Legal Profession Blog

It's A Privilege

The United States Court of Appeals for the District of Columbia Circuit upheld a corporate attorney-client privilege claim

In 2008, a patent negotiation occurred between Boehringer (the name brand with the patent) and Barr (the generic seeking to challenge the patent). Ultimately, the parties reached a reverse payment settlement.

The Federal Trade Commission pays close attention to reverse payment settlements to ensure that they do not run afoul of antitrust law. In 2009, the Commission began investigating the Boehringer-Barr settlement. During the investigation, the Commission subpoenaed documents from Boehringer. Boehringer claimed that the subpoenaed documents were created by Boehringer employees for Boehringer’s general counsel, Marla Persky, at her request. The documents allowed Persky to analyze and navigate the treacherous antitrust issues surrounding reverse payment settlements. Other documents reflected communications between Persky and Boehringer executives regarding the possible settlement. Boehringer asserted attorney-client privilege over the documents.

The court analyzed the purpose of the communication

In this case, the question therefore is whether obtaining or providing legal advice was one of the significant purposes of the communications at issue. The answer is yes.

The relevant communications consist primarily of the transmission of factual information from Boehringer’s employees to the general counsel, at the general counsel’s request, for the purpose of assisting the general counsel in formulating her legal advice regarding a possible settlement. Other communications were between the general counsel and the corporation’s executives regarding the settlement. All of those communications are protected by the attorney-client privilege because one of the significant purposes of the communications was “obtaining or providing legal advice” – namely, settlement and antitrust advice.

As to business purpose

To be sure, the communications at issue here also served a business purpose. The decision whether and at what price to settle ultimately was a business decision as well as a legal
decision for Boehringer. But as we stated in Kellogg, what matters is whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communications. Here, as the District Court correctly concluded, one of the significant purposes of these communications was to obtain or provide legal advice. It follows that Boehringer’s general counsel was acting as an attorney and that the communications are privileged.

Circuit Judge (and my former Georgetown neighbor) Pillard concurs with a warning

I agree with the opinion of the court as far as it goes. I write separately to emphasize why the spare elegance of the court’s opinion should not be mistaken for an expansion of the attorney-client privilege recognized in our prior precedents: In short, the district court engaged extensively with the disputed documents and the bases for the privilege claims, and followed certain truncated procedures only with the parties’ consent.

(Mike Frisch)

Attorney Not Compelled To Give Evidence Against Bail Jumping Client

The Montana Supreme Court granted a writ to prevent an attorney from providing testimony in a bail jumping case

Petitioner seeks a writ of supervisory control concerning the Third Judicial District Court’s order granting the State’s motion in limine that compels Shannon Sweeney (Sweeney), an attorney, to testify against her client, Dakota James McClanahan (McClanahan), on a bail jumping charge.

The story

In May 2016, Sweeney was appointed to represent McClanahan, who was charged with possession of dangerous drugs with intent to distribute. McClanahan pled not guilty and was ultimately released after he signed the District Court’s Release Order and Conditions of Release. McClanahan did not show up to the final pretrial conference on November 16, 2016, and was subsequently charged with bail jumping.

Ed Sheehy was appointed to represent McClanahan on the bail jumping charge, and he moved to dismiss. Sheehy argued McClanahan did not have notice of the November 16, 2016 hearing. Knowledge of the final pretrial conference is a necessary element of the bail jumping charge. The District Court denied McClanahan’s motion to dismiss, concluding that the State should be allowed to introduce evidence at trial as to what, if anything, Sweeney told McClanahan about appearing at the final pretrial conference on November 16, 2016. Shortly thereafter, Sweeney sent a letter notifying the State that she would assert attorney-client privilege for any line of questioning about communications with McClanahan and the preparation of his defense.

The State filed a motion in limine and the District Court determined that Sweeney would have to testify as to whether she told McClanahan about the final pretrial conference. The State issued a subpoena directing Sweeney to appear and testify at trial. Sweeney made a motion to quash the subpoena, which was denied by the District Court.

The attorney appealed and the court held

Regardless of whether the subject statements from counsel to client in this case constituted “advice given” for purposes of § 26-1-803(1), MCA, compelling counsel to testify under these circumstances would violate her duty of undivided loyalty to McClanahan.

Given that advising a client of a hearing date in a criminal case is inseparably intertwined with the concept of legal advice and that compelled inquiry of counsel to distinguish between advice and non-advice would vitiate counsel’s duty of undivided loyalty to the client, we hold that the District Court erred when it denied the motion to quash the subpoena compelling Sweeney to submit to examination on whether she advised her client of the fate of his final pretrial conference. Furthermore, § 26-1-803(1), MCA, prohibits the District Court from compelling Sweeney to testify about communications made with McClanahan without his consent when her testimony would prove the elements of a new charge against McClanahan. We expressly limit this holding to the unique facts and circumstances of this case.

Concurring opinion

My concern in this case is the statute’s prohibition on examination of an attorney about “the advice given to the client.” During oral argument, the State indicated that it wanted to ask Sweeney two questions. The first question was whether she had communicated the date of the final pretrial conference to McClanahan. I do not believe this to be legal advice. Our judicial system requires lawyers, as part of their duty of representation, to convey notice of court proceedings to their clients. If courts could not depend on this, service of notice would be required to be made personally upon all clients for all matters in every case. Consequently, it would be appropriate to ask McClanahan whether she had fulfilled this judicial function. Thus, I disagree with the Court’s conclusion that all the “statements from counsel to client in this case constituted ‘advice given’ for purposes of § 26-1-803(1), MCA.” Opinion, ¶ 14. In my view, this was a permissible inquiry.

However, at oral argument the State indicated it wanted to go further, and ask a second question—whether Sweeney had told McClanahan that he needed to attend the final pre-trial conference. An attorney’s communication about a client’s attendance at a proceeding, including whether, for whatever reason, the client should risk violating a release condition, falls into the realm of legal advice. For that reason, I believe the State’s proposed inquiry here was prohibited by the statute.

And a dissent from Justice McKinnon

I agree with the rationale employed by those courts and would hold that an attorney conveying the date of a hearing to her client is not “advice” protected by the attorney-client privilege. It is common practice for the court to notify counsel of a hearing and expect counsel to, in turn, notify her client of the proceeding. The date of a hearing is publicly available information that the attorney receives from the court, a third party. The date of a hearing does not encompass a client’s confidential information or an attorney’s advice in response thereto. Prohibiting disclosure of such information by precluding an attorney from ever being “examined” is contrary to the plain language of § 26-1-803(1), MCA...

I am mindful of the Court’s concern that the State is utilizing Sweeney, McClanahan’s attorney in the drug charge, to prove an essential element of the bail-jumping charge. Opinion, ¶¶ 14-15. I do not commend the practice of calling a defendant’s prior counsel as a witness in a bail-jumping trial. The State should make all attempts to avoid the need for such testimony. However, I can find no authority supporting the Court’s conclusion that requiring Sweeney to testify would violate her duty of loyalty to her client, and therefore cannot agree.

There seems to be a problem with the link. The case is Sweeney v. 3rd Judicial District.  (Mike Frisch)

Privilege Resolved On Question- By-Question Basis

The Rhode Island Supreme Court remanded a matter  involving attorney-client privilege

Viner was a North Kingstown High School chemistry teacher. It is undisputed that, during the summer following the 2014-2015 school year, one of Viner’s female students complained to her mother, who informed the school administration, about alleged inappropriate behavior by Viner. In an affidavit submitted to the Superior Court, Attorney Mary Ann Carroll, as legal counsel to the school committee, explained, that upon learning of the allegations, her law firm launched an investigation. She further explained that Attorney Aubrey Lombardo assisted in the investigation by interviewing five high school students and preparing a report based on those interviews, which was submitted to the superintendent of the North Kingstown School Department and the principal of North Kingstown High School.

