Wednesday, December 9, 2015

No Threats Exception

The Minnesota Supreme Court has held

This case requires us to determine whether the therapist-client privilege, which prohibits therapists from disclosing information or opinions in court that they acquired from their clients in a professional capacity, contains an exception for threatening statements. The district court concluded that the privilege does not apply to "statements of imminent threat of harm." The court of appeals reversed, holding that the statute codifying the privilege, Minn. Stat. § 595.02, subd. 1(g) (2014), does not contain an exception for threats. We agree with the court of appeals that the statute does not contain a "threats exception," but disagree that the privilege extends to third parties.

The story

 As a condition of his probation for a prior conviction, respondent Jerry Expose, Jr. was required to attend anger-management therapy sessions with N.M., a mental-health practitioner. During one session, Expose became upset and made a threatening statement about D.P., a caseworker assigned to an ongoing child-protection case involving Expose’s children. Expose said that D.P. had told him recently that his continued noncompliance with a requirement of his case plan would delay the commencement of unsupervised visits with his children. Expose then became visibly angry and said that

he felt that [D.P.] was a barrier to him getting his kids back and if court—his future court date did not go the right way that he would break her back, and then if he could not get to her he would call—he’d just have to make a couple phone calls and he can have someone else do it if he couldn’t get to her.

N.M. responded to the threatening statement by informing Expose that she was a mandated reporter, to which he replied, "I don’t give a f--k." N.M. then "proceeded to help him de-escalate and calm down," but Expose made additional statements about D.P., including that "[e]verybody has to go to their car at some point."

Based on her training, N.M. determined that Expose’s statements were not idle threats. Instead, she concluded that Expose had made specific threats of physical violence against an identifiable person that triggered her statutory duty to warn. See Minn. Stat. § 148.975 (2014). To discharge the duty, N.M. reported Expose’s statements to her supervisor, D.P., and the police.

 N.M. testified at trial. The Court of Appeals reversed the ensuing conviction.


the therapist-client privilege statute lacks a "threats exception," either by implication from the duty-to-warn statute or under our authority to promulgate rules of evidence. The district court therefore abused its discretion when it allowed N.M. to testify about Expose’s allegedly threatening statements without his consent.

The court found that the error was not harmless and the Court of Appeals correctly reversed the conviction. (Mike Frisch)

December 9, 2015 in Comparative Professions, Privilege | Permalink | Comments (0)

Thursday, October 8, 2015

Fiduciary Exception and Adversity Explored

An opinion on attorney-client privilege from the New York Appellate Division for the First Judicial Department

This appeal arises from a discovery dispute in which the managers of a limited liability company and corporate counsel invoke the attorney-client privilege in opposition to document requests by one of the company's investors. The investor argues that it is entitled to the so-called fiduciary exception to the privilege because it is a beneficiary of the attorney-client relationship that exists between the company's managers and counsel. The managers and counsel, on the other hand, contend that because the investor had interests that were adverse to the company's interests, the fiduciary exception is inapplicable. Supreme Court found that the parties were not adverse, and ordered the production of all the documents claimed to be privileged.

We conclude that "adversity" is not a threshold issue in determining whether the fiduciary exception is applicable in a given case, but one of several factors to consider in making that determination, and that adversity cannot be determined without a review of the purportedly privileged communications. Therefore, we remand the matter for an in camera review of the withheld documents and a full analysis of whether the exception is applicable in this case. Absent a more deliberate review and analysis, the risk of disclosure of privileged communications is manifest.

The case was an appeal from a special referee's production order.

The court recognized the "fiduciary" exception and held

 although defendants do not take issue with the motion court's finding of good cause — they focus on the determination that there never was an adversarial relationship between NAMA and Alliance — we conclude that the case must be remanded for the court to conduct a comprehensive good-cause analysis. The court, given its discretion under CPLR article 31, may not need to evaluate each factor listed in Garner. However, where a court finds that a shareholder has demonstrated good cause to apply the fiduciary exception and pierce the corporate attorney-client privilege, it must at least address those factors that support such a finding. This type of scrutiny is vital to ensure that courts do not arbitrarily order disclosure of corporate attorney-client communications...

 The adversity question is therefore not one of timing, as defendants contend, but is answered by the communications' content. For this reason, we reject defendants' argument that, if NAMA were adverse to Alliance at some point, all subsequent communications between the Managers and the Attorneys would rest beyond the fiduciary exception's reach. Communications regarding defendants' alleged breach of fiduciary duties could have occurred at the same time as attorney-client communications regarding how to deal with NAMA (for example, during the California arbitration); it would frustrate the balancing of interests in attorney-client privilege cases to permit defendants to withhold communications that might reveal the alleged wrongful conduct simply because the parties were adverse at some point in the past. Thus, the motion court correctly stated that whether communications that occurred after an adversarial relationship developed are privileged depends on their content.

