to comply with several of the requests.

The court noted Facebook's extensive voluntary production and public statements concerning the ADI.

The first five requests do not require the production of any communications between Facebook and counsel during the ADI process.13 Rather, these requests only seek documents "sufficient to identify" the apps that fall within the five categories of requested documents identified  supra or lists of the apps themselves, and other information associated with those apps. While this certainly requires the production of factual information relevant to the Attorney General's investigation, and such factual information has almost certainly been contained in attorney-client communications, it does not require the production of the attorney-client communications themselves. This is a crucial distinction...

The sixth request broadly seeks "[a]ll of Facebook's internal communications and internal correspondence concerning" several categories of apps sought in the other requests. Facebook refused to comply with this request and asserted that it called for the production of privileged communications. The judge below ordered Facebook to produce a detailed privilege log identifying any documents it was withholding on the basis of the privilege. While this case proceeded on appeal, Facebook provided the Attorney General with at least two privilege logs responsive to this request.

...We...agree with the judge below that the appropriate course of action is for Facebook to prepare a detailed privilege log so that the Attorney General can challenge any assertions of privilege.

Work product

we conclude that the app information required to be produced is clearly covered by the work product doctrine. We also conclude that if this app information is not opinion work product, Facebook must disclose that information, because the Attorney General has demonstrated a substantial need for the information and could not obtain it without undue hardship. The difficult issue is separating fact from opinion work product in the first five requests. We set out the mode of analysis here but remand to the judge its application to the specific requests.

....In sum, we conclude the Attorney General has demonstrated both substantial need and undue hardship for the fact work product about the apps.

(Mike Frisch)

Flagpoles And Privilege Waiver

The Mississippi Supreme Court has held that an insurer had waived attorney-client privilege in communications with in-house counsel. 

This is an interlocutory appeal of a bad-faith failure-to-pay claim. The trial court found that the insurance company waived the attorney-client privilege and was required to produce written communications between its in-house counsel and its claims handler and to produce its in-house counsel for a deposition. We agree and affirm.

The claim involved damage over $2,000 caused to a flagpole by an unidentified driver

Travelers denied Renaissance’s claim. Travelers’ claims handler, Charlene Duncan, determined there was no coverage under the UM policy because the flagpole was not a covered “auto.”

Editor's note: This position makes a certain amount of intuitive sense, as the dissent notes. 

Renaissance's counsel made an argument for coverage

On February 19, 2016, Renaissance’s attorney, Rick Wise, sent an email to Duncan that set forth Renaissance’s legal arguments as to why coverage should be afforded under Mississippi’s UM statute.

...Before responding, Duncan sought legal advice from Travelers’ then in-house counsel, Jim Harris. Duncan is not an attorney. Duncan sent a letter, dated March 2, 2016, that again advised Renaissance that its claim was denied under its UM policy because the policy required damage to a covered auto.

In the ensuing litigation

Renaissance took Duncan’s deposition and asked that she explain both the denial letter and the reasons Travelers denied the claim.

That litigation

Renaissance commenced this claim on August 25, 2016. In the complaint, Renaissance asserted a claim for coverage under the UM policy and a claim for bad-faith denial of the claim. In an effort to resolve the matter, Travelers paid the full amount for damage to the flagpole. Renaissance, however, continued to litigate its bad-faith claim.

As to the advice

After in camera review, the trial court found that “Travelers ha[d] waived the attorney-client privilege as it relates to attorney Jim Harris.” The trial court ordered Travelers to produce the emails and to produce Harris for a deposition. Travelers filed a petition for interlocutory appeal, which this Court granted.

Here

Travelers sent the denial letter to Renaissance in an effort to explain its arguable and legitimate basis to deny the claim. The letter was signed by Duncan; but based on her deposition testimony, it clearly was prepared by someone other than
Duncan, most likely Harris. If so, Harris did not act as legal counsel and give advice to Duncan to include in the denial letter. Instead, the denial letter contained Harris’s reasons to deny the claim. Duncan’s signature was simply an effort to hide the fact that Harris, not Duncan, had the personal knowledge of Travelers’ reasons to deny the claim and to use the attorney-client privilege as a sword to prevent Renaissance from discovering the reasons from the person who had personal knowledge of the basis to deny the claim.

..Renaissance is entitled to depose the individual with personal knowledge of the basis for the denial of coverage as set forth in the denial letter. That person is Harris.

There is a dissent from Justice Ishee joined by Justice Coleman 

The majority concludes that the legal arguments contained in Duncan’s denial letter were probably the product of her consultation with Harris. That is almost certainly the case, but the majority then goes on to conclude that since Duncan, the claims handler, could not explain the legal arguments, the letter “clearly was prepared by someone other than Duncan, most likely Harris” and that “Duncan’s signature was simply an effort to hide the fact that Harris, not Duncan, had personal knowledge of Travelers’ reasons to deny the claim.” Maj. Op. ¶ 18. Thus, the majority reasons, Travelers has waived the attorney-client privilege, and Renaissance is entitled to depose the attorney, Harris, and to discovery of the correspondences between the claims handler and the attorney.