After a pre-suspension hearing

In response, Viner requested a full evidentiary hearing before the school committee, which took place on December 7, 2015. At the conclusion of the full evidentiary hearing, the school committee again voted to suspend Viner without pay for the remainder of the school year and then terminate his employment at the close of the year. In turn, Viner appealed the school committee’s decision to the commissioner of elementary and secondary education within the Rhode Island Department of Elementary and Secondary Education (RIDE). At Viner’s request, the RIDE hearing officer issued three subpoenas pursuant to G.L. 1956 § 16-39-8: witness subpoenas addressed to Attorneys Carroll and Lombardo and a subpoena duces tecum to the North Kingstown School Department.

On appeal

Based on the foregoing, therefore, we remand this case to the Superior Court to follow the procedure described above. At the discretion of the hearing justice, the two attorneys may either be deposed or testify at a hearing. The hearing justice may then make an attorney-client privilege determination on a question-by-question basis, bearing in mind that the burden of persuasion rests upon the party seeking to assert the privilege. See State v. von Bulow, 475 A.2d 995, 1005 (R.I. 1984). We expect that the council on elementary and secondary education will refrain from proceeding further on this matter until the issue is resolved by the hearing justice.  Following the hearing justice’s privilege determination, any party in interest may request the RIDE hearing officer to reopen the evidence to receive any testimony from the attorneys that has been deemed to be nonprivileged by the hearing justice. In the event that the administrative proceedings result in a final judgment under the APA, an aggrieved party may claim the hearing justice’s decision on the attorney-client privilege as error in a petition for a writ of certiorari under G.L. 1956 § 42-35-16.

A dissent would find the issue non-ripe.

I must respectfully dissent from the majority’s opinion because I believe that the issue before the Court is not ripe due to the fact that an appeal to the Council on Elementary and Secondary Education remains pending; and, if James Viner prevails in that appeal, it would render the instant case entirely moot. Indeed, the majority itself concedes that “the school committee’s petition to quash may not have been ripe for review” and that review of such interlocutory rulings of administrative agencies should be “sparingly exercise[d] * * *.” (Internal quotation marks omitted.) It is my definite belief that, in the instant case, this Court should follow “our usual policy of not opining with respect to issues about which we need not opine * * *.” Grady v. Narragansett Electric Co., 962 A.2d 34, 42 n.4 (R.I. 2009)

The decision of the Commissioner of Education is linked here. 

It may well be that, as the Principal told the School Committee, she and her “new administrative staff” had “erred on the side of caution” and “asked the attorneys to come in and make sure we were doing something that was totally hands off so it could be a very fair investigation.” See ¶ 30, supra. Yet, the evidentiary record indicates that this “totally hands off” approach was taken to an inappropriate extreme. Indeed, it appears from the record that everybody in charge – the private attorneys that were hired, the Principal and the Superintendent– just assumed that the various sometimes contradictory allegations made by the five students whose interviews were contained in the Viner Report were accurate, and failed to draw their own conclusions based upon competent evidence. Indeed, as noted, the author of the Report did not herself come to any of her own conclusions as to the credibility of those students who were interviewed, and did not even speak with many of the students who testified before the undersigned, or even to Mr. Viner.

Thus, as noted, the School Committee based its decision to suspend and dismiss a teacher who served without incident for twenty-two years without prior warning or gradual discipline based largely, if not entirely, upon the bare, contradictory allegations of five students, without the benefit of any meaningful evaluation as to their credibility or follow-up by the adults charged with doing so. By contrast, the undersigned did not find the students making the material allegations against Mr. Viner, i.e., R.J. and H.D., any more or less credible than the far greater number of students who testified that Mr. Viner was an “excellent teacher” who never used “vulgar language,” “sexual comments” or “sexual innuendo” in front of them. See ¶¶ 48-49 and notes 20-21, supra.

In addition, contrary to the School Committee’s inference that Mr. Viner’s decision not to testify at its December 7, 2015 evidentiary hearing should be held against him, see School Committee’s Supp. Mem. at 3-4, the decision, rather than evidencing any consciousness of guilt, was more likely a tactical response to the School Committee’s failure to more specifically identify the charges and evidence against him. And little time need be spent addressing the allegation in the Statement of Cause that Mr. Viner “encourage[d] students to cheat on exams,” see Petitioner’s Ex. 1 at 3, as: (a) Mr. Viner’s testimony flatly denying the allegation, see ¶ 52(b), supra, was not rebutted; and (b) the Principal made clear that there was “no link” between the alleged cheating on exams and the alleged sexual harassment. See June 10 Tr. at 119

The order suspending and terminating the teacher is attached at the beginning of the link. (Mike Frisch)

Implied Waiver Of Attorney-Client Privilege

The Tennessee Court of Appeals affirmed an order compelling disclosure of privileged communications on an implied waiver theory.

This interlocutory appeal arises out of an action in which two companies brought suit against their former attorney for legal malpractice. The attorney moved for summary judgment as to one client’s claim, contending that the claim was barred by the statute of limitations; the client responded that it learned of its cause of action within one year of the assertion of the claim. The attorney then sought through discovery to have the former client produce communications from the client’s new counsel; the client declined to produce the communications, taking the position that they were protected by the attorney client privilege. The attorney moved the trial court to compel the client to produce the communications, and the court granted the motion, holding that the client impliedly waived attorney-client privilege in asserting that the client discovered the cause of action within the year preceding the assertion of the claim. Discerning no error, we affirm the trial court’s holding.

On implied waiver

Relative to the three conditions for determining whether BNL impliedly waived the attorney-client privilege, the trial court held:

This Court concludes Plaintiffs’ assertion of the discovery rule ultimately led to Plaintiffs’ assertion that the relevant documents are protected by attorney-client privilege. Although statute of limitations is an affirmative defense under Tennessee law, and Defendants bear the burden of proof, it was Plaintiffs’ assertion of the discovery rule in response that ultimately put Plaintiffs’ knowledge, and thereby Plaintiffs’ privileged communications, at issue in the current dispute.

The Court concludes that Plaintiffs put their privileged information at issue by pleading the discovery rule. . . . by pleading ignorance of its cause of action against Defendants, Plaintiffs have made “what Plaintiffs knew and when Plaintiffs knew it” the dispositive issue of this case.

In addition, Defendants have no other way to obtain information vital to its defense. Defendants assert Plaintiffs claim was time-barred, because Plaintiffs complaint was filed more than one year after Plaintiffs became aware of Defendants behavior giving rise to the cause of action. Plaintiffs’ assertion of the discovery rule—Plaintiffs did not know and could not have reasonably known its cause of action against Defendants—makes Plaintiffs’ actual or constructive knowledge vital to Defendants’ argument that Plaintiffs did know of its claim more than a year in advance of Plaintiffs’ filing.

The court

Upon our review, we do not discern any error in the portion of trial court’s holding that “Plaintiffs’ actual or constructive knowledge [is] vital to Defendants’ argument that Plaintiffs did know of its claim more than a year in advance of Plaintiffs’ filing.”

(Mike Frisch)

Referral Relationship Between Plaintiff's Counsel And Treating Doctor Protected by Privilege

A divided Florida Supreme Court held that the attorney-privilege protects from disclosure the referral relationship between a law firm and treating doctors in a personal injury claim.

We have for review the decision of the Fifth District Court of Appeal in Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 163 So. 3d 1240 (Fla. 5th DCA 2015), in which the district court certified conflict with Burt v. Government Employees Ins. Co., 603 So. 2d 125 (Fla. 2d DCA 1992), regarding whether the attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we conclude that the question implicates a confidential communication between the attorney and the client and is therefore protected. Accordingly, we quash the decision of the Fifth District and approve the decision of the Second District Court of Appeal. 