This is where a court's ability to conduct in camera review of the communications is crucial (see Spectrum Sys. Intl., 78 NY2d at 378 ["whether a particular document is or is not protected is necessarily a fact-specific determination, most often requiring in camera review"] [*12][internal citation omitted]; see also Stenovich, 195 Misc 2d at 102 [discussing court's in camera review of arguably privileged documents]). Absent a review of the communications (or at least a sampling thereof), it would be impossible to determine whether they involved advice concerning the instant litigation or "how to deal with" NAMA.

The matter was remanded for further proceedings. (Mike Frisch)

October 8, 2015 in Privilege | Permalink | Comments (0)

Monday, August 3, 2015

Error To Allow Deposition Of Counsel

The South Dakota Supreme Court held that a trial court had violated the attorney-client privilege by allowing the deposition of a party's attorney and admitting his admissions at trial.

This case arose out of a foreclosure action brought by Voorhees Cattle Co. (Voorhees) against Dakota Feeding Co. (DFC). In its answer to the complaint, DFC filed a third party complaint against B and B Equipment, Inc. (B & B) for breach of contract; B & B counterclaimed alleging impossibility of performance and breach of contract by DFC...

As a result of the fraud allegations, counsel for Voorhees, Thomas M. Maher, sought to depose DFC’s counsel William Van Camp and subpoenaed his records concerning his representation of DFC. Van Camp moved to quash the subpoena and enter a protective order.


The court held a hearing on the motion on October 2, 2013. Van Camp argued that there was no applicable fraud exception to the attorney-client privilege and that he was acting as “an ordinary attorney” by performing due diligence on the transaction. Further, he stated that there is no statute or case law in South Dakota that allows an attorney to be deposed in ongoing litigation because of a fraud complaint such as this. Van Camp explained he was resisting the motion, in part because “they can conduct the discovery they want from my client, the discovery they want from DENR to see what information is there.” 

The deposition was taken and admissions from that deposition were admitted at trial.

The court found that this was error

Even if the court found that the communications may not have been privileged or that waiver was an issue, it should have considered whether deposing opposing counsel was the appropriate means of acquiring the information sought. The court failed to consider the implications of allowing discovery without bounds by the extraordinary means of requesting admissions from opposing counsel regarding client communications, deposing opposing counsel, and issuing a subpoena for the production of materials from counsel’s case files. “Taking the deposition of opposing counsel not only disrupts the adversarial system and lowers the standards of the profession, but it also adds to the already burdensome time and costs of litigation.” Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986).

Opposing counsel “is [not] absolutely immune from being deposed.” Id. However, the circumstances under which opposing counsel may be deposed “should be limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel, (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Id. (citation omitted). In this case, none of these considerations were taken into account. The court did not analyze the necessity for the discovery or consider reasonable alternative sources such as DFC’s principals or other witnesses such as the DENR employees that may have spoken with DFC’s attorney.

The judgment was nonetheless affirmed

Even though the privileged communications should not have been introduced, nor the deposition of the attorney and further discovery of attorney client privileged material allowed, those communications were germane to the claim by Voorhees, which is not being appealed because DFC satisfied the judgment against it. The communications did not prove, nor go to the heart of B & B’s claims...

The only issue between B & B and DFC decided by the jury was the amount of money owed B & B for the work done on the feedlot. As a result, the erroneous admission of the privileged communications was not unfairly prejudicial to DFC as against B & B. DFC’s claim that the error tainted the trial is not sufficient.

(Mike Frisch)


August 3, 2015 in Hot Topics, Privilege | Permalink | Comments (0)

Sunday, November 30, 2014

California Upholds Internal Communication Law Firm Privilege

A decision issued last week by the California Court of Appeals, Second District, Division Three holds

The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications. Adoption of the so-called "fiduciary" and "current client" exceptions to the attorney-client privilege is contrary to California law because California courts are not at liberty to create implied exceptions to the attorney-client privilege. In the unpublished portion of the opinion, we hold that the exceptions to the attorney-client privilege embodied in Evidence Code sections 958 and 962 do not apply to the circumstances presented here. Accordingly, we grant in part the petition of Edwards Wildman Palmer LLP and Dominique Shelton for a writ of mandate, and remand to the trial court for further proceedings.

The court cites the Massachusetts and Georgia cases as well as the Chambliss law review article.

The client had retained the law firm to pursue an invasion of privacy claim against the Daily Mail. As the court noted

The relationship between [client] Mireskandari and the Firm was short lived and, for the most part, contentious.

The court rejected the suggestion that internal counsel and the client were "joint clients" of the firm

Shelton and Mireskandari were not joint clients for purposes of section 962. Shelton and Mireskandari did not retain the Firm "upon a matter of common interest." Mireskandari retained the Firm and Shelton to represent him in the Daily Mail case; Shelton consulted with in-house counsel not as a party to that action, but to obtain advice on how best to address Mireskandari's complaints about billing and his threats to hold the firm responsible for any damages he suffered. Mireskandari and Shelton were not co-parties; they did not employ the same attorney to oppose claims of an adversary or pursue a claim as joint plaintiffs; they were not represented by the same attorney in a business transaction.