With all due respect to the majority, I disagree with its underlying premise. Duncan clearly understood the reason for denying the claim, which was the same reason stated in her initial denial letter: the express language of the policy precluded coverage. Duncan faltered only when asked to respond to Renaissance’s legal arguments concerning questions of statutory interpretation that might have overridden the express policy language. The majority thus appears to impose a requirement that in order to preserve the privilege, a claims handler must be able to explain legal arguments at her deposition—the same legal issues for which she sought advice in the first place. I can find no authority to support this proposition, and I fear it is an unreasonable standard that will have deleterious and chilling effects on the exercise of the attorney-client relationship. “[A]n insurance company should be free to seek legal advice in cases where coverage is unclear without fearing that the communications necessary to obtain that advice will later become available to an insured who is dissatisfied with a decision to deny coverage.” Aetna Cas. & Sur. Co. v. Superior Ct., 200 Cal. Rptr. 471, 475 (Cal. Ct. App. 1984).

Dissent concludes

The underlying facts of the claim here were not disputed: an unidentified motorist struck and damaged Renaissance’s flagpole. Travelers’ attorney’s participation was limited to evaluating legal arguments presented by Renaissance’s attorney in a demand letter after the initial denial of coverage. The communications between Travelers’ claim handler and its attorney are protected by the attorney-client privilege, and I cannot find the privilege to have been waived by the mere involvement of the attorney in evaluating the legal arguments  presented in Renaissance’s demand letter. I respectfully dissent.

It Happened At The World Bank

The District of Columbia Court of Appeals applied absolute immunity under the judicial proceedings privilege to affirm the dismissal of a defamation action.

The facts

Appellant Shinok Park worked under appellee Milan Brahmbhatt at the World Bank (the Bank). Ms. Park reported Mr. Brahmbhatt to the Bank’s Office of Ethics and Business Conduct (the EBC), alleging that he sexually assaulted and harassed her. The EBC investigated her allegations and, when doing so, afforded Mr. Brahmbhatt multiple opportunities to respond. Mr. Brahmbhatt retained appellee Peter Hansen as counsel during the Bank’s investigation. Through counsel, Mr. Brahmbhatt submitted two memoranda to the EBC, in which he claimed he had a consensual sexual relationship with Ms. Park and accused her of blackmailing and extorting him for employment opportunities at the Bank. According to Ms. Park, the memoranda also implied that she was a prostitute. The EBC sent a report to the Bank’s Vice President of Human Resources, attaching the two memoranda. In the report, the EBC recommended that the Vice President sanction Mr. Brahmbhatt for violating Bank rules by failing to resolve a de facto conflict of interest, but not to sanction him for sexual assault or harassment. The Vice President adopted the EBC’s  recommendation. Mr. Brahmbhatt appealed his sanction to the World Bank Administrative Tribunal (the WBAT), which affirmed the Vice President’s decision.

Ms. Park later was terminated from her employment at the Bank. She sued Mr. Brahmbhatt and Mr. Hansen in Superior Court for defamation, claiming the two memoranda they submitted to the EBC defamed her and resulted in her termination.

The memoranda were uncovered through discovery in a parallel proceeding.

The privilege on these facts

we have applied the judicial-proceedings privilege to statements made preliminary to judicial proceedings so long as “an attorney [made the statements] while performing his function as such,” there is “a reasonable nexus between the publication in question and the litigation under consideration,” and the statements had a genuine “relationship to potential litigation” and were not made as a “mere afterthought or [with a] sham rationale.” These requirements have been met in instances where an attorney solicited shareholders of a corporation to participate in a class action lawsuit against the corporation; an attorney questioned an adversary’s competency in the English language while waiting in a hearing room of the Rental Accommodations Office prior to commencement of a proceeding;  and an attorney responded to a threat of a lawsuit against the attorney’s client. 

In this case, Mr. Hansen submitted the memoranda to the EBC on behalf of Mr. Brahmbhatt as preliminary submissions to the WBAT. First, Mr. Hansen submitted the memoranda is his capacity as an attorney. Both memoranda bore his law firm’s letterhead in the top center, “LAW OFFICES OF PETER C. HANSEN, LLC,” and specified that he was “[c]ounsel to Mr. Brahmbhatt.” Second, the memoranda had a “reasonable nexus” to future WBAT proceedings. Both memoranda contested facts and cited WBAT case law to argue that Ms. Park’s allegations did not meet the requisite standard of proof because other evidence indicated she was lying, and that the EBC’s findings of  fact and conclusions of “law” in its draft report were erroneous based on WBAT precedent. Third, Mr. Hansen’s submissions indicate that he intended, in part, to establish a record for future WBAT proceedings; those proceedings, in other words, were not a mere afterthought. It was crucial that Mr. Hansen establish a record early on, as the WBAT historically has not heard oral arguments or held evidentiary hearings.

The statements

 The allegedly defamatory statements in this case were relevant to future WBAT proceedings. Ms. Park claimed Mr. Brahmbhatt sexually harassed and assaulted her, and Mr. Brahmbhatt defended himself on factual grounds, specifically, that he was the victim, not Ms. Park, something that if true would certainly have aided Mr. Brahmbhatt’s defense. The question is not whether Mr.  Hansen executed a sound or sensible argument, but whether a reasonable person might construe the statements he made as relevant.