The case involves a slip-and-fall

During discovery of this “relatively routine trip-and fall case,” Central Florida Young Men’s Christian Association, Inc. (YMCA), repeatedly attempted to discover the relationship between Worley’s law firm, Morgan & Morgan, and her treating physicians.

Analysis

The issue before this Court is whether the attorney-client privilege protects a plaintiff from disclosing that an attorney referred him or her to a doctor for treatment, or a law firm from producing documents related to a possible referral relationship between the firm and its client’s treating physicians. However, resolution of this issue will require us to first consider another issue: whether the financial relationship between a plaintiff’s law firm and the plaintiff’s treating physician is discoverable. In its decision approving the order, the Fifth District relied on district court decisions that have held that the financial relationship between a law firm and a plaintiff’s treating physician is discoverable, pursuant to our decision in Boecher, if evidence of a referral relationship can be shown...

Allowing further discovery into a possible relationship between the physician and the plaintiff’s law firm would only serve to uncover evidence that, even if relevant, would require the production of communications and materials that are protected by attorney-client privilege. As mentioned previously, courts that have allowed this type of discovery have first required evidence of a referral relationship between the law firm and the treating physician...

Respondent argues that the lawyer’s act of referring a client to a treating physician is an underlying fact, not a communication. We disagree. That the plaintiff was treated by a particular doctor is an underlying fact. That the plaintiff received a referral to see a particular doctor is also an underlying fact. However, whether the plaintiff’s attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and attorney, and we resist any attempts to separate the contents of communications to distinguish “facts” from privileged information. To hold otherwise would severely undermine the purpose of the privilege, which is to encourage the free flow of information between attorneys and their clients.

Justice Polston dissented

The majority holds that Central Florida YMCA is shielded, based on attorney-client privilege, from discovering whether Worley’s lawyers, Morgan & Morgan, referred her to treating medical providers. The discovery is directed to the referral relationship between Morgan & Morgan and the providers, including how much money the providers received from the firm and its clients. The financial relationship between a law firm and medical provider, including number of referrals, frequency, and financial benefit, is admissible evidence regarding the bias of a testifying medical provider. Accordingly, this information is relevant and subject to discovery.

The trial court ordered Worley to produce billing agreements between Morgan & Morgan and her treating medical providers and information from cases in which her firm referred other clients. On appeal, the Fifth District Court of Appeal in Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 163 So. 3d 1240 (Fla. 5th DCA 2015), correctly allowed discovery of this information under the existing rules of discovery, as balanced with other interests. I would approve its excellent analysis.

A lawyer’s referral of a client to a treating medical provider is for the purpose of the client’s medical care, not in furtherance of legal services. Therefore, the referral itself is not protected as an attorney-client privileged communication. 

Justices Canady and Lawson joined the dissent. (Mike Frisch)

No Suit Where Attorney Uses Confidential Information To Defend Against Former Client's Claims

The Massachusetts Supreme Judicial Court has held an action following the settlement of a legal malpractice claim alleging violation of confidentiality in defending the malpractice action was not sustainable

Attorney H. Ernest Stone represented John Doe in a criminal case and a related tort action. In the course of that representation, Doe relayed certain information to Stone that all parties indisputably agree was subject to attorney-client privilege. After the tort action ended in a default judgment against Doe, Doe brought a legal malpractice action against Stone based on his handling of the tort case. The malpractice action concluded via a settlement agreement. Doe next filed a complaint in the Superior Court alleging that in defending the malpractice action, Stone misused the privileged information he received during his earlier representation of Doe. Doe named as defendants Stone; George Rockas, the attorney who represented Stone in the malpractice action; and American Guaranty and Liability Co. (American), Stone's legal malpractice insurer. The defendants filed motions to dismiss, raising a wide variety of defenses. See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). The judge allowed the motions and judgment entered dismissing the complaint. Doe appeals. Because we agree with the motion judge that in bringing the malpractice action, Doe waived the privilege that otherwise applied to the information at issue, we affirm. Resolving the case on that ground, we have no occasion to reach the defendants' other defenses.

Held

 As a matter of law, the Foster 2 issues were relevant to the malpractice action, and they are not rendered irrelevant by Doe's conclusory suggestions that Foster 2's whereabouts would have remained unknown. It follows that by bringing the malpractice action, Doe waived his privilege with respect to information related to Foster 2. Accordingly, none of the defendants could be liable for their use of that information in defending the malpractice action, and their motions to dismiss were properly allowed.

(Mike Frisch) 

Discovery Of Work Done For Other Clients Permitted In Legal Malpractice Case

The Rhode Island Supreme Court decided a case where the court had granted review of the following question

“May a former client in a legal malpractice action against his former attorney properly compel discovery from his former attorney and law firm related to documents the attorney prepared for the attorney’s other clients in order to gain evidence to prove subsequent remedial measures in the legal malpractice action?”

The unhappy client sued and sought discovery

This case came before the Supreme Court on November 2, 2016, on certiorari from the Superior Court, seeking review of a discovery order entered on October 2, 2014, compelling production of any antenuptial or postnuptial agreements drafted, prepared, or negotiated by the defendant, Richard A. Boren (Attorney Boren), from 2005 through 2009 and in 2013, while he was employed at the defendant law firm, Visconti, Boren & Campbell, Ltd. (VBC), (collectively, defendants). Before this Court, the defendants contend that the documents sought exceed the scope of permissible discovery, as provided by Rule 26 of the Superior Court Rules of Civil Procedure, and are protected under the attorney-client privilege, the marital privilege, and the work product doctrine. For the reasons discussed herein, we affirm the discovery order in its entirety.

The story

In 2000, plaintiff, Sergio A. DeCurtis (plaintiff or DeCurtis), retained Attorney Boren to draft an antenuptial agreement. DeCurtis and his then-fiancée, Michelle Tondreault (Tondreault), executed the antenuptial agreement on March 22, 2000, and were married on March 28, 2000. They did not live happily ever after, and Tondreault filed for divorce in 2005.

The divorce petition was dismissed in a negotiated settlement that required DeCurtis and Tondreault to execute a postnuptial agreement. Attorney Boren drafted the postnuptial agreement for the couple, which was executed in November of 2005. The marriage nonetheless failed.

The plaintiff claims that the six antenuptial and postnuptial agreements drafted by Attorney Boren are discoverable under Rule 26(b)(1) because they are relevant to demonstrate if and when Attorney Boren undertook subsequent remedial measures in the drafting of antenuptial and postnuptial agreements. Unlike many other jurisdictions, subsequent remedial measures are admissible in Rhode Island to prove negligence “[w]hen, after an event, measures are taken which, if taken previously, would have made the event less likely to occur...

In the case before us, plaintiff initially retained Attorney Boren in 2000, and the antenuptial agreement between plaintiff and Tondreault was drafted in that same year. In 2005, Attorney Boren drafted a postnuptial agreement, which affirmed the terms stated in the prior agreement. The instant malpractice suit arises out of language that was included in both documents. As a result, we are of the opinion that the triggering “event” for purposes of Rule 407 is the drafting of the later document, the 2005 postnuptial agreement. Accordingly, any measures taken after 2005 would be relevant under Rule 407 and, therefore, discoverable under Rule 26(b)(1)

The attorney-client, work product and marital privileges did not prevent discovery

we are of the opinion that defendants do not have standing to assert the attorney-client privilege on behalf of their clients in this context. In this case, the documents are not confidential communications such that third parties were privy to the discussions surrounding the documents and their execution, thus vitiating the privilege. We conclude that the Superior Court justice amply placed safeguards on the order by requiring redaction and limiting the purpose for which the documents could be used. Adequate redaction will eliminate any sensitive or identifying information and prevent the disclosure of any confidential interests contained in the documents...

