Monday, May 13, 2024

But Her Email

A summary of a decision issued today by the New Jersey Appellate Court

This appeal presents a novel issue requiring the court to determine whether the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, or the common law right of public access, mandates disclosure of an attorney's identity when the attorney renders legal advice to a colleague or friend about an ongoing prosecution.  In the present matter, a municipal prosecutor sought counsel from an attorney who, in turn, rendered advice via email to the prosecutor's personal account.  The prosecutor, in turn, disclosed the contents of the email in open court and provided a printed copy of the email to the defense, but redacted the sender's name and email address.  The municipality thereafter denied a government records request for the unredacted email.

 Plaintiff Association for Governmental Responsibility, Ethics, and Transparency (AGREAT) appeals from the March 3, 2023 Law Division order denying its order to show cause to compel production of the email requested from defendants Borough of Mantoloking, its clerk, and its custodian of records.  The motion judge concluded the email did not fall within OPRA's definition of a government record.  The court affirms the order under review and further holds the email is not subject to disclosure under the common law.  The court also concludes, even if the email were a government record, the work product privilege and confidentiality exemptions under N.J.S.A. 47:1A-9(b) weigh against disclosure.

Smith, J.A.D., filed a dissenting opinion, concluding:  the redacted email was a public record under OPRA; the redacted email was privileged pursuant to the work-product privilege, but an attorney waived that privilege in court; a balancing of the public's access to government records with the email sender's reasonable expectation of privacy under Doe v. Poritz, 142 N.J. 1 (1995), justifies disclosure of the name and email address of the sender.

Facts

This appeal has its genesis in a quasi-criminal municipal court action against Donald F. Burke, Sr., counsel for AGREAT in the present matter. To give context to the issues raised on appeal, we summarize the nature of those proceedings from our prior decision reversing the Law Division's interlocutory discovery order and remanding the matter to the municipal court. See State v. Burke, No. A-0503-22 (App. Div. July 19, 2023) (slip op. at 1-19).

In October 2020, Jakob Weingroff filed a citizen's complaint in Mantoloking Municipal Court alleging Burke had committed various traffic infractions during their verbal altercation the prior month. Id. at 2. The complainant and defendant were not strangers; the bad blood between them emanated from "an ongoing property dispute" involving the men and their family members. Ibid.

At the time of the incident, Weingroff had resigned from his employment as a New Jersey State Police (NJSP) trooper. Id. at 3 n.1. Previously charged criminally with fourth-degree falsifying or tampering with records, N.J.S.A. 2C:21-4, and administratively with misconduct regarding the same unspecified incident, Weingroff was admitted into the pretrial intervention (PTI) program in 2018, and voluntarily forfeited his employment with the NJSP. Ibid.

Elizabeth Leahey was appointed as prosecutor due to the conflict.

...the potential for harm regarding further nonconsensual disclosures is substantial. In our view, compelling disclosure of the name and email address of attorneys who render advice to one another has the potential for a chilling effect on the collegiate relationship among attorneys and their private communications concerning their shared legal advice (factor three). Additionally, although defendants did not articulate specific injury that would result to the relationship between Leahey and the sender if his name and address were disclosed – and defendants bear the burden of proof – it is clear from Leahey's certification that the sender was a colleague and friend, whose name and address she redacted before providing the November 17 email to Burke (factor five). Finally, because Leahey redacted the sender's name and address, there exists no other means to provide the requested record without disclosing personal information (factor six).

Majority

We are cognizant that the circumstances presented in this appeal are unique – an OPRA request limited to the name and email address of an attorney by the attorney for the requestor, who also is the defendant in the underlying quasi-criminal action and who perceives the contents of the disclosed communication as a threat to quell his interrogation of a witness in that matter. We take no position on AGREAT's contention that the November 17 was threatening in nature or – as our dissent colleague suggests – that the municipal prosecutor was improperly influenced by her colleague's advice. We simply conclude the disclosure under OPRA or the common law right of access should not be used as a sword to access shielded information.

SMITH, J.A.D., dissenting.