Other safeguards exist

And although the specific requirements of the privilege have been met here, “the consequent immunity from a defamation suit does not mean that the attorney may not be sanctioned for misconduct."  An overly “bumptious and unrestrained” attorney who makes defamatory statements without regard for their truth or relevance, we predict, will render service counterproductive to his client’s interests and may be liable for malpractice in a given case. That attorney, too, may be subject to professional discipline.

It is worth noting that the Bank seeks to account for the interests of the complainant—here, Ms. Park—by imposing a duty on the EBC, witnesses, and staff members to keep confidential all information related to an investigation of a complaint. The WBAT, as well, sought to protect Ms. Park’s identity by referring to her as “Ms. R.” Although Ms. Park claims that the statements in the memoranda were somehow leaked and led to her termination, she has offered us no evidence that leaks are a general problem at the Bank. And we presume that the Bank does its best to honor its rules regarding confidentiality, a presumption Ms. Park has not rebutted.

Associate Judge Glickman authored the opinion joined by Associate Judges Fisher and Thompson. (Mike Frisch)

Third Party Presence Waives Privilege

The Tennessee Court of Appeals affirmed a finding that the presence of a third party in communications with a client's divorce attorney waived the attorney-client privilege.

The client had been advised that the situation would waive privilege but nonetheless proceeded. 

[The client] filed a complaint for divorce against Timothy J. Pagliara (“Husband”). At that time, Wife was represented by an attorney, Marlene Moses. While the divorce action was pending, Wife consulted with her attorney, Ms. Moses, in the presence of Wife’s friend, Adela Ferrell, concerning, in part, whether Wife should report to law enforcement certain actions by Husband. Ms. Moses correctly had informed Wife that their communications would not be protected by attorney-client privilege with Ms. Ferrell present, but Wife insisted Ms. Ferrell remain in the room. Husband’s counter complaint alleged that upon Wife’s request for legal advice as to whether she should report Husband’s actions to law enforcement, Ms. Moses responded to Wife that reporting his conduct was the only way for Wife to gain an advantage in the divorce proceeding.

Ms. Moses then referred Wife to her son-in-law, Ben Russ, an attorney practicing criminal law. Ms. Ferrell drove Wife to her meeting with Mr. Russ and was present during this meeting. Mr. Russ also informed Wife that their conversations would not be privileged with Ms. Ferrell present in the meeting, but Wife insisted that Ms. Ferrell be present. Ms. Ferrell, therefore, was present for this meeting with Mr. Russ wherein they discussed reporting Husband’s actions to law enforcement.

Wife subsequently reported Husband’s actions to the Franklin Police Department.

The husband sued for intentional and negligent infliction of emotional distress and sought discovery of these communications.

Because Wife was in the best place to have the knowledge necessary to prove the existence of attorney-client privilege, the burden of proof was with Wife to show that the communications between her and her lawyer were protected by attorney-client privilege. See Culbertson, 393 S.W.3d at 684; State ex rel. Flowers., 209 S.W.3d at 616. Wife did not present evidence demonstrating that the attorney-client privilege applied to any specific one or more of the meetings with her attorneys and agreed with the Trial Court’s finding that she could not identify which meetings Ms. Ferrell was present for. Our acceptance of Wife’s position would mean that because neither Wife nor Ms. Ferrell could identify which meetings Ms. Ferrell was present, the attorney-client privilege would apply whether Ms. Ferrell was present or not. That is not the law in Tennessee. Wife has not met her burden of proof to establish that the attorney-client privilege protected these communications. As such, we affirm the Trial Court’s ruling that the attorney-client privilege does not protect these communications between Wife and Ms. Moses and Wife and Mr. Russ because Wife has not met her burden of proof to establish that the privilege applies to any specific communication at issue.

(Mike Frisch)

Third Party Disclosure Waives Privilege

The Delaware Court of Chancery has held that a party waived its attorney-client privilege by submitting the documents at issue to the Federal Communication Commission.

The Plaintiffs seek thirty-one (31) documents previously produced by Defendant IDT Corporation (“IDT”) to the Federal Communications Commission (“FCC”) in 2016 in connection with an investigation pertinent to this Action.

The court distinguished an earlier decision

But here, I find, IDT did not have an analogous expectation of privacy because the documents were not produced to the FCC under a confidentiality agreement. Instead, IDT merely requested that the documents remain confidential. IDT had no non-disclosure agreements with the FCC, and the Requests cited by IDT are insufficient to show that IDT reasonably believed that the documents would not be revealed to other adversaries. In other words, IDT found it advantageous to disclose the privileged documents to a third party, the FCC, despite knowing that they could be disseminated. IDT did not have a commitment, let alone an enforceable agreement, with the FCC to keep the documents confidential. In that situation, IDT manifested its intent to waive any privilege by disclosing the documents to a third party. I assume that IDT desired that the thirty-one documents remain confidential, but such desire does not amount to the reasonable expectation required to avoid a waiver under Saito, which is an exception to the general rubric that outside disclosure vitiates the privilege.