The defendants’ argument that the marital privilege applies in this context is unavailing. The parties to the six agreements are not testifying, and the production of executed contracts is not testimonial in any way. Furthermore, the parties were not married at the time the antenuptial agreements were executed. The marital privilege focuses on communications between a husband and wife, such that the communications must occur “during [the] marriage.”

Conclusion

In complying with this discovery order, the defendants are directed to adequately redact all confidential information and take any additional steps they deem reasonably necessary to ensure confidentiality, including contacting their clients should that be deemed necessary. To the extent that the clients wish to assert the attorney-client privilege, the Superior Court should welcome those motions and use our discussion herein as guidance in rendering a decision.

Finally, we anticipate that the trial justice will act as an additional gatekeeper and conduct an in camera review of the documents after adequate redaction by the defendants, in order to ensure that all confidential and identifying information has been removed.

The court thus affirmed the discovery order. (Mike Frisch)

Privilege Assertion Subject To Immediate Appellate Review

Kathleen Maloney and Dan Trevas summarize another Ohio Supreme Court decision

A court order compelling the production of materials, which would allegedly breach the confidentiality guaranteed by attorney-client privilege, is a final, appealable order, which can be subject to immediate review by an appellate court, the Ohio Supreme Court ruled today.

The Court also drew the same conclusion today in a second case with similar discovery issues but involving grand jury proceedings rather than civil actions.

In the civil case, the Court determined that because the Cleveland Clinic and Cleveland Clinic Health System “plausibly alleged” that attorney-client privilege would be violated by the release of a hospital report about a 2012 slip-and-fall incident, the trial court’s decision compelling disclosure was a final, appealable order. Allowing an appeal only after the document is disclosed and the trial court issues final judgment in the case would not provide an adequate remedy, the lead opinion written by Justice Judith Ann Lanzinger stated.

However, claims during discovery asserting certain other protections – such as attorney work-product doctrine – may require more than a mere statement that materials are privileged and instead may require a showing that an adequate remedy is not available after a court’s final judgment, Justice Lanzinger wrote.

Justice Sharon L. Kennedy and two other justices concurred only in the Court’s judgment that the trial court’s order to provide the hospital incident report was final and appealable. In a concurring opinion, Justice Kennedy disagreed with the distinctions made in the lead opinion between attorney-client privilege and attorney work product. In her view, a court order requiring the release of allegedly privileged documents, whether believed to be protected by attorney-client privilege or by attorney work-product doctrine, is always a final, appealable order because the release of the document is an action that cannot be undone.

As the lone dissenter, Justice Paul E. Pfeifer countered that the Court has improperly characterized the hospital incident report a product of attorney-client privilege, when it was simply a business record.

Woman Sues After Fall in Hospital, Requests Report
In March 2014, Darlene Burnham filed a civil lawsuit against the clinic and some of its employees, alleging that she slipped and fell in July 2012 in her sister’s hospital room. Burnham claimed that a clinic employee poured liquid on the floor and did not alert her to the hazard.

Among other information, Burnham asked during discovery for the incident report the clinic had created after she fell. The clinic maintained the report was shielded from discovery based on various protections, including attorney-client privilege.

The trial court reviewed materials filed under seal, including the hospital report and briefs from both sides on the issue, and then ordered the clinic to provide the report to Burnham.

The clinic appealed to the Eighth District Court of Appeals, which dismissed the matter because it concluded it had no jurisdiction to review the appeal based on the 2015 Ohio Supreme Court decision Smith v. Chen. The Eighth District stated the appeal was not made from a final, appealable order because the clinic had not established that it would be harmed by the disclosure of the incident report in the manner stated in R.C. 2505.02(B)(4). The statute explains when orders are final and can be appealed.

The hospital filed an appeal with the Ohio Supreme Court, which agreed to consider the issues.

Court Clarifies Chen
Justice Lanzinger noted that the Court accepted this case in part to clarify Chen, in which the Court reviewed a provision in R.C. 2505.02(B)(4) to decide whether a discovery order involving a surveillance video described as attorney work product was final and appealable.

She reasoned that the Court’s ruling in Chen was limited because Chen did not meet the requirement of R.C. 2505.02(B)(4)(b), which states an appellant must establish that he “would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.”

“As some confusion seems to exist over the breadth of that decision, we limit it solely to its facts,” she wrote. “We see no need to overrule the case altogether despite the impassioned arguments within the lengthy concurring opinion.”

She explained that the Chen decision was not broad or expansive, but instead dealt only with the attorney work-product doctrine.

“We now clarify that Chen did not apply to the attorney-client privilege,” she stated.

Attorney-Client Privilege vs. Attorney Work-Product
Justice Lanzinger wrote that differences between the attorney-client privilege and the attorney work-product doctrine also explain why Chen does not control the outcome of this case. She explained that the main purpose of the attorney-client privilege is to promote open communication between attorneys and clients, while work-product protections “prevent an attorney from taking undue advantage of his adversary’s industry or efforts,” citing a court rule for discovery in civil cases.

Unless a waiver or exception applies, attorney-client privilege gives complete protection. However, based on judicial rules and common law, the work-product doctrine may provide protection from discovery, Justice Lanzinger wrote. Although the privilege and the doctrine could apply to the same material, the protections do not overlap fully, she noted.

“Exposure of the information that is to be protected by attorney-client privilege destroys the confidentiality of possibly highly personal or sensitive information that must be presumed to be unreachable,” she explained.

“But the same guarantee of confidentiality is not at risk with an attorney’s work product,” she continued. “[A]ny harm from disclosure would likely relate to the case being litigated, meaning that appellate review would more likely provide appropriate relief. … [I]t does not necessarily involve the inherent, extrajudicial harm involved with a breach of the attorney-client privilege.”

She added that trial courts should explain their reasons when ordering materials to be produced in discovery because parties may claim many types of privilege when arguing against disclosure.

In this case, “[b]ecause the [c]linic raised a colorable claim that its report was protected by the attorney-client privilege, the court’s order compelling disclosure of that report was a final, appealable order,” Justice Lanzinger wrote. The Court returned the case to the court of appeals, ordering it to evaluate whether the trial court’s decision to release the hospital incident report was made in error.

“Contrary to the dissent’s view, we are not characterizing the requested material as being covered by the attorney-client privilege, but are merely requiring appellate review of the trial court’s decision,” Justice Lanzinger noted.

Concurring Justices Dispute Work-Product Distinction
Justice Kennedy explained that she agrees that the trial court’s order to give Burnham the hospital report was a final, appealable order. However, she described the lead opinion’s analysis as “incomplete and disingenuous.”

The lead opinion “manufactures an artificial distinction” between the attorney-client and work-product privileges, then creates a new rule and distinguishes Chen to try to salvage that decision, she maintained.

Justice Kennedy stated that the lead opinion’s conclusion fails to “recognize the common-law origins of the work-product doctrine and that some of the protection provided by the work-product doctrine exceed the protection of [the Civil Rules]. The conclusion also elevates statutory privileges over the work-product doctrine set forth in [the Civil Rules], even though the Civil Rules are promulgated pursuant to the authority conferred upon the court by the Ohio Constitution.” 

She wrote that the myopic nature of the lead opinion has diminished the status of the work-product privilege, which is essential to protecting the attorney-client relationship.

“With this decision, the court opinion systematically declares that a document allegedly privileged under the work-product doctrine does not meet the standard established in R.C. 2505.02(B)(4)(b) unless some special showing is somehow made,” her concurring opinion stated. “Given that Civ.R. 26 provides protection to a broad class of documents and materials, the release of privileged documents necessarily puts the party protecting these materials into the category of those ‘not … afforded a meaningful or effective remedy by an appeal following final judgment.’ A released document never regains privileged status. The ‘proverbial bell cannot be unrung.’”