I submit that the public has a right to know if, and when, the prosecution of one of our citizens has been improperly influenced. Based on this principle, I respectfully disagree with the majority. I would find that the disputed email sent to the municipal prosecutor is a government record under OPRA and would not reach the common law right of access analysis. I would also hold, on these unique facts, that while the email's sender has a reasonable expectation of privacy, a Doe analysis warrants disclosure of the full, unredacted email, including the name and email address of the sender.

(Mike Frisch)

May 13, 2024 in Privilege | Permalink | Comments (0)

Thursday, February 22, 2024

Threats And Privilege At Issue In En Banc Argument

The District of Columbia Court of Appeals will hear argument en banc of a panel decision on February 29.

The panel had reversed a conviction because the defendant's attorney had testified about threats made by his client.

Attorney John Harvey was appointed by the trial court to represent Brian Moore in a contempt proceeding after Mr. Moore allegedly violated 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).

Senior Judge Thompson had dissented.

From appellant's brief

In the grand jury proceeding, Harvey testified that the bench trial (Honorable Judith Smith, Associate Judge) in 2017-CCC-000057 started February 21, 2018, then was carried over to April 12, 2018. (Apx. 88-89) On April 12, 2018, Moore allegedly became agitated about Guest and with Harvey. According to Harvey, Moore said “I can’t stand this bitch. I hate this bitch. Fuck this bitch.” Harvey defended Guest as a prosecutor just doing her job. Moore said “What, are you trying to have sex with her or something?” Harvey repeated that Guest was just doing her job. Moore said, “She keep fucking with me I’m going to shoot this bitch. I’ll fuck this bitch up.” (Apx. 91) Moore added, “Yeah, Harvey. I will fuck this bitch up. I will shoot her ass.” Harvey testified that Moore said he had “guns and this and that. He started talking this nonsense.” (91) Harvey testified that he told Moore he was taking Moore seriously. Moore said, “You goddamn right I’m serious.” (91)

Harvey testified that he then called Bar Counsel and afterward asked Judge Smith to allow him to withdraw from the case. Judge Smith would not allow Harvey to withdraw unless he revealed Moore’s statements, which Harvey declined to do at that point. (Apx. 92-93) Harvey testified that he called Bar Counsel again about his options, but Moore approached Harvey and told him “Man I was just bullshitting. So, you know, let’s just leave it alone. Let’s just go on for the trial.” (93) Harvey told Moore that if Moore ever did anything like that again, he would believe Moore and disclose it to the court. (93)

The trial was continued

On the late afternoon of Friday, June 29, 2018, the trial court ordered Moore to have an ankle GPS monitor but it was too late to accomplish that day so Moore would have to return to court on Monday, July 2. (Apx. 95) Harvey and Moore spoke in the hallway. Harvey described Moore as “out of control” and testified that Moore said “Harvey, I’m telling you right now, if I lose my job I’m going to bust a cap in that bitch [Guest].” (100) Moore continued, “Fuck that bitch. Fuck that bitch. I’m going to shoot that bitch.” (96) Harvey said “Man, what did I tell you about you making that kind of comment to me?” (96) Moore responded, “Fuck that bitch and fuck you, Harvey. I will fucking kill that bitch.” (96) Harvey responded with comparably coarse language. (100-1). Harvey told Moore that he was going to tell the judge, and according to Harvey, Moore said “Fuck that. Let’s go in there right now.” (101)

Harvey then went into the courtroom and approached the bench [and disclosed the threat].

Briefs 

Should be interesting. (Mike Frisch)

February 22, 2024 in Privilege | Permalink | Comments (0)

Thursday, January 4, 2024

Inadvertent Disclosure Waived Privilege

The Tennessee Court of Appeals affirmed a trial court finding that the inadvertent disclosure of an email waived attorney client privilege in a contract/ covenant not to compete matter

Defense counsel also inadvertently included an email from [his client] Patrick, dated March 22, 2020, in which Patrick informed defense counsel of the actions he and Carlos had taken since leaving Masquerade, specifically the establishment of a new website independent of Masquerade. The brief, along with the attached email, were served on counsel and filed with the court twice.