IDT has also cited cases that decline to find a waiver of privilege where privileged documents were inadvertently produced. However, nothing in the record indicates that IDT inadvertently produced the documents, instead IDT has imply asserted that “[i]ts inclusion of a small number of privileged documents in its voluminous production to the FCC does not waive privilege.” I find the cases cited by IDT inapposite as to whether privilege was waived by IDT’s purposeful production.

(Mike Frisch)

No Spousal Privilege In Alleged Crime Against Child

The Louisiana Supreme Court has held that the spousal privilege is trumped by statutes that protect children from abuse.

On January 30, 2018, the target of the grand jury investigation was charged by Bill of Information with one count of molestation of a juvenile, a violation of La. R.S. 14:81.2, arising from an incident in 2003 in which he allegedly molested his children’s babysitter. The target was subsequently arrested and pled not guilty. Following the District Attorney’s voluntary recusal, the Attorney General stepped in as District Attorney ad hoc and dismissed the charges, choosing to proceed by seeking a grand jury indictment. In conjunction with the grand jury proceeding, the state issued a subpoena to Jane Opperman, the target’s wife, to appear before the grand jury. Mrs. Opperman filed an “Affidavit of Spouse” wherein she asserted “her lawful privilege to refuse to give evidence in any criminal proceeding against her husband, pursuant to Louisiana Code of Evidence article 505.” The state subsequently filed a “Motion to Determine Applicability of Spousal Privileges,” arguing the privilege does not apply when a spouse is charged with a crime against the person of a child.

Holding

Because the spousal witness privilege was created solely by the legislature, it can also be modified or withdrawn. See Bellard, 533 So. 2d at 965 (citing State v. Smith, 489 So. 2d 255 (La. App. 5th Cir. 1986) and State v. Fuller, 454 So. 2d 119 (La. 1984)). The legislature has provided for such abrogation in La. R.S. 14:403(B). Based on the facts of this case, we hold that under La. R.S. 14:403(B), Mrs. Opperman is not entitled to assert the spousal witness privilege at a grand jury proceeding targeting her husband.

Background on the controversy is described by WBRZ 2 

Small town scandal became dirtier in the last few days when the ex-wife of the West Feliciana district attorney filed suit against her former divorce attorney in a fight over airing dirty laundry.

In court filings obtained by WBRZ, Kelly Ballard, the now ex-wife of District Attorney Sam D’Aquilla, wrote her lawyer broke her trust and attorney-client privilege. Ballard believes the divorce attorney, David Opperman, used her divorce as leverage.

Ballard said Opperman exposed her torrid relationship with her ex-husband when he discussed allegations of abuse, “sexual affairs and planting of evidence” by D’Aquilla.

Opperman accused D’Aquilla of having a sexual relationship with the former coroner, destroying evidence in other criminal cases and of being under investigation by federal authorities.

“The D’Aquillas are the gift that keeps on giving,” Opperman said in a statement to WBRZ’s Investigative Unit. Opperman said, “you just can’t escape these people.” In a phone call with Chief Investigator Chris Nakamoto Tuesday, Opperman denied the allegations in the lawsuit.

Ballard’s marital issues were revealed in court documents highlighted in a previous WBRZ report where Opperman asked that D’Aquilla be recused from prosecuting him in a separate criminal case.

D’Aquilla and Opperman, have been political adversaries – Opperman accusing the D.A. of wrongdoing as D’Aquilla attempted to prosecute a 15-year-old abuse case against Opperman.

Opperman was arrested in December 2017, accused of molesting a teenage girl in 2003. He has denied the allegations.

The Louisiana Attorney General dismissed the charges in November but said a grand jury will convene to hear evidence in the case presented by state attorneys.

The dismissed charges were from D’Aquilla’s attempt at prosecution. He recused himself from the case, moving it to the attorney general.

In the latest court wrinkle, Ballard, the D.A.’s ex-wife, also accused Opperman of malpractice.

Opperman ran for district attorney against D’Aquilla in 2014 and lost.

Baton Rouge attorney Jill Craft is representing Ballard, the ex-wife.

The alleged molestation took place in 2003. (Mike Frisch)

Malpractice Suit Waives Attorney-Client Privilege For Third Party Counsel In Same Transaction

The Georgia Supreme Court holds that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation

Under longstanding Georgia law, when a client sues his former attorney for legal malpractice, the client impliedly waives the attorney-client privilege with respect to the underlying matter or matters to the extent necessary for the attorney to defend against the legal malpractice claim. The issue presented in this appeal is whether the implied waiver extends to the client’s communications with other attorneys who represented the client with respect to the same underlying matter, but whom the client chose not to sue. The trial court held that the waiver does extend to such other counsel and therefore denied a motion for a protective order in this legal malpractice case. The Court of Appeals reversed, see Moody v. Hill, Kertscher & Wharton, LLP, 346 Ga. App. 129 (813 SE2d 790) (2018), and we granted certiorari to decide this issue of first impression. We hold that when a client sues his former attorney for legal malpractice, the implied waiver of the attorney-client privilege extends to the client’s communications with other attorneys who represented the client with respect to the same underlying transaction or litigation. For the reasons described below, we reverse in part and vacate in part the Court of Appeals’ judgment, and we remand the case with direction.