Justice Kennedy added, “Limiting Chen as applying only to an asserted privilege for work-product materials and not to materials covered by attorney-client privilege is without basis, and the folly of that exercise will been seen in the litigation that is sure to follow.”  Therefore, she stated that the Court should overrule Chen and restore the stability and predictability to the law as it existed before that ruling. 

Justices Terrence O’Donnell and Judith L. French joined Justice Kennedy’s opinion.

Dissent Maintains Report Was Not Privileged
In his dissent, Justice Pfeifer described this lawsuit as a “run-of-the-mill, wet-floor, slip-and-fall case.” He took issue with the Court’s elevation of the hospital’s incident report to a document protected by attorney-client privilege – “to protect the Cleveland Clinic from what exactly — the disclosure of its top-secret ratio of water to Mop & Glo?”

He noted that the trial court reviewed the report in camera and decided it was not privileged. Describing the report as a business record that involved no interaction between the hospital and its counsel, he concluded the trial court decision can be reviewed through the typical appeals process.

2015-1127. Burnham v. Cleveland Clinic, Slip Opinion No. 2016-Ohio-8000.

View oral argument video of this case.

GRAND JURY PROCEEDINGS
Court Also Addresses Grand Jury Orders

The Court also addressed the appealability of orders compelling document production in the context of grand jury proceedings.

In a separate opinion authored by Justice Lanzinger, the Court found that an order enforcing a grand jury subpoena and ordering the production of allegedly privileged information is a final order that can be appealed.

The decision resolves a conflict among a recent Eighth District Court of Appeals decision and opinions from 2002 and 2003 by the Fourth and Tenth District appellate courts. All the documents in the Eighth District case are sealed, and none of the parties are identified.

Company Seeks to Shield Documents from Grand Jury
A Cuyahoga County grand jury issued subpoenas to individuals associated with the appellants in the case. The recipients moved to quash the subpoenas, which sought documents and testimony, arguing the information was protected by attorney-client privilege, the “attorney work-product doctrine,” and the “common-interest doctrine.” The trial court overseeing the grand jury denied the motions, finding the materials were no longer or never were protected by a privilege.

The recipients appealed to the Eighth District, which declined to address the matter. The appellate court reasoned that grand jury proceedings are not “actions” under R.C. 2505.02(A)(3) and that an order requiring the production of privileged information is not a “provisional remedy” subject to appeal under R.C. 2505.02(B)(4). The Eighth District also certified its decision was in conflict with the Fourth and Tenth districts and the Supreme Court accepted the case to resolve the conflict.

Grand Jury Order Subject to Appeal 
Justice Lanzinger explained the term “action” is not defined in R.C. 2502.02. To determine the meaning of the term, the Eighth District turned to the definition of “action” in R.C. 2307.01, which defines it as a proceeding that ends with a judgment or decree. Because grand jury proceeding are investigatory with no judgment or decree, the Eighth District concluded they are not actions that can be appealed.

Justice Lanzinger noted R.C. 2307.01 pertains to civil cases and not criminal proceedings. She wrote the Fourth and Tenth districts took a different approach, finding the motion to quash a grand jury subpoena is an “ancillary action”that aids a grand jury. That reasoning implies that a grand jury proceeding is a “provisional remedy” under the law, which then subjects the proceedings to the test in R.C. 2505.02(B)(4) to determine if an affected party can appeal.

While the Ohio Supreme Court has never addressed whether grand jury proceedings are actions, Justice Lanzinger cited the Court’s 1980 Bernbaum v. Silverstein decision, which found grand jury proceedings are “ordinary proceedings” similar to the proceedings of criminal courts.

“The proceedings involve the regular process of our criminal procedure and end in the grand jury’s production of either a no bill decision or true bill decision, which will then result in a judgment for either the defendant or the state. Under the broader definition of ‘action’ supplied in Bernbaum, a grand jury proceeding constitutes an action,” she wrote.

Justice Lanzinger also noted the Court’s decision applies only to claims of documents protected by attorney-client privilege, and not to claims of work product or common-interest doctrine.

“Our conclusion that an order enforcing a grand jury subpoena and ordering of allegedly privileged information is final and appealable thus fits within the framework of our criminal procedure, for the only way to prevent grand juries from potentially violating a privilege and forcing parties to disclose privileged information is to allow those parties the opportunity to appeal before divulging that information,” she concluded.

Chief Justice O’Connor and Justices Pfeifer and O’Neill joined Justice Lanzinger’s opinion. Justice O’Donnell concurred in judgment only and noted that he concurred in the conclusion that the order enforcing a grand jury subpoena for the production of allegedly privileged information is a final order.

Concurring Justice Maintains Ruling Will Cause Confusion
Justice Kennedy issued a separate concurring opinion in judgment only, stating she agreed with the majority that the grand jury proceeding constitutes an action. However, she maintained the majority relies on the Burnham decision, which distorts the significance of the attorney work-product doctrine, and will cause confusion for trial courts and attorneys.

Justice Kennedy stated that the court’s opinion continues the disservice to the bar and bench begun in Chen: “As a result of this new legal architecture, trial courts must now consider materials protected by attorney-client privilege in a separate framework from those protected by work-product privilege, based on the source to the privilege.” 

She also wrote that the majority’s broad syllabus language raised many questions. For example, does a litigant merely need to allege that the material sought contains privileged information? Does a trial court need only determine whether the privilege was adequately “alleged”? 

In again concluding that Chen should be overruled, Justice Kennedy stated that “the parsing of the term ‘privilege’ in Burnham typifies the problem we have brought upon ourselves by failing to recognize that Chen was wrongly decided

Justice French joined Justice Kennedy’s opinion.

2015-1181 and 2015-1182. In re Grand Jury Proceeding of John Doe, Slip Opinion No. 2016-Ohio-8001.

View oral argument video of this case.

(Mike Frisch)

Crime Fraud Exception Permits Civil Discovery To Go Forward

The Maine Supreme Judicial Court has in the main affirmed findings that a defendant in civil litigation could not claim attorney-client privilege with respect to certain communications that had included a third party.

Paul Coulombe and two LLCs under his control—PGC1, LLC, and PGC2, LLC—appeal from discovery orders entered in the Business and Consumer Docket (Murphy, J.) that required the disclosure of specific communications over the assertion that those communications were protected by the attorney-client privilege. Coulombe contends that the court erred in determining that (A) Coulombe’s communications with his attorney that included a third party were not privileged and (B) the crime-fraud exception to the attorney-client privilege applied to allow the disclosure of other communications between Coulombe and counsel. We affirm the judgment except with respect to one communication that we conclude the trial court must consider further on remand.

The case involves a broken promise to hire the plaintiff to manage a golf course

Relevant here, Harris alleged that Coulombe, with assistance from his attorneys, Hawley Strait and John Carpenter, was secretly seeking a different golf course manager while Coulombe was simultaneously reassuring Harris that Harris was to manage the golf course. Harris alleged that it did not learn until March 2013—after ceasing independent efforts to purchase the Club, selling nearby JJR property to Coulombe at a discount, and beginning to manage Coulombe’s golf course after Coulombe purchased the Club—that someone else, Dan Hourihan, would be hired as the manager of the course.

The court applied the crime-fraud exception

 In this context, fraud must be understood broadly “as [a] generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick,cunning dissembling, and any unfair way by which another is cheated.”

... Ultimately, in determining what must be proved for the crime-fraud exception to apply in Maine, we must balance the need for clients to have the protection of privileged communications with their attorneys in order to obtain effective representation regarding current legal concerns or any past wrongdoing, against the need to prevent attorneys in the honorable practice of law from being used to perpetrate ongoing or future wrongdoing. Striking the proper balance is critical in assuring that attorneys can serve their clients effectively without having their legal services used for fraudulent or criminal purposes.