Patrick alerted defense counsel to the error on July 30, 2020, and defense counsel orally moved to exclude the email the next day on July 31. Defendants then filed a written motion in limine to exclude the email on August 4, requesting an order preventing Plaintiff from “utilizing, relying on or in any way utilizing that certain email sent from Patrick Horne” to defense counsel. Defendants argued that the email was a disclosure from a client to his attorney that was inadvertently attached to two separate briefs, neither of which involved the subject matter of the email. Defendants later filed a motion to strike the inadvertently included email from the record.

As Samuel Jackson might say, allow plaintiffs to retort

Plaintiff responded in opposition to the motion in limine, arguing that the disclosure of the email waived the attorney-client privilege inherent in such a communication. Plaintiff argued that (1) Defendants offered no evidence of any precautions taken to prevent the disclosure of such a communication; (2) that the email was served upon opposing counsel twice and filed with the court twice; (3) that Defendants moved to exclude the email 36 days after the initial disclosure; and (4) that it has relied upon the email and spent countless hours examining the evidence and preparing for the hearing. Plaintiff explained that Defendants were even questioned about the email in depositions without objection and that the email had also been discussed with the court in telephone hearings without objection prior to July 31.

Further

On August 17, 2020, Plaintiff filed a motion to disqualify defense counsel and for discovery sanctions, arguing that counsel had repeatedly violated the Tennessee Rules of Professional Conduct by “offering, using, and affirming” the validity of evidence he knew was false as evidenced by the contents of the aforementioned email. Plaintiff asserted that the facts contained in the email directly contradicted Defendants’ responses to requests for admission; deposition and court testimony provided by Carlos; and deposition testimony provided by Patrick.

The court here

we find no abuse of discretion in the trial court’s ultimate holding that the inadvertent production of the email operated as a waiver of the attorney-client privilege and that the email is now admissible.

But the waiver extends no further

We likewise decline the opportunity to provide such a determination in this case when the record cannot be read to support a finding that Defendants voluntarily or selectively disclosed otherwise protected information. Rather, defense counsel inadvertently disclosed one crucial communication that counsel was then forced to defend in response to a barrage of allegations filed by Plaintiff. Defense counsel could not defend against such allegations without citing the email that had already been read by all parties. Any citation to the inadvertently disclosed communication was also made in accordance with Rule 1.6(b)(5) of the Tennessee Rules of Professional Conduct.  With all of the above considerations in mind, we find no abuse of discretion in the trial court’s limiting the scope of the waiver to the production of the email.

(Mike Frisch)

January 4, 2024 in Privilege | Permalink | Comments (0)

Thursday, December 21, 2023

Presumptively Confidential

The Oregon Supreme Court has issued a preemptory writ in a matter involving the confidentiality of stored email communications

This mandamus proceeding requires us to decide two issues: (1) whether email messages between a client and their attorney, sent from, and stored on, the client’s employer’s email system are “confidential communications” as defined in OEC 503(1)(b); and (2) if they are, whether an employee’s act of leaving employment and, in turn, leaving those email messages on the employer’s email system constitutes a disclosure of communications and a waiver of the attorney-client privilege under OEC 511. As to the first issue regarding confidentiality under OEC 503(1)(b), based on the text, context, and legislative history, we conclude that communications between a client and an attorney, made for the purpose of facilitating the rendition of professional legal services to the client, are presumptively confidential. The client’s mere use of an employer’s email system, without more, does not overcome that presumption of confidentiality. As to the second issue concerning waiver of privilege under OEC 511, we hold that, at least on this record, leaving the emails on the employers’ systems did not establish actual disclosure of communications - a necessary predicate to an OEC 511 waiver analysis. Although we do not foreclose the possibility that a party could make an evidentiary record demonstrating a lack of privilege under OEC 503(1)(b), or that such privilege had been waived through actual disclo-sure under OEC 511, for email communications sent from and stored on an employer’s server, the record here is insuf-ficient. Accordingly, a peremptory writ shall issue.
 