The client (Moody and two of his business entities) had invested in a California aerospace company. The law firm provided advice that included termination of the company president

Despite Moody’s specific requests, HKW failed to assert certain defenses properly, including that the California court lacked personal jurisdiction over Moody. HKW did not disclose or obtain written waivers of any potential or actual conflicts of interest resulting from prior or ongoing representation of Leucadia Group and Miller. Miller filed a motion in the Fulton County lawsuit to disqualify HKW, which was granted, and HKW then withdrew from the California lawsuit. The California court ultimately ruled that Moody’s appointment to Leucadia Group’s board of directors, Leucadia Group’s issuance of shares to LIH, and Miller’s termination as president of Leucadia Group were all void.

In the resulting legal malpractice suit, the law firm sought discovery

HKW requested, among other things: (1) Holland & Knight’s file for any corporate work performed for Plaintiffs regarding Leucadia Group, Miller, another named individual, and another named company; (2) Holland & Knight’s litigation file for the Fulton County lawsuit; (3) Holland & Knight’s litigation file for the California lawsuit; and (4) all correspondence related to that corporate work and the Fulton County and California lawsuits, including communications between Plaintiffs and Holland & Knight.

Both Plaintiff and Holland & Knight asserted privilege and sought a protective order

the trial court denied Plaintiffs’ motion for a protective order. The trial court found that it was undisputed that Holland & Knight together with HKW represented Moody in connection with the matters that are the subject of the legal malpractice complaint and held that Plaintiffs therefore had “waived the attorney-client privilege and work product protection concerning Holland & Knight . . . by asserting the present legal malpractice claims.”

The court here reviewed state law on attorney-client privilege and implied waiver

A similar rationale requires recognition that the implied waiver of the attorney-client privilege extends to other attorneys who represented the plaintiff-client in the same underlying matter. To succeed on a claim of legal malpractice, the plaintiff-client must prove three elements: “(1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff.” Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 265 Ga. 374, 375 (453 SE2d 719) (1995) (citation and punctuation omitted). Thus, by suing HKW for legal malpractice, Plaintiffs have put at issue questions of proximate causation, reliance, and damages, all of which may have been affected by other attorneys who represented Plaintiffs in the same matters underlying Plaintiffs’ malpractice complaint.

The Court of Appeals should have affirmed the trial court’s ruling that Plaintiffs  were not entitled to a protective order based on attorney-client privilege.

The Court of Appeals opinion is linked here. 

The court's remand recognized that the work-product doctrine must be considered. (Mike Frisch)

No Privilege

The Kentucky Supreme Court affirmed and remanded in part in a matter of attorney-client privilege involving a denied promotion at the University of Louisville School of Medicine’s Division of Gynecologic Oncology.

On October 23, 2009, Dr. Helm initiated a faculty grievance procedure against two of his supervisors, Dr. Christine Cook and Dr. Lynn Parker. Appellant Ruby Fenton (Fenton) had served as an attorney for the University prior to the grievance proceedings, and she was retained to represent Dr. Cook and Dr. Parker in the grievance proceedings. Her attorney fees were paid by the University; fees for Dr. Helm’s attorney were not. Under the applicable personnel rules, the University was designated as a neutral arbiter in the faculty grievance process. Thus, Dr. Cook and Dr. Parker were represented by an attorney who had an ongoing attorney-client relationship with the University, the neutral arbiter in the process.

On May 17, 2010, the University’s grievance hearing panel unanimously found that Dr. Helm had been placed on leave in a manner totally contrary to the University’s written policies. The panel recommended that the University comply with Dr. Helm’s contract through its conclusion on July 31, 2010, and that Dr. Helm be allowed to re-submit his application for full professorship.

On June 18, 2010, Dean Halperin refused to accept the panel’s recommendation that Dr. Helm be allowed to re-submit his application, stating it was moot because Dr. Helm’s contract would expire on July 31, 2010. Dean Halperin had notified Dr. Helm in February of that year that his faculty appointment would not be renewed. As Dr. Helm had been advised, the University did not renew his faculty appointment, and his last day at the University was July 31, 2010.

Dr. Helm sued and sought discovery of extensive communications between the attorney and a host of University employees

During discovery, Dr. Helm served a subpoena upon Fenton seeking all written communications and notes reflecting communications between Fenton and any person associated with the University relating to the faculty grievance proceedings. The University and Fenton refused to produce the communications and asserted that the requested information was protected by the attorney-client privilege and the work-product privilege.

The trial court initially sided with the University but changed its view and ordered the discovery.

Here the University appealed and sought mandamus

if a trial court orders the production of communications protected by the attorney-client privilege, the aggrieved party is entitled to a writ halting the production of the such communications.