In order to strike that balance, and to maintain the high standards of the legal profession, the focus in determining whether the fraud portion of the crime-fraud exception applies must be on the elements within the control of the client that involve either the engagement in or the planning of a fraud. Because proof of planned fraudulent activity can result in the exception being applied, fraudulent activity may, for purposes of the crime-fraud exception to attorney-client privilege, be activity that, although deceptive and fraudulent, falls short of the fully realized civil tort of fraud.

Although proof of the complete tort is not necessary for the exception to apply, a party seeking to establish that a client was engaged in or planning fraudulent activity must offer evidence of the client’s intention and expectation that the party alleging injury would rely on the client’s misrepresentations, omissions, or other deceptive actions...

 Here, the court’s findings demonstrate that it applied the proper legal test. It found, for purposes of the discovery motion, that Harris had demonstrated by a preponderance of the evidence that (a) Coulombe was engaged in or planning fraudulent activity when the attorney-client communications took place and (b) Coulombe’s communications with counsel were intended by him to facilitate or conceal the fraudulent activity.

The evidence was sufficient for discovery with a caveat

 There is one possible exception to our decision affirming the trial court’s determination, however. Although Coulombe does not specifically argue that any particular pages of the materials submitted for the court’s review were improperly included in the court’s disclosure order, one email exchange appears to be unrelated to Coulombe’s dealings with Harris and may have been inadvertently ordered disclosed. We therefore remand for the court to clarify whether it intended to include that email exchange, which appears at pages 15626 through 15633 of the materials submitted for review, in its order requiring disclosure.

 

"Th[e] Type Of Shenanigan That Judicial Estoppel Cuts Off At The Knees" But With A Dissent

The West Virginia Supreme Court of Appeals denied a writ of prohibition brought by a criminal defendant to prevent disclosure of a report prepared at the behest of the defendant and her counsel.

The limited record in this proceeding indicates that the Petitioner was charged...with two counts of child neglect creating a risk of injury, and two counts of child neglect causing injury.  In September of 2015, the Petitioner pled guilty to all the charges. Prior to the scheduled sentencing hearing, a psychological evaluation and risk assessment was arranged for the Petitioner by defense counsel. To facilitate the psychological assessment, the Petitioner wanted the psychologist to review the medical records of her two children, which had been generated during a prior child abuse and neglect proceeding. The Petitioner also wanted to have her attorney discuss with the psychologist the specifics of her case and other confidential information that involved the victims...

The Petitioner underwent the psychological assessment. After the Petitioner had the psychological assessment done, she refused to disclose the report to the trial court and State. A hearing was held over the Petitioner’s refusal to disclose the psychological report. At the end of the hearing, the trial court ordered the Petitioner to disclose the report to the State and court. The Petitioner thereafter filed this proceeding to prevent enforcement of the disclosure order.

The court majority was sharply critical of defense counsel

In this proceeding the Petitioner contends that disclosure of her psychological report would violate the attorney-client privilege and work product doctrine. Assuming, without deciding, that the attorney-client privilege and work product doctrine would prevent disclosure of the psychological report, we find that the doctrine of judicial estoppel prevents the application of those doctrines...

After obtaining a favorable ruling from the trial court allowing disclosure of confidential information to the psychologist, in exchange for a specific promise to turn over the psychological report for sentencing purposes, the Petitioner now asserts for the first time that the psychological report is protected from disclosure by the attorney-client privilege and the work product doctrine. We are gravely concerned by the Petitioner’s blatant attempt to insult the integrity of the judicial process by pretending that her promise to the court did not exist. It is precisely this type of shenanigan that judicial estoppel cuts off at the knees. “The doctrine estops a party from playing ‘fast-and-loose’ with the courts or to trifle with the proceedings.”

...The Petitioner came to the trial court with a promise to disclose the psychological report to the court, if the court allowed the Petitioner to reveal certain information to the psychologist. In making this promise to the court, the Petitioner implicitly waived any attorney-client privilege and work product protections the psychological report may have had. However, now that the report has been generated, the Petitioner has changed her mind about disclosure and is seeking the protection of those privilege doctrines. We will not allow this.

Justice Benjamin dissented

The criminal defense bar ought to be able to confidently develop expert services and opinions on behalf of their clients for sentencing purposes without fear that the information thereby derived, if proved harmful instead of useful, will fall into the hands of the prosecution. The adversary process and its attendant safeguards, including time-honored privileges and the work-product doctrine, does not cease to exist once a criminal defendant has pleaded guilty or is found to be so. Unfortunately, the majority’s well-intentioned efforts in this instance to improve the flow of relevant information to the circuit court will, in the longer term, perversely and inevitably impede the truth-seeking function of sentencing proceedings and render them less accurate by chilling the efforts of criminal defense lawyers to effectively advocate for their clients.

(Mike Frisch)

Confidentiality Trumps History

Should the interests of history create an exception to a lawyer's duty of confidentiality?

No, according to an opinion of the Maine Professional Ethics Committee

Bar Counsel has inquired whether, and under what circumstances, a law firm may consider donating old, inactive legal files that may have historical significance to a library or educational institution. As a matter of background, the attorney holds a variety of client files, many of which were generated by a single family, dealing with a public undertaking of significant historical interest in the attorney’s area. The files range back as early as the mid- to late 1800s, and run through the early to mid-1900s. The single family referenced above has indicated their consent, but for many of the other files, both the clients as well as the attorneys who were involved in the legal work generating the files are long since deceased, and it may be difficult to find a representative of either the attorneys or the families. Given the passage of time, and the historical import of the files, may the firm turn over these client files to a library or educational institution?

Analysis

The obligations imposed by Rule 1.6 extend indefinitely. They survive the death of the attorney, as well as the client, and may continue after the dissolution of a corporate client. Absent informed consent from the affected clients or some other applicable exception, a lawyer may not divulge information that constitutes a “confidence” or “secret” as defined above. This would mean that an individualized, document-by-document assessment would need to be undertaken in order to determine whether the particular document and the information within it constituted a “confidence” or “secret” of the client at the time it was made.

The Commission is not unmindful that this opinion may well restrict information that may have independent historical value. However, those values, though significant, do not trump the attorney’s obligation to keep the client’s confidences and secrets confidential. See, e.g., Oregon Formal Opinion 32005-23 (revised 2014); Virginia Legal Ethics Opinion #1307, dated November 13, 1989; Opinion #128, Committee of Legal Ethics of the District of Columbia Bar, dated July 19, 1983; and Oklahoma Bar Association Ethics Opinion #301, adopted June 16, 1983.

If the attorney believes that the files may contain a variety of matters that do not constitute confidences or secrets, the attorney nonetheless must make that determination consistent with Rule 1.6(d). A waiver by the family, the Personal Representative of an estate (to the extent one still exists) or similar person appearing to stand in the shoes of a deceased client is not sufficient to constitute a waiver of the attorney’s obligations of confidentiality. See Professional Ethics Commission Advisory Opinion # 192: Deceased client: Confidential information requested by Personal Representative, dated June 20, 2007.

We would note that to the extent the materials maintained by the attorney and that attorney’s law firm include files that are clearly segregated and marked in a manner that would make them non-legal (for example, copies of ancient and public documents, information that was directed to others outside of the attorney/client privilege, such as correspondence to third parties, and similar documents), those items may fall outside of the definition of “confidence” or “secret.” However, the attorney must be mindful, in making an analysis under Rule 1.6(d), that the determination of whether a client considered materials to be a “confidence” or “secret” is a subjective one unique to the client. Absent the attorney being able to make a reasonably reliable determination that the client did not consider the information to be confidential, disclosure is prohibited by Rule 1.6. See Board of Overseers of the Bar v. Turesky, File No. 93-S-124, Report dated April 26, 1995.