Holding
 
we conclude that any email messages on Mr. Gollersrud’s former employers’ servers containing communications between relators and their attorneys are confidential communications as defined in OEC 503(1)(b) and are therefore protected under OEC 503, the attorney-client privilege. On this record, the confidentiality of those communications has not been overcome by a showing by LPMC. Similarly, this record is legally insufficient to estab-lish an express or implied disclosure to a third party, as required under OEC 511.
 
(Mike Frisch)

December 21, 2023 in Privilege | Permalink | Comments (0)

Tuesday, December 19, 2023

Parole Evidence

The New York Court of Appeals sustained a claim of attorney-client privilege in response to a document demand to the Department of Corrections

On this appeal we must determine whether the Department of Corrections and Community Supervision (DOCCS) properly withheld 11 documents prepared by counsel for the Board of Parole as privileged communications exempt from Freedom of Information Law (FOIL) disclosure. Counsel prepared the documents to train and advise Board of Parole commissioners on how to comply with their legal duties and obligations.

Privilege applies

DOCCS submitted an affirmation in support of its invocation of the privilege from counsel to the Board who asserted that counsel prepared the documents as legal advice. It is clear from the documents’ content and the context in which they were prepared and presented—i.e. for training and advising commissioners on how to dispatch their duties and obligations in deciding parole applications—that these documents are privileged communications from counsel to client. The documents contain counsel’s advice regarding compliance with legal requirements concerning parole interviews and parole determinations, including as applied to persons designated as minor offenders. The documents summarize recent court decisions and advise on how to apply statutes, regulations, and case law to parole determinations. The documents also include guidance on drafting parole decisions that accord with the law. In sum, the documents reflect counsel’s legal analysis of statutory, regulatory and decisional law, and provide guidance for the commissioners on how to exercise their discretionary authority (Rossi, 73 NY2d at 593). Therefore, the documents are privileged and fall squarely within the exemption under Section 87 (2) (a).

We are unpersuaded by Appellate Advocates’ myriad arguments that disclosure is required under FOIL. Appellate Advocates contends that the privilege applies only to communications responding to an existing “real world factual situation”. However, this view of attorney-client privilege undermines its purpose of fostering candid communication between lawyer and client (see Spectrum, 78 NY2d at 378-379; Rossi, 73 NY2d at 591-592). We have never endorsed petitioner’s position that the privilege protects only those communications made in anticipation of litigation or an exchange of confidential information during a pending action. The reason is obvious given the advisory role served by an attorney. Counsel often provides legal advice to assist the client in deciding how best to order their affairs in compliance with legal mandates, including what action, if any, to take in order to avoid litigation. Encouraging proactive compliance with the law has patent benefits.

Nor is Appellate Advocates correct that the privilege is limited to communications by counsel triggered by a client’s disclosure of confidential information or a direct request for advice. The privilege attaches so long as the communication is “made for the purpose of facilitating the rendition of legal advice or services in the course of a professional relationship” (Rossi, 73 NY2d at 593). It is in furtherance of that professional relationship that counsel may bring to the client’s attention legal matters concerning statutory  regulatory and decisional law, without the client initiating contact or positing a specific question. In so doing, counsel relies on their professional judgment, experience, skill, and knowledge of the law to assess the client’s potential needs and possible risk exposure. This is the type of legal assistance and evaluation that a client may consider when ordering their affairs.

(Mike Frisch)

December 19, 2023 in Privilege | Permalink | Comments (0)

Tuesday, November 14, 2023

Arent Outfoxed: Work Product Is Client Property

UPDATE: The opinion no longer appears on the court's web page and a click on the link says that the document has not been made public. 

The United States District Court for the District of Columbia (Judge Friedrich) denied a non-party law firm's sanctions motion

Before the Court is non-party ArentFox Schiff LLP’s Motion for a Protective Order and Sanctions. Dkt. 226. For the following reasons, the Court will deny the motion.

Arent Fox is a law firm. Until August 2023, it represented Joseph Allaham in litigation against Broidy Capital Management, LLC and Elliott Broidy (collectively, “Broidy”). See Dkt. 25. Broidy and Allaham settled in August 2023. Dkt. 195. In parallel with the settlement, and without Arent Fox’s consent, Allaham provided much of his correspondence with Arent Fox to Broidy. See, e.g., Dkts. 215-2 (proposed changes to interrogatory responses); 215-3 (discussion of case strategy). Broidy continues to litigate against Allaham’s former codefendants.