The court vacated an order that had permitted discovery into the firm's internal communications.

Thank you to my former student Daniel Woofter for sending me the case. His article from the Georgetown Journal of Legal Ethics is cited in the opinion. (Mike Frisch)

November 30, 2014 in Hot Topics, Law Firms, Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

A Common Interest, A Common Privilege

In a matter involving the application of the common interest rule in attorney-client privilege law, the New Jersey Supreme Court has held that

The common interest rule is designed to permit the free flow of information between or among counsel who represent clients with a commonality of purpose. It offers all parties to the exchange the real possibility for better representation by making more information available to inform decision-making in anticipation of litigation. Although the Court recognizes that any privilege, including the attorney-client privilege and work-product protection, restricts the disclosure of information and may intrude on the fact-finding function of litigation, the Court finds that the rule recognized in LaPorta strikes an acceptable balance of competing interests. The Court, therefore, expressly adopts the common interest rule as articulated in LaPorta. Common purpose extends to sharing of trial preparation efforts between attorneys against a common adversary. The attorneys need not be involved in the same litigated matter or anticipated matter. The rule also encompasses the situation in which certain disclosures of privileged material are made to another attorney who shares a common purpose, for the limited purpose of considering whether he and his client should participate in a common interest arrangement. (pp. 33-37)

The protected attorney work product disclosed by Sufrin to the municipal attorney remained privileged pursuant to the common interest rule. Sufrin and Longport shared a common purpose at the time of the disclosure because Longport had defended many civil actions filed against it by O’Boyle and anticipated further litigation from O’Boyle, and Sufrin was attempting to defend a civil action commenced by O’Boyle arising out of one client’s official position and others’ participation in civic affairs. Sufrin also disclosed his work product in a manner calculated to preserve its confidentiality. There is no evidence that the municipal attorney shared the material with anyone else, including O’Boyle. Once the municipal attorney declined to enter a joint defense strategy, he returned the privileged material, thereby minimizing even an inadvertent disclosure. Finally, although privileges may be overcome by a showing of particularized need under the common law right of access, O’Boyle failed to demonstrate a particularized need for the privileged material supplied to the municipal attorney. (pp. 37-39)

The holding

...we expressly adopt the common interest rule as previously articulated in LaPorta, supra, 340 N.J. Super. at 254, 262-63. We also hold that Sufrin, who represented a former municipal official and private residents in litigation filed by O’Boyle, shared a common purpose with Longport at the time he disclosed work product to the municipal attorney. Therefore, the joint strategy memorandum, and the CDs containing documents obtained and produced by the private attorney were not government records subject to production in response to an OPRA request by O’Boyle. Finally, O’Boyle failed to articulate a particularized need as required by the common law right of access to obtain the work product of the private attorney.

The litigation involved access to public records. (Mike Frisch)

July 21, 2014 in Privilege | Permalink | Comments (0) | TrackBack (0)

Saturday, May 31, 2014

Oregon Rejects Fiduciary Exception

The Oregon Supreme Court held that a law firm's communications with in-house counsel were protected from disclosure from the now-former client.

The court reversed an order of production based on the so-called "fiduciary exception" to the attorney-client privilege

We conclude that OEC 503(4) was intended as a complete enumeration of the exceptions to the attorney-client privilege. Insofar as that list does not include a “fiduciary exception,” that exception does not exist in Oregon, and the trial court erred in relying on that exception to compel production of communications that otherwise fell within the general scope of the privilege. It follows that the trial court’s order must be vacated to the extent that it orders production of communications that were otherwise within the privilege. 
The litigation involved a dispute between Davis Wright Tremaine and a former client. (Mike Frisch)

May 31, 2014 in Current Affairs, Privilege | Permalink | Comments (0) | TrackBack (0)

Friday, May 16, 2014

Testamentary Exception To Attorney-Client Privilege Recognized

A busy day for attorney issues in the Maryland Court of Appeals.

In addition to three disbarments (two of which we have linked to), the court held

As evidenced by this Court’s holding in Benzinger, the testamentary exception has existed in Maryland for close to a century, despite never having been formally named. Nonetheless, it has been some time since this Court has spoken on the testamentary exception. For this reason, we reaffirm that in a dispute between putative heirs or devisees under a will or trust, the attorney-client privilege does not bar admission of testimony and evidence regarding communication between the decedent and any attorneys involved in the creation of the instrument, provided that evidence or testimony tends to help clarify the donative intent of the decedent.