Lastly, it should be noted that in the event that a review is contemplated, it must be undertaken by the attorney and at that attorney’s direction. It would not be proper to allow any non-lawyer or other personnel not affiliated with the lawyer’s practice to review the files regardless of whether the outside party (such as a representative of a charitable or educational institution) agreed to hold any questionable materials confidential. See Virginia Legal Ethics Opinion 1307, supra.

Conclusion

In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client “confidences” or “secrets,” the attorney may not divulge the confidential materials in that attorney’s possession despite the passage of time and the potential historical significance of the materials.

(Mike Frisch)

Privilege When Combining Business And Legal Advice

A decision today from the Connecticut Supreme Court

Clients call upon attorneys to provide advice on a range of matters, some that may be purely legal, some that may be purely nonlegal, and others where the line between legal and nonlegal advice is more nuanced. This case provides an opportunity to address the circumstances under which communications relating to both nonlegal and legal advice may be covered by the attorney-client privilege.

The plaintiff, Michael C. Harrington, appeals from the trial court’s judgment dismissing his appeal from the decision of the Freedom of Information Commission, which concluded that e-mails that the plaintiff sought from the defendant Connecticut Resources Recovery Authority fall within the exemption from disclosure under the Freedom of Information Act (act) for communications subject to the attorney-client privilege. See General Statutes § 1-210 (b) (10). We conclude that the commission failed to apply the proper standard for assessing the communications at issue, which include communications that the commission characterized as containing a mix of business and legal advice. Therefore, the case must be remanded to the commission for further proceedings.

 The court

Although the plaintiff raises numerous arguments, our threshold, and ultimately dispositive, consideration is the proper approach for assessing the applicability of the attorney-client privilege when business or other nonlegal professional advice is provided. This is a legal rather than factual question. We therefore must consider whether the commission acted unreasonably, arbitrarily, illegally, or in abuse of its discretion in concluding that all of the communications that the defendant withheld are covered by the attorney-client privilege...

Just as this court has never specifically distinguished business advice offered by an attorney from legal advice, it has not addressed the application of the privilege to communications containing or seeking both legal and business advice, as was found to exist in the present case. The primary flaw in the commission’s approach to this question lies in its exclusive reliance on the ‘‘inextricably linked’’ standard...

When the legal aspects of the communication are incidental or subject to separation, the proponent of the privilege may be entitled to redact those portions of the communication.

Thus

 In the present case, the commission’s decision cited to cases from other jurisdictions that apply this standard, but it did not determine whether the primary purpose of the communications was seeking or providing legal advice. Nor did it consider whether incidentally privileged matters could be redacted to allow disclosure of nonprivileged matters. Indeed, Hunt stated that redaction would have been possible as to some documents, but she lacked sufficient time to do so. Our review of a sample of the communications reveals that proper application of these considerations undoubtedly would yield a different result as to a substantial number of the communications examined

The court remanded for further proceedings consistent with the opinion. (Mike Frisch) 

New York Limits Common Interest Doctrine

An attorney-client privilege decision from the New York Court of Appeals limits the common interest doctrine.

This discovery dispute involves certain attorney-client communications that defendant Bank of America Corporation and defendant Countrywide Financial Corporation shared when the two entities were in the process of merging. Generally, communications between an attorney and a client that are made in the presence of or subsequently disclosed to third parties are not protected by the attorney-client privilege. Under the common interest doctrine, however, an attorney-client communication that is disclosed to a third party remains privileged if the third party shares a common legal interest with the client who made the communication and the communication is made in furtherance of that common legal interest. We hold today, as the courts in New York have held for over two decades, that any such communication must also relate to litigation, either pending or anticipated, in order for the exception to apply...

The question presently before us is whether to modify the existing requirement that shared communications be in furtherance of a common legal interest in pending or reasonably anticipated litigation in order to remain privileged from disclosure, by expanding the common interest doctrine to protect shared communications in furtherance of any common legal interest. We adhere to the litigation requirement that has historically existed in New York...

We conclude that the policy reasons for keeping a litigation limitation on the common interest doctrine outweigh any purported justification for doing away with it, and therefore maintain the narrow construction that New York courts have traditionally applied

 The court reversed the order of the Appellate Division for the First Judicial Department.

 Justice Rivera dissented

Whether this privilege should extend to confidential communications between separately represented parties, in which they have a common legal interest in a transaction, not involving pending or reasonably anticipated litigation, is the question posed in this appeal, and one which I would answer in the affirmative under the circumstances presented here. Given that the attorney-client privilege has no litigation requirement and the reality that clients often seek legal advice specifically to comply with legal and regulatory mandates and avoid litigation or liability, the privilege should apply to private client-attorney communications exchanged during the course of a transformative business enterprise, in which the parties commit to collaboration and exchange of client information to obtain legal advice aimed at compliance with transaction-related statutory and regulatory mandates.

The attorney-client privilege is a long-standing exception to the general rule promoting discovery as part of the truth-finding process, and one tolerated because it serves the individual and societal goals of furthering the proper administration of justice by encouraging the free flow of information essential to legal representation. It has never been limited to client communications involving pending or anticipated litigation. Even so, the privilege is deemed waived where a client shares information with a third party, under circumstances that reflect the client's disinterest in the continued protection of the confidences. However, where parties to a merger seek to comply with legal requirements and agree to treat as confidential any exchanges of information made for purposes of seeking legal and regulatory advice to complete the merger, the parties cannot be assumed to have vitiated the private nature of the information, or to harbor an unreasonable expectation of privacy in these exchanges. Therefore, extension of the attorney-client privilege to these communications is fully in line with the goals of our common law and the needs of our complex system of commercial regulation.

 This decision will, as Justice Rivera's dissent suggests, likely have a significant impact on legal advice in commercial transactions. (Mike Frisch)

Common Business Interest Does Not Establish Tripartite Privilege

The North Carolina Court of Appeals has held that the attorney-client privilege was inapplicable when a successor in interest purchases assets

This appeal requires us to consider the common interest doctrine, which extends the attorney-client privilege to communications between and among multiple parties sharing a common legal interest. We hold that an indemnification provision in an asset purchase agreement, standing alone, is insufficient to create a common legal interest between a civil litigant indemnitee and a third-party indemnitor.

The case involves a rent dispute

The record reflects that when faced with a specific request for their communications with Blast, Defendants promptly asserted the attorney-client privilege. During the 11 February 2015 deposition, counsel for Plaintiff asked the deponent, Mid-Atlantic’s General Counsel Earl Acquaviva, to describe “all of the conversations that you have had personally with Blast or any representatives of Blast about this lawsuit.” Defendants’ counsel immediately objected on the basis of attorney-client privilege and advised the deponent not to answer. Plaintiff’s further attempts to probe the issue were all met with similar objections by Defendants’ counsel, and the deponent refused to answer such questions...

we hold that Defendants properly asserted the attorney-client privilege in a manner that is neither frivolous nor insubstantial and that this interlocutory appeal affects a “substantial right” of Defendants. We therefore deny Plaintiff’s motion to dismiss.

The tripartite privilege

The linchpin in any analysis of a tripartite attorney-client relationship is the finding of a common legal interest between the attorney, client, and third party. See Raymond, 365 N.C. at 100, 721 S.E.2d at 927 (tripartite attorney-client relationship existed between attorney, client, and benevolence organization due to the common interest of “protecting and promoting the livelihood” of the client). “[T]he parties must first share a common interest about a legal matter.” United States v. Aramony, 88 F.3d 1369, 1392 (4th Cir. 1996)

...To extend the attorney-client privilege between or among them, parties must (1) share a common interest; (2) agree to exchange information for the purpose of facilitating legal representation of the parties; and (3) the information must otherwise be confidential. Schwimmer, 892 F.2d at 243–244. Although prudent counsel would always put a representation agreement in writing, there is no requirement that the agreement be in writing.