Arent Fox, now lawyering without a client, contends that Allaham gave away materials protected by the work-product privilege. It moves for “an order (1) directing [Broidy] to . . . promptly return or destroy all work product of Arent Fox [in his possession] as well as any material that references or is derived from that work product . . . and (2) sanctioning [Broidy] for improperly reviewing and using Arent Fox’s work product.” Dkt. 226 at 1.

The Court finds that Allaham validly waived any privilege held by Arent Fox and will therefore deny the motion. “The work product privilege . . . exempts from discovery documents prepared by an attorney in contemplation of litigation.” Moody v. IRS, 654 F.2d 795, 798 (D.C. Cir. 1981); see Fed. R. Civ. P. 26(b)(3). “[L]ike other [similar] privileges, it may be waived.” United States v. Nobles, 422 U.S. 225, 239 (1975).

In general, “a lawyer may invoke” the work product privilege “on the basis of the lawyer’s independent interest in privacy.” Restatement (Third) of the Law Governing Lawyers § 90 cmt. c (Am. L. Inst. 2000). But “[w]hen lawyer and client have conflicting wishes or interests with respect to work-product material, the lawyer must follow [the] instruction of the client” and may not assert immunity on her own. Id. After all, an attorney cannot “withhold the fruits of his professional labors from the client, who presumably paid for and was the intended beneficiary of those labors.” Martin v. Valley Nat’l Bank of Ariz., 140 F.R.D. 291, 320 (S.D.N.Y. 1991); cf. In re Sealed Case, 676 F.2d 793, 810 n.56 (D.C. Cir. 1982) (“Courts have often recognized that the interests of attorneys and those of their clients may not always be the same. To the extent that the interests do not conflict, attorneys should be entitled to claim privilege even if their clients have relinquished their claims.”) (emphasis added).

These principles doom Arent Fox’s assertion of privilege and thus its motion for a protective order and sanctions. Allaham voluntarily provided his correspondence to Broidy, presumably to facilitate his dismissal from this litigation. By handing the documents over to his former adversary, he waived any privilege he might hold in them. See United States v. Deloitte LLP, 610 F.3d 129, 139–40 (D.C. Cir. 2010). And while Arent Fox may disagree with Allaham’s choice to disclose the documents, its “conflicting wishes” cannot stand in his way. Restatement (Third) of the Law Governing Lawyers § 90 cmt. c. It follows that Arent Fox’s assertion of privilege is meritless and that its motion, which relies on its privilege assertion, must fail.

Arent Fox contends that “attorneys have an independent right to protect their own work product.” Arent Fox’s Mot. at 5. Even so, an attorney cannot protect his work product at his client’s expense. The cases Arent Fox cites do not say otherwise, as “none involved an invocation of the [work product] rule against the client or against the client’s stated wishes and interests.” Martin, 140 F.R.D. at 321. In Hobley v. Burge, for instance, the Seventh Circuit allowed a law firm to claim work product privilege when the claim was “not inconsistent with [its client’s] interests in [the] litigation.” 433 F.3d 946, 949 (7th Cir. 2006). And in In re Grand Jury Proceedings, the Fifth Circuit held that a client’s alleged crimes did not abrogate his innocent attorney’s privileges. 43 F.3d 966, 972 (5th Cir. 1994) (per curiam); see also QBE Ins. Co. v. Griffin, No. 08-cv-949, 2009 WL 2913478, *2–3 (M.D. Ala. Sept. 4, 2009) (declining to find that former client’s failure to object to discovery request in subsequent litigation forfeited attorney’s work-product privilege); Krys v. Paul, Weiss, Rifkind, Wharton, & Garrison LLP (In re China Med. Techs., Inc.), 539 B.R. 643, 658 (S.D.N.Y. 2015) (declining to find that foreign liquidator could waive privilege on behalf of formerly solvent entity’s Audit Committee)

So too, the fact that Allaham is no longer a party in this case does not diminish his interest in disclosing Arent Fox’s work product to Broidy. Cf. Arent Fox’s Mot. at 5–6; FTC v. Grolier, 462 U.S. 19, 25 (1983) (holding that work-product privilege applies even after litigation has terminated). Allaham acquired his documents while a defendant in this litigation. Indeed, handing the documents over to Broidy may well have facilitated his departure from it. Against that backdrop, it is obvious that Allaham has a legitimate interest in conveying his documents to Broidy—one that Arent Fox, Allaham’s fiduciary, must honor. See Restatement (Third) of the Law Governing Lawyers § 21(2) & cmt. d.