(Mike Frisch)

May 16, 2014 in Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Dru Stevenson on being Against Confidentiality

Two points to make about confidentiality, just as all us ethics profs are about to (spoiler alert) examine on it. One is that I note that there is an interesting article in the current Litigation magazine (the ABA's journal by the Section on Litgation) on whether confidentiality and privilege survive death. It's not yet posted on their website, so look for it in print or anticipate it online. It notes that the successor law firm to Lizzie Borden's counsel circa 1892 is still safeguarding its (really, her) records. I foresee a poem about the privilege here, but what rhymes with "privilege"? One point six does not quite rhyme with ax.

The more accessible point is that Drury D. Stevenson (South Texas, Law) has posted to SSRN an article that, to me, follows in the tradition of the late Fred Zacahrias. Dru's title is Against Confidentiality and his abstract is:

Confidentiality rules form an important part of the ethical codes for lawyers, as a modern, expansive extension of the traditional attorney-client privilege doctrine. The legal academy, judiciary, and practitioners generally agree on the conventional wisdom that strict confidentiality rules are necessary to foster client-lawyer communication, thereby providing lawyers with information they need for effective representation. Yet this premise is demonstrably false – clients withhold information or lie to their lawyers despite the confidentiality rules, and the rules are mostly redundant with other ethical rules, evidentiary doctrines, and effective market mechanisms for protecting client privacy interests. At the same time, the confidentiality rules impose significant social costs – direct externalities, lemons effects, and even serious harm to third parties.

This Article argues that the lawyer confidentiality rules are ripe for repeal, revision, or rejection in the form of civil disobedience in certain cases. Using analytical tools from economics, including the Coase Theorem, this Article goes beyond previous criticisms of the rules to provide an extensive analysis of the social costs – and illusory benefits – of the ethical rules that compel lawyers to conceal client secrets. The rules undermine public trust in the legal system, and overall transparency and cooperation in society. In extreme instances, the rules facilitate wrongful convictions of innocent third parties and other serious harms. In relation to the other ethical rules, the confidentiality rules are generally in tension with, or redundant of, other rules designed to protect clients and third parties. The Article concludes with specific normative proposals for revising the rules, or challenging the existing rules as a way to force reforms.

[Alan Childress]

April 15, 2014 in Abstracts Highlights - Academic Articles on the Legal Profession, Privilege | Permalink | Comments (0) | TrackBack (0)

Thursday, January 23, 2014

Balancing The Attorney-Client And Physician-Patient Privileges

The Washington State Supreme Court has held that "an attorney hired by a corporate defendant to investigate or litigate an alleged negligent event may engage in privileged (ex parte) communications with the corporation's physician employee where the physician-employee has firsthand knowledge of the alleged negligent event and where the communications are limited to the facts of the alleged negligent event."

The ruling does not encompass health care provided before and after the event that resulted in litigation.

The court considered the application of the rule from a 1988 decision that barred ex parte communication between a doctor and his or her employer's attorney "where the employer is a corporation and named defendant whose corporate attorney-client privilege likely extends to the physician, at least as to certain subjects" and "balance[d] the values underlying the attorney-client privilege against those underlying the physician-patient privilege."

Justice Stephens concurred and dissented, finding the court's new rule an "unworkable" one that "erodes the sound policy decision" of the earlier case. (Mike Frisch)

January 23, 2014 in Privilege | Permalink | Comments (0) | TrackBack (0)

Friday, December 20, 2013

"The Understatement Of the Year"

Two attorneys who had represented opposing parties in civil litigation ended up in litigation against each other.

The Maryland Court of Appeals affirmed dismissal of the case, noting that "[t]o characterize Farmer and Mixter's relationship as acrimonious might be the understatement of the year. This court is sadly too familiar with the antics of these litigants from a dispute a few years ago..."

After the earlier case settled, Farmer "was so infuriated by Mixter's behavior that he sought sanctions against him."  Sanctions were imposed but reversed on appeal.

Farmer then sent twenty letters to various Maryland lawyers that alleged "unprofessional behavior" and sought information for a bar complaint. Mixter responded with a suit for defamation. Famer sent more letters to attorneys and filed a bar grievance against Mixter.

The court here affirmed the the dismissal of the Mixter suit against Farmer and a second attorney who allegedly conspired with him based on absolute judicial privilege grounds

Because [Attorney Grievance Commission] complaints are not published and lawyers' exposure is protected to a reasonable degree, we are unwilling to overlook the absolute privilege accorded to the AGC process simply because appellant feels aggrieved by the situation.

(Mike Frisch)

December 20, 2013 in Hot Topics, Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, December 9, 2013

Disclosure Of Attorney's Files Sustained

The New Hampshire Supreme Court affirmed an order holding that an attorney's file is subject to disclosure in a probate matter.

The attorney was consulted twice, but not retained, for estate planning of a deceased couple. One of the brothers claims that the other brother exercised undue influence on the parents

...because the Attorney's file is relevant to an issue between the parties who claim through the same deceased client, we hold that the trial court did not unsustainably exercvise its discretion in allowing the file to be disclosed to the parties under [rules of evidence].