Reviewing the conclusion of the Court of Appeals

...apparently accepting in full the trial court’s findings of fact, the Court of Appeals denied the writ, stating that “[b]ased upon our review of the record, this Court cannot conclude that the trial court abused its discretion by finding that the University failed to carry its burden of demonstrating the applicability of the attorney client privilege.” This appeal by the University and Fenton followed.

The court here agreed that no attorney-client relationship was proven but remanded

The Court of Appeals, however, did not rule upon the University and Fenton’s request for protection of the subject communications based upon the work-product privilege. Thus, we remand to the Court of Appeals for its ruling on that issue.

(Mike Frisch)

Work Product In Washington State

The Washington State Supreme Court affirmed a Court of Appeals remand for violation of the work product protection in connection with a PIP claim. 

Washington law extends work product protection to statements made by an insured to an insurer following an accident in light of the specific parties involved and the expectations of those parties. We must decide if that protection applies here, where the insured has gained the status of insured by statute, rather than by contract. We hold it does. We affirm the Court of Appeals and remand to the trial court for a new trial.

The case involves a child on a bicycle injured in an accident. The police report was not based on first-hand observations and contradicted the child's recollection. The child's mother adopted the report in seeking PIP benefits.

In the lawsuit

In addition to seeking PIP coverage, [mother] Diaz also sued Prieto on behalf of [child] Brayan. The significant difference between the PIP form and Brayan's testimony became a central issue at trial. Prieto's counsel stressed the differences between Diaz's and Brayan's testimony and the PIP form; Diaz's counsel stressed that the PIP form was based on accounts from people who did not see the accident.

The trial court rejected the claim of privilege with respect to the PIP form and allowed defense counsel to cross-examine with a redacted version of the form.

Erroneously

The jury returned a defense verdict. The Court of Appeals reversed, holding the PIP application was work product and its admission was prejudicial, requiring a new trial. Barriga Figueroa v. Prieto Mariscal, 3 Wn. App. 2d 139, 414 P.3d 590 (2018). We granted Prieto's petition for review and denied the issues raised by Diaz. Barriga Figueroa V. Prieto Mariscal, 191 Wn.2d 1004, 424 P.3d 1214 (2018). Washington State Association for Justice Foundation filed an amicus brief.

PIP and the claimant

We hold that an insurer owes a pedestrian PIP insured the same quasifiduciary duties that it owes a named insured who purchases a policy. Specifically, the '"insurer must deal fairly with an insured, giving equal consideration in all matters to the insured's interests.'" See Van Noy, 142 Wn.2d at 794-95 (emphasis omitted) (quoting Tank, 105 Wn.2d at 386). This approach is consistent with our common law and the plain language of RCW 48.01.030, which requires insurers to act in "good faith, abstain from deception, and practice honesty and equity in all insurance matters." (Emphasis added.) With this quasi-fiduciary relationship in mind, we turn to the work product issue.

...as Brayan's parent and natural guardian, Diaz went to a law firm for legal assistance. As part of providing that legal assistance, the law firm sent a PIP application form to the parties' shared insurance company. Diaz did not fill out the forms herself, and it cannot be seriously contended that she sought legal assistance merely to have help filling out forms—Prieto ran over her eight-year-old son's leg, seriously injuring him. That no lawsuit had been filed when Diaz prepared Brayan's PIP application is of no consequence; Diaz plainly signed the form in anticipation of litigation, in a lawyer's office, with assistance from the law firm ultimately suing Prieto. Indeed, in Heidebrink, we stated that had the statements been "made directly to the [insurance company's] selected attorney, it would obviously have been made in anticipation of litigation." 104 Wn.2d at 400. The statements were made in anticipation of litigation. Thus, we hold work product protections apply.

The court noted the extensive defense use of the document in evaluating prejudice

when Prieto's counsel used the PIP form, he almost always emphasized the fact that it was signed by Diaz, thereby attributing the statements to her. Diaz did not make these statements; the legal assistant filled out the PIP form based on the police report. Crucially, the speculative statements in the police report were hearsay and the police report was inadmissible at trial for this reason.

JOHNSON, J. (dissenting)

The work product doctrine is meant to serve as a narrow exception to otherwise broad discovery and is confined to materials that are prepared in anticipation of litigation. Our cases have established that in the insurance context, a determination of whether this protection applies requires that the court conduct a fact-specific inquiry looking at the "specific parties involved and the expectations of those parties." Heidebrink v. Moriwaki, 104 Wn.2d 392, 400, 706 P.2d 212 (1985). We reiterated this factual analysis in Harris v. Drake, where the relationship between the insurer and insured was of particular importance, and we observed that the relationship "requires close examination, evaluating the specific positions of the insurer and insured in each instance." 152 Wn.2d 480, 489, 99 P.3d 872 (2004). The majority acknowledges the fact-specific nature of this inquiry but then ignores it and proceeds to apply work product protection to a personal injury protection (PIP) application form where no factual basis exists to support doing so. Furthermore, even assuming the trial court committed error by admitting the application form, the form was not material to the jury's determination or prejudicial to the plaintiff, and only by selectively mischaracterizing the record does the majority conclude otherwise...