Finally, in passing, Arent Fox contends that Allaham disclosed “communications covered by a joint-defense agreement among” his former codefendants. Arent Fox’s Mot. at 5; see Arent Fox’s Reply at 1. But if that is so, Allaham has victimized his now-former codefendants, not his own lawyers. “Ordinarily, a party must assert its own legal rights and cannot rest its claim to relief on the legal rights of third parties.” Metro. Wash. Chapter, Assoc. Builders & Contractors, Inc. v. District of Columbia, 62 F.4th 567, 573 (D.C. Cir. 2023) (cleaned up). Even if a joint defense agreement made Allaham’s disclosure of Arent Fox’s work product improper, Arent Fox’s sanctions motion is not the appropriate vehicle for such a claim.

For these reasons, Arent Fox’s motion for a protective order and sanctions, Dkt. 226, is denied. Because the motion—while not meritorious—was not frivolous, Broidy’s cross-motion for sanctions, Dkt. 231 at 7, is also denied. A separate order consistent with this decision will accompany this memorandum opinion.

(Mike Frisch)

November 14, 2023 in Privilege | Permalink | Comments (0)

Saturday, October 21, 2023

Crime- Fraud Exception

The Indiana Court of Appeals affirmed a conviction, rejecting the contention of the criminal defendant that admission of her former attorney's testimony violated the attorney-client privilege

Here, Brook’s communications with Achey were not privileged because they were made for the purpose of perpetrating a fraud on the State and trial court and for the purpose of committing the crime of obstruction of justice. Achey’s trial testimony revealed that Brook provided him with a copy of a receipt indicating that she had been prescribed Lorazepam by Dr. Kochert and that a prescription for Lorazepam had been filled at a Pay Less Pharmacy in Lafayette. Tr. Vol. 2 p. 118. Brook also told Achey that she did not carry the pills in their original pill bottle to work because she was nervous the pills would be stolen. Id. After Dr. Kochert was deposed and testified that she had never prescribed Lorazepam to Brook, Brook became “very apologetic” and admitted to Achey that she did not have a valid prescription for Lorazepam and that the document she had presented to him had been created either by herself or another individual. Id. at 125–26. This evidence provided a reasonable basis upon which a prudent person could have suspected that Brook was attempting to commit a fraud on the court system and was committing the crime of obstruction of justice. See Lahr, 731 N.E.2d at 483. Further, the State demonstrated a relationship between the communications and the attempted fraud because, in providing the fraudulent prescription record to Achey, Brook intended to use him to attempt to obtain dismissal of the unlawful possession or use of a legend drug charge against her. We, therefore, find that both parts of the test from Lahr were met in this case.

Brook asserts that the attorney-client privilege could give way only if Achey was involved in the perpetration of her fraud. Brook reads Lahr as only allowing the admission of attorney-client communications when they were made for the purpose of committing or continuing a crime or fraud. And therefore, because the trial court found “no indication [Achey] did anything wrong,” it was an error for the trial court to allow the statements to be admitted. Supp. Tr. Vol. 2
p. 24. However, in Lahr, the defendant forged two letters for the purpose of bolstering his self-defense argument and enlisted the aid of his attorney in furtherance of a continuing crime or fraud, and this court held that the “information concerning this subterfuge is not protected by the attorney-client privilege.” Lahr, 731 N.E.2d at 484. Both here, and in Lahr, the client used the attorney, by presenting the forged or false documents as evidence in a criminal proceeding, to perpetuate the crime or fraud. Lahr did not limit admission of attorney-client communications to only situations where the attorney had culpability for the perpetration of the crime. Therefore, we conclude that Brook’s communications to Achey fell within the crime-fraud exception to the attorney-client privilege, and the trial court did not abuse its discretion when it admitted them into evidence.