The court also sustained disclosure of correspondence between the attorney and one of the brothers. (Mike Frisch)

December 9, 2013 in Clients, Privilege | Permalink | Comments (0) | TrackBack (0)

Thursday, October 24, 2013

A Trip To Spain

An e-mail from Kean University's head basketball coach to the University's general counsel is protected by the attorney-client privilege, according to a decision issued today by the New Jersey Appellate Division.

The plaintiff in the litigation is the former athletic director, who was terminated "supposedly for failure to properly supervise subordinates in the athletic program, which led to the University being sanctioned" by the NCAA.

He sued for wrongful termination.

The e-mail had been in connection with a fundraising letter to defray costs of a team summer trip to Spain.

The court majority noted that the trial court found the e-mail to be privileged but found waiver. The court here agreed on privilege and reversed on the waiver issue.

The coach had provided the e-mail to the NCAA. The court concluded that the University, not the coach, had authority to waive the privilege.

A dissent concludes that the e-mail was not sent for the purpose of securing legal advice and thus was not privileged. reported on the NCAA actions. (Mike Frisch)

October 24, 2013 in Privilege | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

In-House Privilege Upheld By Massachusetts Court

A significant decision today by the Massachusetts Supreme Judicial Court.

The issue and holding:

The issue presented on appeal is whether confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  We conclude that they are, provided that (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.  Because these criteria were met in this case, we affirm the judge's order allowing the defendant law firm and its attorneys to invoke the attorney-client privilege to preserve the  confidentiality of these communications.

The law firm was retained by a commercial lender to investigate title and foreclose on property secured by what the lender thought was a first mortgage. A third party claimed a superior interest in the property.

A year later, the client (through outside counsel) sent the law firm a draft complaint alleging malpractice and breach of contract. 

The lawyers in the firm then consulted with the firm partner "designated to respond to ethical questions and risk management issues on behalf of [the firm]..."

The court underscored the importance of the ethics attorney function:

Where a law firm designates one or more attorneys to serve as its in-house counsel on ethical, regulatory, and risk management issues that are crucial to the firm's reputation and financial success, the attorney-client privilege serves the same purpose as it does for corporations or governmental entities: it guarantees the confidentiality necessary to ensure that the firm's partners, associates, and staff employees provide the information needed to obtain sound legal advice.  See Hertzog, Calamari & Gleason v. Prudential Ins. Co. of Am., 850 F.Supp. 255, 255 (S.D.N.Y.1994) ("No principled reason appears for denying ... attorney-client privilege to a law partnership which elects to use a partner or associate as counsel of record in a litigated matter").  "[B]road protection of communications with law firm in-house counsel, including communication about the representation of a current client of the firm, ... would encourage firm members to seek early advice about their duties to clients and to correct mistakes or lapses, if possible, to alleviate harm." Chambliss, supra at 1724.  As the United States District Court for the Southern District of Ohio recently noted: 

"[I]ndividual lawyers who come to the realization that they have made some error in pursuing their client's legal matters should be encouraged to seek advice promptly about how to correct the error, and to make full disclosure to the attorney from whom that advice is sought about what was done or not done, so that the advice may stand some chance of allowing the mistake to be rectified before the client is irreparably damaged.  If such lawyers believe that these communications will eventually be revealed to the client in the context of a legal malpractice case, they will be much less likely to seek prompt advice from members of the same firm."

The court rejected a differing result when the situation involves a current, rather than former, client:

In law, as in architecture, form should follow function, and we prefer a formulation of the attorney-client privilege that encourages attorneys faced with the threat of legal action by a client to seek the legal advice of in-house ethics counsel before deciding whether they must withdraw from the representation to one that would encourage attorneys to withdraw or disclose a poorly understood potential conflict before seeking such advice.  The "current client" exception is a flawed interpretation of the rules of professional conduct that yields a dysfunctional result.  See N.Y. St. Bar Ass'n Comm. on  Prof. Ethics, Op. 789 (2005) ("We do not believe that the conflicts rules ... were intended to prohibit ethics consultation when it is most helpful:  during the client representation").  As such, we decline to adopt it in Massachusetts.

Briefs were submitted by several amicus curiae, including the Association of Professional Responsibility Lawyers, the American Bar Association and the Attorneys' Liability Assurance Society, Inc.

The case is RFF Family Partnership, LP v. Burns & Levinson LLP. One should be able to access the decision through this link.

Law firm ethics counsel --every firm of sufficient size needs one. (Mike Frisch)

July 10, 2013 in Current Affairs, Hot Topics, Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 14, 2013

Can State Get Access To Appointed Counsel Forms?

The New Jersey Supreme Court has held that the State's subpoena for an indicted defendant's application (with financial information) for court-appointed counsel was properly quashed.

The defendant is indicted for financial crimes. The State's investigation "suggested that defendant owned substantial assets."

The court modified an existing directive to permit disclosure for the purpose of investigating potential false statements of financial status in the future.