The record simply does not indicate that Diaz anticipated litigation when she signed the PIP application; it indicates only that she employed an attorney who assisted her with filing a PIP claim. By extending work product protections to this application, the majority seemingly, but without expressly stating so, abandons our fact-specific analysis in favor of broad protection for any materials prepared in the insurance context. If we properly apply what our prior cases established and recognize the underlying policy of CR 26(b)(4) favoring broad discovery, work product protections do not apply here.

No prejudice per the dissent

Despite all of the evidence and testimony, the majority never explains, and cannot explain, how the de minimis use of the prior inconsistent statement in the PIP application form, made by a nonwitness to the accident, could have possibly had a material effect on the jury's decision.

(Mike Frisch)

Tennessee Extends Privilege

From the web page of the Tennessee Supreme Court

The Tennessee Supreme Court has held that the attorney-client privilege protects communications between a business’s attorneys and a third party when the third party acts as the functional equivalent of an employee and when the communications relate to the attorney’s representation of the business and were intended to be confidential.

The Supreme Court issued this ruling in a business dispute appealed from the Davidson County Circuit Court. In this case, Dialysis Clinic, Inc. sued to evict tenants from commercial properties in Nashville that the Dialysis Clinic had purchased. The tenants subpoenaed documents from XMi Commercial Real Estate, a property management company hired by Dialysis Clinic to manage the properties. Dialysis Clinic and XMi objected to producing emails between Dialysis Clinic’s attorneys and XMi, arguing that they were protected by attorney-client privilege.  The trial court ruled that XMi did not have to produce the emails because they were covered by attorney-client privilege. The Court of Appeals denied the tenants’ request for review of the trial court’s decision. The Supreme Court agreed to hear the case.

In a unanimous opinion, authored by Justice Sharon G. Lee, the Supreme Court noted that it is increasingly common for businesses to use outside consultants and other independent contractors. These third parties often operate in the same manner as employees of the business and have information needed by the business’s attorneys that no employee of the business has. For that reason, many courts across the country have extended the attorney-client privilege to cover communications between those third parties and the business’s attorneys, when certain conditions are met.

Here, based on existing Tennessee law and cases from other jurisdictions, the Supreme Court ruled that the attorney-client privilege applies to communications between a business’s attorneys and a third party when the third party acts as the functional equivalent of an employee and when the communications relate to the attorney’s representation of the business and were intended to be confidential. Applying this legal framework, the Supreme Court held that XMi was the functional equivalent of a Dialysis Clinic employee and that the emails between XMi and Dialysis Clinic’s attorneys were protected by attorney-client privilege. The Supreme Court affirmed the trial court’s decision and sent the case back to the trial court for further proceedings.

To read the unanimous opinion of the Supreme Court in Dialysis Clinic, Inc. v. Kevin Medley, authored by Justice Sharon G. Lee, please visit the Opinions section of tncourts.gov. Oral arguments for this case were video recorded and are available on tncourts.gov under Supreme Court and Oral Argument Videos.

(Mike Frisch)

A Question Of Privilege

The Tennessee Supreme Court has videos of oral arguments available on line.

A recent case

Dialysis Clinic, Inc. v. Kevin Medley, et al M2017-01352-SC-R11-CV - 

This case considers whether the attorney-client privilege applies to communications between an attorney and a corporate client’s third-party agent.  The trial court in this case denied the defendant’s motion to compel the production of roughly 200 emails based on attorney-client privilege.  The defendants argue that the trial court denied them their procedural due process rights and that there is an absence of law regarding the standards for determining third-party agency privilege in Tennessee.  In response, the plaintiff argues that the trial court properly held that communications by and between plaintiff’s counsel and the third party were protected by the attorney-client privilege.  The plaintiff also argues that the Tennessee Supreme Court already has determined attorney-client privilege as it pertains to a third-party agent.

(Mike Frisch)

A Burning Issue Of Privilege

A fire that destroyed the historic Masonic Temple in Quincy has resulted in a privilege issue remanded by the Massachusetts Supreme Judicial Court.

WBZ4NBC covered the fire

A raging fire has destroyed an iconic Quincy landmark.

The Masonic Temple on Hancock street is now just a shell, after flames tore through the building Monday. Firefighters tried to get inside to douse the flames, but were driven back.

“It’s really sad,” said Jim Bennette, a local Mason, “because this building meant so much to so many people and not just because of the art-deco architecture. At its peak, it was home to 4,000 masons.”

The Masons had arranged to sell the building to a trust

Pursuant to a rider to the purchase and sale agreement, the agreement could not be assigned by the trustee without the prior written consent of the Masons. In a separate agreement executed in April 2013, the trustee assigned the rights to the property under the purchase and sale agreement to Jay Patel in return for $100,000; Patel intended to develop a hotel on the property.

The fire intervened.

Shortly thereafter, the Masons claimed that they had never consented to the assignment, refused to recognize it, and received over $6 million from an insurance claim arising from the fire.

Patel sued the trustees, claiming damages from the failure to secure the consent.