(Mike Frisch)

October 21, 2023 in Privilege | Permalink | Comments (0)

Thursday, October 19, 2023

Breach-Of-Duty Exception Explored In Oregon Opinion

The Oregon Supreme Court issued a peremptory writ of mandamus in a matter involving attorney-client privilege

An exception to the attorney-client privilege applies to communications that are “relevant to an issue of breach of duty” between an attorney and client. OEC 503(4)(c). This mandamus proceeding requires us to define one boundary of that breach-of-duty exception: whether the exception applies only to communications between the parties directly involved in the alleged breach—that is, communications between the client and the allegedly breaching attorney (or, alternatively, communications between the attorney and the allegedly breaching client). Based on the text, context, and legislative history of OEC 503(4)(c), we conclude that the breach-of-duty exception applies only to communications between the parties directly involved in the alleged breach. The trial court therefore erred when it applied the breach-of-duty exception to communications beyond that scope.

The case

The matter underlying this mandamus proceeding is a legal malpractice action brought by Hill against his former attorney, Johnson, who had represented Hill in a marriage dissolution proceeding. Hill alleges that, at the conclusion of his dissolution proceeding, Johnson signed a stipulated supplemental judgment on his behalf without his knowledge or permission. According to Hill, the stipulated supplemental judgment provided Hill’s ex-wife certain proceeds out of his pension plan that exceeded the amount to which he had previously agreed.
 
Hill alleges that, months later, when he learned that the stipulated supplemental judgment included the disputed pension proceeds, he asked Johnson to correct it. When that was not done to Hill’s satisfaction, he hired new trial counsel, Fowler, to repair Johnson’s alleged error. Fowler moved the trial court to invalidate the supplemental judgment. The trial court denied that motion. Hill then hired appellate counsel, Daniels, to repair Johnson’s alleged error by challenging the trial court’s order on appeal.
 
Holding
 
we agree with Hill that the breach-of-duty exception, codified in OEC 503(4)(c), applies only to communications between the client and the attorney who are directly involved in the alleged breach. In this case, where Hill has alleged that Johnson breached a duty of care owed to him, the breach-of-duty exception applies only to communications between Hill and Johnson. As a result, the trial court erred in applying the breach-of-duty exception to communications that Hill had with counsel other than Johnson responsive to RFP 10, RFP 26, and RFP 45.
 
(Mike Frisch)

October 19, 2023 in Privilege | Permalink | Comments (0)

Tuesday, June 20, 2023

When An Unlikely Event Occurs

The North Carolina Supreme Court found a waiver of attorney-client privilege in a joint representation

During a joint conference call with counsel, one of the defendants, Nicholas Hurysh, secretly recorded the conversation. After a falling out among the codefendants, Hurysh sought to waive the attorney–client privilege and disclose the contents of the call.

IOMAXIS moved for a protective order, arguing that the call was to discuss corporate matters. IOMAXIS further argued that counsel on the call (who also was IOMAXIS’s counsel for general corporate matters) was providing advice to the individual defendants solely in their roles as agents of the company.

The trial court rejected this argument and ruled that Hurysh held the privilege individually and could waive it. As explained below, we affirm. The trial court made a fact finding that counsel was not acting as corporate counsel but instead as joint defense counsel for all the defendants, including Hurysh, under a written joint defense agreement. That finding is supported by at least some competent evidence in the record and thus is binding on appeal.

Based on that finding, the trial court properly determined that Hurysh jointly held the attorney–client privilege with respect to the secretly recorded call and “therefore may opt to waive the privilege if he so desires.”

Facts

This case concerns a corporate entity known as IOMAXIS, LLC. In 2017, the founder and majority owner of IOMAXIS passed away. A dispute later arose between the trust formed by his estate, whose trustees are the plaintiffs in this action, and the remaining members of IOMAXIS, who are defendants in this action.