The court did not reach the issue whether the attorney-client privilege protect the form from disclosure. In the future, a fact-specific inquiry must be conducted "in accordance with settled principles governing the privilege. (Mike Frisch)

May 14, 2013 in Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, May 13, 2013

Asking Sherwin-Williams

A recent Rhode Island Supreme Court decision is summarized on the court's web page:

Before this Court is the appeal of Sherwin-Williams Company (Sherwin-Williams) from an order denying its motion for a protective order to prohibit the disclosure of and the use of an internal company document.  Sherwin-Williams argues that the disclosure of that document would offend both the attorney-client privilege and the work-product doctrine.  Not surprisingly, the state maintains that the document is not privileged in any way and, therefore, it is not protected from disclosure.  After reviewing the record, the Court held that Sherwin-Williams met its burden of establishing that the internal company document was factual work product, and that the state failed to meet its burden of establishing that the protected document nevertheless was discoverable because of substantial need and a resulting injustice or undue hardship.  The Court also concluded that Sherwin-Williams did not waive the protection afforded by the work-product doctrine.  Because the Court held that the internal document was shielded from discovery based on the work-product doctrine and that this protection was not waived, it did not reach the claim of attorney-client privilege.

Accordingly, the Court vacated the order of the Superior Court denying Sherwin-Williams’ motion for a protective order and remanded the case to the Superior Court.
In the opinion's introduction, the court quotes from Macbeth, Act V, Scene 5 ("To-morrow, and to-morrow, and to-morrow, Creeps in this petty pace from day to day") and laments:  "In a case whose life begins to rival the age of the biblical Methusalah, we are confronted with another anfractuous dispute among the warring parties." (Mike Frisch)

May 13, 2013 in Current Affairs, Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, January 28, 2013

Redistricting Consultations Privileged in North Carolina

The North Carolina Supreme Court has held that the consultations between members of the General Assembly and lawyers employed by the Attorney General and two outside law firms (Ogletree Dinkins and Jones Day) in matters involving redistricting plans are protected by the attorney-client privilege.

Justice Jackson, for the majority, concluded that the General Assembly did not intend to waive privilege in such matters:

..we are unwilling to infer such a sweeping waiver unless the General Assembly leaves no doubt about its intentions.

Justice Hudson dissented, and noted that the enactment at issue stripped confidentiality from redistricting law. Without confidentiality, there can be no privilege:

Defendants seek to protect much of their legislative redistricting work from public scrutiny under the cloak of the attorney-client privilege; however, the statutory language could not be clearer in indicating that the privilege is inapplicable here, making waiver irrelevant.

(Mike Frisch)

January 28, 2013 in Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 8, 2013

Law Firm Invoices For Representing County Are Public Records

In a matter in which a county was represented in litigation by a law firm pursuant to an insurance contract, a majority of the Wisconsin Supreme Court has held that the law firm's invoices are public records subject to disclosure:

Because the liability insurance policy is the basis for the tripartite relationship between the County, the insurance company, and the law firm and is the basis for an attorney-client relationship between the law firm and the County, we conclude that the invoices that were produced or collected during the course of the law firm's representation of the County pursuant to the liability insurance policy come under the liability insurance policy.  Wisconsin Stat. § 19.36(3) therefor governs the accessibility of the invoices...

The invoices——the billings for the law firm's legal work performed as the County's defense counsel and the insurance company's retained counsel——were produced or collected in the course of the law firm's representation of the County and the insurance company under the liability insurance policy between the County and the insurance company.  Because the liability insurance policy is the basis for the tripartite relationship between the County, the insurance company, and the law firm, and is the basis for an attorney-client relationship between the law firm and the County, we conclude that the invoices were produced or collected during the course of the law firm's representation of the County and the insurance company pursuant to the liability insurance policy; the liability insurance policy is a contract entered into by
the County and the insurance company. Thus, the requirements of Wis. Stat. § 19.36(3) have been met and § 19.36(3) governs the accessibility of the invoices.

There are several dissents, including this from the dissent of Justice Prosser:

The majority opinion permits Wisconsin's public records law to breach privileged communications, contrary to sound public policy and the text of the public records statute.  The majority's assurance that the opinion "does not alter the rules governing confidentiality, attorney-client privilege, or lawyers' work product, or any other rules protecting against disclosure," majority op., ¶15, is unpersuasive given the opinion's analysis and its other declarations.  Because I believe the opinion has serious negative ramifications for the practice of law, I respectfully dissent...

The stakes in this dispute are obvious.  The Star-Times already has information on the names of the County's lawyers, the number of hours they worked, and the amount they were paid——not by the County with County tax dollars, but by the County's insurer.  What the Star-Times wants are "detailed descriptions of the nature of the legal services rendered" and "the substance of [the] lawyer-client communications." 

Any court that determines that these matters of substance are not present in the subject invoices must be prepared to rule that the circuit court's findings were clearly erroneous.

