Attorney-Client Privilege

Burger King bounty for Biglaw.

* Judge Posner dished out a whole lot of benchslaps at yesterday’s Seventh Circuit arguments over Indiana and Wisconsin’s bans on same-sex marriage. [BuzzFeed]

* Major U.S. and Canadian law firms chow down on Burger King’s whopper of a deal with Tim Hortons. [Am Law Daily]

* A recent Delaware court ruling on attorney-client privilege might allow in-house lawyers to speak more freely about wrongdoing at their companies, according to Professor Steven Davidoff Solomon. [DealBook / New York Times]

* The corruption trial of former Virginia governor continues; yesterday Bob McDonnell’s sister took the stand. [Washington Post]

* A favorable evidentiary ruling for Aaron Hernandez. [Fox Sports]

* And good news for Zephyr Teachout and Tim Wu, the two law professors running for governor and lieutenant governor of New York: the Times dissed their opponent, Andrew Cuomo, with a non-endorsement. [New York Times]

* I recently spoke with one of my cousins Joao Atienza of the Cebu Sun Star, about Above the Law and the world of legal blogging. [Cebu Sun Star]

She’s coming down with a bad case of ‘going to get a pony.’

Remember the “affluenza” kid? His name is Ethan Couch and the teenager went on an alcohol-fueled joyride after a party in the mansion his parents had bought for him. The joyride resulted in the death of 4 people and the injury of multiple others as alcohol-fueled joyrides are wont to do. Except Couch avoided the fate of pretty much any other person who might kill 4 people on the back of a clinical psychologist’s expert opinion that Couch suffered from a mental condition that he coined as “affluenza” — basically as a rich, privileged tool, the kid couldn’t be held responsible for his actions.

Most people found this ridiculous. Elie went so far as to call for the parents to be jailed. Which has a certain Nancy Grace-style emotional appeal, but also kind of feeds the argument that this kid himself should continue to remain shielded from the consequences of his actions. It also fans the flames of the same parent-policing logic that ends with people getting arrested for letting their kids play outside. But in any event, the fact that a juvenile system judge with a reputation for harsh punishments for poor, black kids — she sent a 14-year-old black kid to jail for 10 years for punching a kid who fell and hit his head resulting in his death — sent a 16-year-old, rich, white kid willfully driving drunk to a country club rehab facility — conveniently paid for mostly by taxpayers — exposed everything wrong with privilege in America.

Now the case raises another debate about privilege. One of the victims who survived the accident is suing and wants to see exactly how this clinical psychologist came to his groundbreaking diagnosis that rich kids don’t have to go to jail, and Couch’s lawyers are fighting that disclosure tooth and nail….

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The white-collar bar is a varied and wonderful thing.

On one hand, there are the large-firm players — the FCPA mongers and the folks doing criminal antitrust work who fly all over the globe representing clients in lucrative conference room litigation that will rarely see a courtroom.

These cases are well-funded. Even if the client has a higher chance of French kissing the Chief Justice during the State of the Union address than of being indicted, as long as he’s indemnified by a large company, many firms will do everything they possibly can to be completely and fully ready for an indictment that will never come. I haven’t yet heard of a mock jury for a client in an investigation that isn’t going to be indicted, but I think that’s only because no one has thought it up yet. (And, to my friends currently representing such indemnified clients, you’re very welcome for the suggestion.)

For these folks, attorney-client privilege exists and is relatively easy to preserve. It’s good to be pre-indictment and it’s good to be indemnified.

But, for the rest of the folks accused of white-collar crimes, our Department of Justice is only too happy to make folks choose between a preserved attorney-client privilege and the Sixth Amendment.

How?

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Isn’t discovery fun?

You sometimes hear Biglaw litigators complain about courts not publishing enough opinions about discovery issues. Discovery (especially e-discovery) is such a major — and majorly expensive — part of the complex litigation in which large firms specialize, but there aren’t that many decisions on the books over such nuts-and-bolts issues as responsiveness, privilege, and work-product doctrines.

So it’s noteworthy that the Massachusetts Appeals Court just issued an opinion featuring extended discussion of the work-product doctrine. Some Boston Biglaw litigators will surely welcome the additional guidance on this subject.

But not all of Boston Biglaw will be pleased by this decision. Certainly not the major firm that could wind up getting hit with sanctions as a result….