During this time period, the law firm Holland & Knight, LLP represented IOMAXIS in connection with “general corporate matters” under a standard corporate engagement letter. This engagement letter was solely between Holland & Knight and IOMAXIS and did not involve representation of the individual members of IOMAXIS.

After plaintiff filed suit in North Carolina

In July 2018, Holland & Knight executed a second engagement letter, this one covering the “dispute” with plaintiffs and the lawsuit “in state court in North Carolina.” This second engagement letter stated that Holland & Knight would jointly represent IOMAXIS and its individual corporate members, all of whom were named defendants in this litigation. The letter emphasized that “there will be no way in this joint representation for you to pursue your individual interests through your common attorney.” A different Holland & Knight attorney, Phillip Evans, signed this second engagement letter.

There is nothing in the second engagement letter, or anywhere else in the record, indicating that Holland & Knight created any separation within the firm between attorneys handling the corporate matters and attorneys handling the litigation matters.

The second engagement letter also addressed potential implications of the joint representation. The letter stated that “as a necessary consequence of this joint representation, all information you share with [Holland & Knight] in this joint representation will be shared among each other.” It continued, “[I]n the unlikely event of a disagreement among you, the attorney–client privilege will not protect the information you share with us."

Thereafter a zoom call was recorded

the trial court found that Hurysh was represented by Holland & Knight in this litigation under the terms of an express engagement letter. That engagement letter stated that Holland & Knight jointly represented Hurysh, his fellow corporate members, and IOMAXIS and that “there will be no way in this jointrepresentation for you to pursue your individual interests through your common attorney.” The engagement letter further stated that “in the unlikely event of a disagreement among you, the attorney–client privilege will not protect the information you share with us.”

Words to the wise

Most obviously, counsel can choose not to jointly represent both the corporation and the individual directors, officers, or employees as counsel did in this case through the litigation engagement letter. But even when counsel chooses to do so, there are ways to avoid the factual confusion that arose here. For example, an engagement letter can identify the particular attorneys within the firm who are handling a joint litigation defense and separately identify the corporate attorneys who are handling the general legal affairs of the company. The letter can then inform the jointly represented parties that any legal advice from the corporate attorneys is solely for the company, not the individuals.

Similarly, a corporate attorney speaking to officers or employees of the company can offer a clear disclaimer of representation, emphasizing that counsel represents the corporation for purposes of the discussion; that the communications are covered by an attorney–client privilege held solely by the company; and that the participants must consult their own counsel if they seek personal legal advice about the subject matter.

None of this took place here, thus creating a factual dispute about the scope of Holland & Knight’s representation on the July 22 call. The trial court resolved that factual dispute by making findings in favor of Hurysh. Those findings are supported by competent evidence, and the trial court’s resulting determination that Hurysh held the attorney–client privilege was well within the trial court’s sound discretion. We therefore affirm the trial court’s order.

(Mike Frisch)

June 20, 2023 in Privilege | Permalink | Comments (0)

Thursday, March 9, 2023

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)

March 9, 2023 in Privilege | Permalink | Comments (0)

Wednesday, January 25, 2023

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)

January 25, 2023 in Privilege | Permalink | Comments (0)

Tuesday, December 13, 2022

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)

December 13, 2022 in Privilege | Permalink | Comments (0)

Thursday, November 17, 2022

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)

November 17, 2022 in Privilege | Permalink | Comments (0)

Tuesday, June 21, 2022

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)

June 21, 2022 in Privilege | Permalink | Comments (0)

Tuesday, May 10, 2022

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)

May 10, 2022 in Privilege | Permalink | Comments (0)

Monday, May 9, 2022

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)

May 9, 2022 in Privilege | Permalink | Comments (0)

Wednesday, December 15, 2021

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)

December 15, 2021 in Privilege | Permalink | Comments (0)

Wednesday, March 24, 2021

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)

March 24, 2021 in Privilege | Permalink | Comments (0)

Thursday, October 29, 2020

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.

October 29, 2020 in Privilege | Permalink | Comments (0)

Thursday, August 13, 2020

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)

August 13, 2020 in Privilege | Permalink | Comments (0)