...The indemnification provision in the asset purchase agreement requires Blast to defend and indemnify Defendants from “[l]osses incurred or sustained . . . on account of or relating to . . . the use of the [a]ssets by [p]urchaser and the operation of the . . . [h]ealth [c]lubs . . . .” This language, and the nature of the asset purchase agreement, are most similar to the purchase agreement which was held to be insufficient in SCR-Tech to create a tripartite privileged relationship.

...We hold that Defendants and Blast shared a common business interest as opposed to the common legal interest necessary to support a tripartite attorney-client relationship. Consequently, we hold that the trial court did not abuse its discretion in compelling Defendants to produce the documents.

(Mike Frisch)

Privileged Legal Bills

Dan Trevas reports a case decided today by the Ohio Supreme Court

When attorney-fee billing statements with detailed information about the tasks undertaken by a law firm representing a city are intertwined with summaries of the legal work performed, the detailed information is not a public record, the Ohio Supreme Court ruled today.

The Supreme Court voted 5-2 to affirm a Ninth District Court of Appeals decision to release redacted copies of invoices from a law firm representing Avon Lake to James E. Pietrangelo II. The records are connected to pending litigation between Avon Lake and Pietrangelo. In a per curiam decision, the Court majority reasoned that Pietrangelo may acquire information useful in his litigation strategy against the city if provided more details than what the Ninth District permitted to be released.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that only the narrative summary portion of the bills describing the work the firm did can be withheld and that Pietrangelo is entitled to more information as well as damages from Avon Lake.

Detailed Information Sought

Pietrangelo requested from the city and its law director the invoices from a law firm for services it rendered concerning his lawsuit. The city provided copies of invoices with the name of the firm, the general matter for which services were provided, the date of the invoice, the total fees billed for the period, and itemized expenses.

The city redacted the remaining information on the invoices citing exemptions for attorney-client privilege and attorney-work product. The information that was redacted included narrative descriptions of the particular legal services rendered, the name of each attorney in the firm providing services along with the service provided, the time spent, the billing rate, the total number hours billed, and the total fee attributed to each attorney.

Pietrangelo filed a writ of mandamus with the Ninth District to compel the city to provide unredacted invoices and requested statutory damages and attorney fees. Pietrangelo and Avon Lake both filed for summary judgment, but the Ninth District determined it could not side with a party without more information and ordered the city to file unredacted copies of the billing statements for the judges to review under seal.

After review, in March 2015 the Ninth District concluded the city disclosed all the records not exempt from disclosure by the Ohio Public Records Act, which is R.C. 143.43, except for one portion. The Ninth District found the part of the invoice titled “professional fee summary,” that described the hours, rates, and money charged for services was not exempt. It ordered the city to provide Pietrangelo with copies of the billing statements that included the professional fee summary.

The Ninth District denied Pietrangelo’s request for the fully unredacted records plus damages and attorney fees. He appealed to the Supreme Court, which agreed to hear the case.

Extent of Attorney-Client Privilege at Issue

Citing its 2011 State ex rel. Dawson v. Bloom-Carroll Local School Dist. decision, the Court’s opinion explains that narrative portions of itemized attorney billing statements containing descriptions of legal services are protected by attorney-client privilege and are not public records.

Pietrangelo argued that based on the Court’s 2012 State ex rel. Anderson v. Vermillion decision he is entitled to all the dates legal services were performed along with the hours and rates of services, which is more than what is provided in the professional fee summary. The Court in Anderson stated that “the general title of the matter being handled, the dates services were performed, and the hours, rates and money charged for the services,” on an attorney billing statement need to be disclosed.

The Court explained that Anderson was the former mayor of Vermillion and was seeking the billing statements regarding the legal services provided to the new mayor. His entire request was denied. The Court ordered Vermillion to turn over all of the billing statements, ruling only the narrative portions were exempt from the public records act by attorney-client privilege.

Avon Lake argued the situation with Pietrangelo is similar to the Dawson case where a parent sought billing statements for legal services provided to the school district regarding pending litigation between the district, the parent and her children. The district provided summaries with the attorney’s name, invoice total, and the matter involved, but withheld the actual invoices because they contained confidential information.

The Court allowed the district to withhold the invoices because the information in the invoices was “either covered by attorney-client privilege or so inextricably intertwined with privileged materials as to also be exempt from disclosure.”

“Like Dawson, the records that Pietrangelo seeks relate to the pending litigation between the parties. If disclosed, Pietrangelo may acquire information that would be useful in his litigation strategy against the city, whereas in Anderson, any harm from disclosure of attorney-client communication was remote and speculative,” the Court stated. “To the extent that Pietrangelo requests the dates, hours, and rates not identified in the professional-fee summary, they are inextricably intertwined with the narratives of services that are privileged materials. Such information is exempt from disclosure.”

Pietrangelo also sought $1,000 in statutory damages and attorney fees because the Ninth District found the city did not fully comply with the public records law. The Court affirmed the Ninth District’s denial of Pietrangelo’s request because Avon Lake reasonably believed it was entitled to withhold the information it did.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, and William M. O’Neill joined the opinion.

More Disclosure Required, Dissent Maintains

In her dissent, Justice Kennedy stated she would order the redaction of only the narrative services information and release all the other information on the billing statements to Pietrangelo in accordance with the Ohio Public Records Act.

She further disagreed with the majority’s conclusion that the relevant distinction between Dawson and Anderson regarding what information is subject to disclosure is whether litigation is pending between the record requestor and the government entity. Instead, Justice Kennedy wrote that the fact the records requestor is involved in litigation against the government body should have no bearing on whether the records are public.

“Whether a public-records requestor and a government entity are engaged in litigation is irrelevant to the question of whether the information in an itemized attorney-fee billing statement is privileged and exempt from disclosure. Instead, our case law mandates the proper focus is on the information sought and whether that information is privileged,” she wrote.

The relevant distinction between the two cases was that the school board in Dawson reduced the nonexempt information to a summary and released it, whereas the city in Anderson denied the request and failed to provide an alternative record.

Justice Kennedy recognized that the narrative portions of a billing statement containing descriptions of legal service are protected by the attorney-client privilege and not subject to disclosure. She explained that the billing statements at issue contain summary information on the first two pages, and that all subsequent pages contain four independent columns divided into the categories of date, name, services, and hours. Each billing statement concluded with the total number of hours invoiced, a professional fee summary, disbursements and expenses, and a total invoice amount.

She wrote the majority’s reliance upon Dawson to conclude that the date, name, and hours information was inextricably intertwined with the narrative of the services was disingenuous. She noted that Dawson offered little discussion of how the billing statements were constituted, whereas the format used in the statements to Avon Lake separated the information about the attorneys providing the services and the hours billed so that they “are not intertwined with the narrative services column.”

Justice Kennedy reasoned that the ability to redact the narrative services column mandated all remaining portions of the billing statements be released. By affirming the appellate court's decision not to release the remaining non-exempt portions of the billing statements the majority created a new “redundancy” exemption not authorized by the General Assembly she concluded.

Justice Kennedy would have also granted Pietrangelo damages because after Anderson decision it should have been clear to Avon Lake what information in a billing statement was privileged and what must be disclosed.

“Subsequently, no well-informed public office could reasonably believe that any portion of an attorney-fee billing statement, other than the narrative description of the legal services performed, is subject to redaction,” she wrote.

Justice Judith L. French joined the dissent.

2015-0495. State ex rel. Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-2974.

(Mike Frisch)

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.

Here

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)

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)

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.

Below

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)

 

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)

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)