During the course of discovery, the developer plaintiffs noticed the deposition of David Levin, the attorney who represented the Masons with respect to the sale of the property and who had also routinely represented the trust defendants on real estate legal matters for over twenty years. The trust defendants moved for a protective order to bar Levin from disclosing his confidential attorney-client communications with them, claiming that Levin represented them as well as the Masons in the real estate transaction concerning the property, even though Levin took the position that he had represented only the Masons.

After an evidentiary hearing, the motion judge found that there was an attorney-client relationship between Levin and the trust defendants after the fire regarding insurance claims and third-party claims arising from the fire, but that, with respect to the purchase and sale of the property, Levin represented the Masons, not the trust defendants. He therefore ruled that communications between Levin and the trust defendants before the fire were not protected by the attorney-client privilege.

The trust defendants appealed. 

The court considered the matter a discovery dispute and unlike an order disqualifying counsel for appeal purposes

We...conclude that orders requiring the disclosure of privileged material, such as the order in this case, are not categorically irremediable, and therefore are not appealable under the doctrine of present execution...

Ultimately, the doctrine of present execution represents a balancing act that weighs the harm to cost-effective litigation arising from piecemeal interlocutory appeals against the harm that a litigant may suffer from a trial court order that is irremediable on post judgment appeal. We conclude that the sheer volume of potential appeals that would be permitted by including privilege-related discovery orders within the doctrine of present execution, and the inevitable adverse impact on judicial efficiency, outweighs the intrinsic harm that potentially might be suffered by an aggrieved party who is denied an immediate right to appeal.

The court nonetheless considered the merits

we conclude that the motion judge's order cannot stand based on the limited findings that he made. We therefore vacate his order and remand the matter to the motion judge for further factual findings and reconsideration of the motion in light of those additional findings. We express no view as to how the motion should ultimately be decided.

If and when the case returns

A judge's ultimate conclusion as to whether an attorney-client relationship existed is a mixed question of law and fact, which we review de novo.

While Levin represented the trustees in many real estate matters, here the Masons were is client but

The trust defendants and Levin agreed that, because he was representing the Masons as the sellers, the trust defendants would identify Miriam Marcus as their attorney of record in the agreement. Levin admitted that he never communicated with Miriam Marcus, and instead communicated directly with the trust defendants because he knew that Martin always negotiated real estate transactions personally. Levin sent draft documents to the trust defendants for review, prepared a power of attorney form for Martin so that he could sign the purchase and sale agreement on behalf of the Grossman Munroe Trust, and acknowledged having "many conversations" with Martin concerning the transaction after the agreement was signed in September 2012, particularly about deadlines in the agreement and seeking an extension to perform due diligence obligations.  Levin also testified that he discussed with the trust defendants their concerns about financing, construction, and permits related to the division of condominium units on the property; those issues were incorporated into a rider to the purchase and sale agreement. Levin billed the Masons and the trust defendants each one-half of his fee in connection with the purchase and sale transaction.

While Levin denied he also represented the trustees

The trust defendants disputed Levin's testimony. Seymour Marcus testified that Levin had explicitly told him that Levin was going to represent both sides, and that Levin had represented opposing parties to a transaction with them before, in the context of lenders and borrowers and also buyers and sellers. Marcus stated that Levin offered particularized legal advice in meetings -- without the Masons present -- on permitting and construction issues regarding the property and on what "[his] liabilities are to the Masons." He said that Levin instructed them to list Miriam Marcus as their attorney solely as a formality.

No wonder Levin denied it.

the judge first found that there was an attorney-client relationship between Levin and the trust defendants after the fire. With respect to the matters involving the purchase and sale agreement before the fire, the judge found that the Masons and the trust defendants shared a common interest in the sale, transfer, and development of the property, but not a common interest in the sense "that their interests were aligned with regard to this transaction."

But

The judge...found that there was no attorney-client relationship between the trust defendants and Levin with respect to the purchase and sale transaction before the fire.

Conclusion

The judge's findings raise issues both of law and of fact, none of which can be resolved without remand to the motion judge for further findings. The issue of law is that the judge, after finding that the interests of the buyer and seller in this purchase and sale transaction were "antagonistic" to each other, stated that "in a transaction of this complexity, it seems  impossible that a single attorney could represent both sides in a very complex and sophisticated real estate transaction." It is not clear from the record precisely what the judge meant by this statement, especially where the judge found that Levin represented both the trust defendants and the Masons after the fire, when their interests remained adverse.

It is not ethically impossible for an attorney to represent clients with adverse interests.

...Where we cannot be sure what the motion judge meant by his finding that it seems "impossible" for Levin, who was already representing the Masons with respect to the sale of its property, also to represent the trust defendants with respect to that transaction, we believe it prudent to remand the matter to the judge for clarifying findings on this issue.

And

Importantly, the judge did not address the undisputed fact that Levin billed both the Masons and the trust defendants for his legal work regarding this transaction, splitting his fee equally between them. Where, as here, an attorney bills an existing client for legal services, and where the client pays for those services, it is reasonable to infer that they had an attorney-client relationship with regard to those services.

The court also noted that an attorney-client relationship can be implied. (Mike Frisch)