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“Siri? How do I commit a massive breach of my professional and ethical obligations?”

As previewed in Morning Docket, a partner at Morgan Lewis & Bockius allegedly patent-trolled a firm client.

I say “allegedly” not to suggest there’s any question over whether the partner owned the trolling company, but because the partner claims he had no involvement in the decision to sue his firm’s most prominent tech client. Even if he didn’t, it hardly sounds kosher.

Whatever his precise role, he might have gotten away with it, too, if it weren’t for that meddling privilege log…

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Let me regale you with two recent examples of lawyers disclosing client confidences. There’s a lesson tucked into each.

First: An acquaintance sent me the résumé of, and asked me to speak to, a young lawyer. The idea was to give some general career advice, rather than necessarily to hire the person.

I’m a pushover, so I agreed to have a cup of coffee with the relatively new lawyer. Over coffee, he (or she, but I’ll use the masculine) explained that what he liked least about the job he’d just left (which was identified on his résumé) was being asked to do unethical things. My curiosity piqued, I asked for an example. He explained that he’d been asked to draft a contract that committed his employer to violating the law as part of the contractual relationship. (Think along the lines of, “We will ship the illegal weapons to you in New York.”) My young acquaintance said that he’d gone to the general counsel, who had instructed him to draft whatever contract the business wanted. The earnest young lawyer had solved the ethical problem by drafting a contract that, when read carefully, would prohibit the illegal conduct. (Think: “Under no circumstance will any weapons of any type be shipped pursuant to this contract.”)

I’m afraid I won’t be recommending this person for any jobs. . . .

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Last time we checked in with Paul Ceglia — the Man Who Would Be King of Facebook — and his lawsuit claiming partial ownership of the social media giant, he was facing sanctions if he refused to provide Facebook with a very touchy document known as the Kasowitz letter.

Well, the production deadline has come and gone, and there’s no letter. You know what that means. All aboarrrd! Next stop, Benchslap City…

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Lawyers: the same as trees?

As the superior court aptly observed, “The fact that the meeting occurs in a public place does not destroy the privilege, if no one hears the conversation.”

– Associate Justice Robert J. Lynn of the New Hampshire Supreme Court, in an opinion upholding the existence of the attorney-client privilege, despite the fact that an attorney discussed confidential information with his clients at a meeting that was open to the public.

For a couple of centuries, we thought that American elections were precise: People voted; the government counted each vote; we knew which candidate received how many votes.

In the year 2000, we learned that elections are approximations. Votes are miscounted; chads dangle; we don’t in fact know precisely who received how many votes. Elections are a human process after all, and they can’t bear the weight when we insist on precision within the margin of error.

So, too, with litigation. I recently spoke to one of our outside litigators who had seemingly vanished from the face of the earth for several weeks. He told me that one of his clients had run into a now-typical e-discovery disaster: His client had overlooked some documents; a computer system had automatically deleted some other documents; when the client corrected the situation, it did so imperfectly; the judge (who came from a government background and had no experience in private civil litigation) was quick to spy “bad faith.” Why, this outside lawyer asked, don’t judges appreciate the difficulties presented by e-discovery?

My thesis (for today, anyway) is that e-discovery is like elections: It’s an approximation, and participants in litigation (parties, counsel, courts) should understand that it may not bear the weight when the judicial system insists on precision within the margin of error . . . .

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My work life revolves around email. Because of the size of our company, and the geographical locations of my clients, I spend a majority of my day on email. Like many of you, I have a disclaimer below my signature stating that the correspondence is attorney-client privileged, and so on. But is it really? Many times, the answer is no. I know enough to use the disclaimer in an abundance of caution, but my clients often have no idea whether what they send across email is indeed privileged.

Like Susan Moon, I am often referred to as “council.” That’s fine, it doesn’t really bother me, and is rather innocuous. Sometimes however, a client will take it upon themselves to write in bold, ATTORNEY-CLIENT PRIVILEGED, within the subject line. And that does bother me. Folks with just enough legal knowledge to be dangerous, are often just that — dangerous. Now, the email may indeed be seeking my advice, or concern a legal matter within that client’s region, but the client should not assume that to be the case. The misunderstanding of the privilege could lead to problems in the future, say, in a discovery period….

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