Deciding this case without discussing the lawyer-client privilege in relation to the limiting language of the public records law (in Wis. Stat. §§ 19.31, 19.35(1), 19.36(1), and 19.85(1)(g)) casts a dark shadow over the lawyer-client privilege and other privileges in Chapter 905.  

An appellate court should reduce uncertainty, not magnify it.  The likely result of this case will be to force changes in billing practice.  In the future, legal invoices related to an "authority" may be sanitized so that they provide insurers and public entity clients with no information except the hours worked and the amount owed as well as an invitation to discuss the details orally.

The suit was brought the Star-Times. (Mike Rrisch)

January 8, 2013 in Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, July 23, 2012

Privilege Claim Defeats Subpoena

The Connecticut Supreme Court has reversed an order compelling a law firm to comply with a subpoena.

The law firm represents a plaintiff suing former counsel for legal malpractice:

The plaintiffs' malpractice claim concerns only the allegedly negligent representation by the defendants, which is separate from the plaintiffs' subsequent representation by [plaintiffs' counsel] Finn Dixon. Although the issue of damages will likely involve the reasonableness of the settlements entered into on Finn Dixon's advice, the fact finder should be able to assess damages without resorting to privileged communications...We decline to adopt the contrary rule urged by the defendants because it lacks precedential support and runs counter to our narrow construction of exceptions to the attorney-client privilege.

There is a dissent that would hold that the order compelling discovery is not appealable at this juncture. (Mike Frisch)

July 23, 2012 in Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 19, 2012

Ohio Supreme Court Rules On Tressel Document Disclosure

From the Ohio Supreme Court:

The Supreme Court of Ohio today issued a limited writ of  mandamus ordering Ohio State University to provide ESPN with several documents  related to the 2011 NCAA investigation of football coach Jim Tressel that the  university had previously refused to provide to the network in response to  public records requests.

However the court  declined to order disclosure of most of the records sought by ESPN, finding  that the requested documents fell within exceptions to the state Public Records  Act for documents covered by attorney-client privilege and documents that may  not be disclosed under the federal Family Educational Rights and Privacy Act  (FERPA).

In today’s 7-0 per  curiam opinion, the court also found that OSU officials had committed “per se”  violations of the Public Records Act by failing to explain how ESPN could modify  some of its record requests after the university had rejected them as  “overbroad,” and by erroneously stating that the university was not required to  disclose records related to an ongoing NCAA investigation.  Because ESPN’s complaint did not ask the court  to award statutory damages or order other remedial action based on those alleged  violations, the court limited its ruling on those issues to making official  findings that violations had occurred.

The court  denied ESPN’s request for an award of attorney fees “(b)ecause Ohio  State complied with the vast majority of its obligations under R.C. 149.43 in  responding to ESPN’s records requests, and ESPN’s claims are largely without  merit.”

The court noted  that, in the weeks following a March 8, 2011 news conference at which Tressel  admitted that he had failed to inform his superiors after learning about  possible NCAA rule violations by OSU players, the university received 21  separate public records requests from ESPN and provided more than 700 pages of  documents in response to those requests. The university  declined to provide certain additional  documents, including some communications between athletic department officials and  the NCAA addressing the investigation of Tressel, documents identifying persons  officially barred from access to student athlete pass lists, and communications  to or from university officials that mentioned the name of Ted Sarniak, a  Pennsylvania man who had been a friend and advisor to Terrelle Pryor, one of  the football players implicated in the alleged rule violations.

In July 2011, ESPN  filed an original action in the Supreme Court seeking a writ of mandamus to  compel OSU to provide copies of all the requested documents. While that action,  which is resolved by today’s decision, remained pending, the parties continued  to negotiate, and OSU provided ESPN with some additional documents, but  continued to deny access to others.

In rejecting ESPN’s argument that the  exception to the Public Records Act for records that may not be disclosed under  a state or federal law does not apply to FERPA, the court wrote: “ESPN argues that FERPA does not prohibit the disclosure of  the requested records by educational agencies and institutions like Ohio State  − it merely penalizes those educational agencies and institutions that have a  policy or practice of permitting the release of those records without parental  consent by withholding federal funding. ESPN’s contention lacks merit.  ... ‘(A) participant who accepts federal education funds is well aware of the conditions  imposed by the FERPA and is clearly able to ascertain what is expected of  it.  Once the conditions and the funds  are accepted, the school is indeed prohibited from systematically releasing  education records without consent.’”

“Ohio State received approximately 23 percent of its total  operating revenues − over $919 million − in the 2010-2011 academic year from  federal funds, and it is estimated that the university will receive the same  amount of federal funds in the 2011-2012 academic year. Therefore, Ohio State,  having agreed to the conditions and accepted the federal funds, was prohibited  by FERPA from systematically releasing education records without parental  consent. This result is consistent with the holdings of other state courts that  have addressed this issue.”

