Legal Profession Blog

Audio Recordings Are Work Product And Not Discoverable

Recorded interviews created by defense counsel in a criminal case are work product and are not subject to disclosure to the prosecution, according to a decision of the Utah Supreme Court reversing a trial court order

In 2021, Derek Willden was charged with several counts of physical and sexual assault. While preparing for Willden’s trial, the State asked the district court to order Willden to disclose certain information pursuant to Utah Rule of Criminal Procedure 16(b). One category of items that the State sought—audio recordings of interviews that Willden’s counsel had conducted with witnesses—is relevant to this appeal.

Work product trumps discovery rule

Given our interpretation of rule 16, the determination that the interview recordings are work product resolves this appeal. Because these witness recordings are attorney work product, they are protected by rule 16(b)(4). And because rule 16(b)(4)’s protection of work product trumps the discovery obligations that may be created by the other subparagraphs of rule 16(b), the district court erred by ordering Willden to disclose the recordings under rule 16(b)(1). Accordingly, we reverse the district court’s discovery order and remand this case for further proceedings.

Concurrance by Justice Hagen

Anyone wishing to propose a potential rule change may petition this court to refer the matter to our Advisory Committee on the Rules of Criminal Procedure or may contact the committee directly. That committee consists of members appointed by this court to represent a cross-section of interests and is charged with studying proposed rule changes, gathering input from various stakeholders, considering public comment, and making recommendations to this court. That is the appropriate forum in which interested parties can advance policy arguments for and against adopting a “reverse Jencks” requirement. And that process will enable this court to make the most informed decision as to whether an amendment to rule 16(b) is warranted.

Internal Reports Discoverable If Review Not Independent

The New Jersey Supreme Court has held that statutory compliance is required to sustain a privilege with respect to internal reviews of medical care

In this consolidated appeal, the Court considers whether internal reports and documents created after alleged adverse events occurred at the defendant nursing and assisted living facilities are discoverable or are instead privileged under the New Jersey Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to -12.25.

Held

The only precondition to applying “the PSA’s privilege is whether the hospital performed its self-critical analysis in procedural compliance with N.J.S.A. 26:2H-12.25(b) and its implementing regulations.” Brugaletta v. Garcia, 234 N.J. 225, 247 (2018). One of those regulations requires that a facility’s patient safety committee operate independently from any other committee within the facility. See N.J.A.C. 8:43E-10.4(c)(4). The facilities in these consolidated appeals did not comply with that procedural requirement, and the disputed documents are therefore not privileged.

(Mike Frisch)

Pillow Talk At Fox Privileged

The New York Appellate Division for the First Judicial Department sustained a claim of marital privilege in the Smartmatic v. Fox Corporation & Giuliani litigation

This appeal concerns defendants’ inadvertent production of certain text messages between Fox television host Jesse Watters and his wife, Emma Watters, who are not named defendants in this action. Defendants contend that while engaging in discovery, they inadvertently produced eight documents that were subject to New York’s marital privilege under CPLR 4502(b), including the text messages. Defendants demanded that plaintiff destroy these documents. Plaintiffs agreed to destroy two of the eight documents, but maintained that the text messages were not protected by the spousal privilege because they were nonconfidential, business-related communications that had been relayed on a device issued by defendants Fox Corporation and Fox News Network LLC, and that Mr. Watters could not have reasonably expected that they would remain private.

Supreme Court did not abuse its discretion in determining that the text messages were protected by the spousal privilege (see e.g. Abe v New York Univ., 139 AD3d 416, 416 [1st Dept 2016]). “A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage” (CPLR 4502[b]; see also Matter of Vanderbilt [Rosner-Hickey], 57 NY2d 66, 73 [1982]). While not all spousal communications are privileged, “confidential” communications “induced by the marital relation and prompted by the affection, confidence and loyalty engendered” by the relationship clearly are (see Matter of Vanderbilt, 57 NY2d at 73; see also Poppe v Poppe, 3 NY2d 312, 315 [1957]). In making this determination, spousal communications are “presumed to have been conducted under the mantle of confidentiality,” and the burden is on the party seeking to overcome the privilege to demonstrate that the communications were not made in confidence (People v Fields, 38 AD2d 231, 233 [1st Dept 1972], affd 31 NY2d 713 [1972]).

Supreme Court providently found that plaintiffs did not meet this burden. A review of the text messages reveals that they were confidential communications between spouses, induced by the marital relationship, that would not have been relayed to outsiders voluntarily. Nor is there a legal or practical basis for finding that one spouse’s discussion of what was happening at work would automatically destroy the spousal privilege. Indeed, many “conversations about business matters [are] only had because of the husband-wife relationship” (Atlantic Richfield C0. v Triad Petroleum, Inc., 113 FRD 686, 687-688 [SD NY 1987])

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)

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 

• Appellant's Brief 19-CF-687.pdf707.55 KB
• Appellee's Brief 19-CF-687.pdf707.47 KB
• Amicus Curiae PDS Brief 19-CF-687.pdf645.63 KB
• Amicus Curiae DC Brief 19-CF-687.pdf794.6 KB
• Appellant's Reply Brief 19-CF-687.pdf549.52 KB
• Amicus Curiae PDS Reply Brief 19-CF-687.pdf727.64 KB

Should be interesting. (Mike Frisch)

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)

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)

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)

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)

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)

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)

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)

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)