“ESPN asserts that FERPA is inapplicable to the  records responsive to its requests for documents related to Sarniak and the  prior NCAA investigations because these records do not constitute ‘education  records.’  ... ESPN relies on language  from this court’s opinion in State ex  rel. Miami Student v. Miami Univ. (1997), in which the court granted a writ  of mandamus to compel the disclosure of student disciplinary proceedings for  1993 through 1996 by reasoning that because the cases, which involved  infractions of student rules and regulations, were ‘nonacademic in nature,’ the  records were not ‘education records’ subject to FERPA.” 

“Following  our decision in Miami Student,  however, the United States Court of Appeals for the Sixth Circuit held (in United States v. Miami University, 2002)  that student disciplinary records were education records subject to FERPA and  permanently enjoined Miami University and Ohio State from releasing records in  violation of FERPA. ... The court held that ‘[u]nder a plain language  interpretation of the FERPA, student disciplinary records are education records  because they directly relate to a student and are kept by that student’s  university.  Notably, Congress made no  content-based judgments with regard to its “education records” definition.’”            

“Upon  consideration of our opinion in Miami  Student and the Sixth Circuit Court of Appeals’ opinion in Miami Univ., we agree with the Sixth  Circuit and hold that the records here generally constitute ‘education records’  subject to FERPA because the plain language of the statute does not restrict  the term ‘education records’ to ‘academic performance, financial aid, or  scholastic performance.’  Education  records need only ‘contain information directly related to a student’ and be ‘maintained  by an educational agency or institution’ or a person acting for the institution  ...  The records here − insofar as they  contain information identifying student-athletes − are directly related to the  students.”

Following  its own in camera inspection of records that OSU had withheld as not  disclosable under FERPA, the court determined that  a few of those documents should have been  provided to ESPN after personal student information had been redacted.

The  court wrote: “An e-mail chain between Tressel, the Ohio State athletics  department official in charge of compliance, attorneys, and other officials  scheduling a meeting includes no personally identifiable information concerning  any student-athlete.  In e-mails to  schedule a meeting to formulate a compliance plan for one of the  student-athletes, aside from the name of the student-athlete  and a person who agreed to attend the meeting, no personally identifiable  information is included.  Another  document refers to one person’s request to obtain a disability-insurance policy  on behalf of a student-athlete, and with those names redacted, the document  would not contain personally identifiable information. There are also two  letters from Ohio State’s athletics department compliance director to the  parents of a student-athlete concerning preferential treatment.  With the personally identifiable information  concerning the names of the student-athlete, parents, parents’ addresses, and  the other person involved redacted, FERPA would not protect the remainder of  these records. ... Therefore, although the majority of the requested records  were properly redacted before being provided to ESPN, ESPN is entitled to  access to redacted copies of these few records that were completely withheld  from it based on FERPA.”

“Ohio State properly withheld the remaining  requested records based on attorney-client privilege. ... These records include  requests from Ohio State officials for legal advice and interpretation,  communications from or between the attorneys providing legal advice or  information to Ohio State, and investigatory fact-finding related to the legal  advice. ... ESPN’s contention that Ohio State cannot rely on attorney-client  privilege to shield these records is unfounded   because ‘an attorney does not become any less of an attorney by virtue  of state agency employment.’  ... (T)here  is no requirement in public-records mandamus cases that public offices or  officials must ‘conclusively establish’ the privilege by producing agreements  retaining agents or joint-defense agreements with attorneys representing other  clients. Therefore, Ohio State properly withheld the remaining requested  records based on the attorney-client privilege.”

The opinion is linked here. (Mike Frisch)

June 19, 2012 in Privilege | Permalink | Comments (0) | TrackBack (0)

Thursday, March 15, 2012

Privilege And Workers' Compensation

The Montana Supreme Court has dismissed an appeal from a district court order denying attorney-client privilege and work product claims in a workers' compensation matter.

The worker had suffered a serious injury. The employer's insurer (Zurich) accepted liability for the claim. When disagreements arose over the level of impairment and other issues, an outside attorney prepared an opinion and evaluation letter for Zurich in advance of a mediation. The opinion letter was given to the adjuster handling the claim, who provided it to the employer.

The district court found that the document was not protected from discovery.

The court here noted that "[t]he intersection of workers' compensation law and the attorney-client privilege presents a unique issue." The employer is not a party and is not at risk in the matter: "It is thus improper for an insurer and an employer to collaborate on settlement of a worker's claim for benefits."

The court held that the common interests of insurer and employer were "not sufficient to extend the [attorney-client] privilege beyond the attorney-client relationship." Further, the disclosure of the letter to the employer was not for the purpose of seeking legal advice.

Justice Rice dissented and would hold that there is a sufficient "community of interest" between employer and insurer to reverse the district court's privilege detrmination.

The link is not working. The case is American Zurich Insurance v. Montana Thirteenth Judicial District Court. (Mike Frisch)

March 15, 2012 in Privilege | Permalink | Comments (0) | TrackBack (0)