TRUMP’S LAWYER AND ATTORNEY-CLIENT PRIVILEGE

The recent search of President Trump’s Lawyer, Michael Cohen’s, office, home, safety deposit box, and hotel room is a very big deal when it comes to issues of attorney-client privilege and client confidentiality.  It has been reported that the search is part of an investigation into Cohen for possible bank fraud and wire fraud. President Trump has tweeted that attorney-client privilege was “dead” and “now a thing of the past.”  As the case before Judge Kimba Wood in the Southern District of New York is demonstrating, President Trump is wrong and he just doesn’t understand attorney-client privilege.

Judge Wood has yet to decide who will have the first look at materials the government seized with the search warrant, though she has signaled that it won’t be President Trump, most likely won’t be Cohen, and may not be a government “taint” team walled off from the prosecutors doing involved in the investigation.  Rather, it is more likely that Judge Wood will appoint a special master to review the material and decide what is and is not covered by attorney-client privilege and possibly work-product.  Both attorney-client privilege and work product are allied with client confidentiality, and all three rules or doctrines are based on the assumption that effective legal representation requires free and open communication between client and counsel.  All three are aimed at encouraging such open communication by keeping certain information from one’s adversary and the public.

Faculty teaching attorney-client privilege, client confidentiality, and work-product should think about using the issues Judge Wood and possibly a special master have to consider.   For example, the materials seized will likely contain the following information:

  • Client names;
  • Communications between Cohen and clients; and
  • Possible materials prepared in anticipation of litigation if Cohen worked on any matters in which litigation was a possibility.

Ask your students to be the special master, and ask them to identify which category or categories apply to the above materials or information.  When it comes to the communications between Cohen and clients, the students will need more information to see if the communications fit the definition of attorney-client privilege:  (1) a communication; (2) made between privileged persons (typically the lawyer and client); (3) in confidence; and (4) for the purposed of obtaining or providing legal advice or other assistance to the client.  Communications that do not involve legal advice would not be covered.  Also, communications in furtherance of a crime or fraud would fit the crime fraud exception.

When it comes to client names, they are not covered by attorney-client privilege.  On the other hand, the names may be covered by client confidentiality as “information relating to the representation of a client” under Rule 1.6(a), as New York State Bar Association Ethics Opinion 1088 (2016) explains.  There are some state advisory ethics opinions take a different position, such as California Formal Op. 2011-182 (2011), which stated:  “In most situations, a client’s identity is not considered confidential . . . .”  This is just another reminder that it is important for a lawyer to research and understand how one’s jurisdiction is likely to approach ethics issues.

District Court Creates Guide for Attorney-Client Privilege in the Corporate Context

Law students and lawyers alike often go down the rabbit hole when considering what is and is not attorney-client privilege communications in the corporate context. On February 23, 2018, Judge Michael M. Baylson of the U.S. District Court for the Eastern District of Pennsylvania released an order in SodexoMagic LLC v. Drexel University that sets out a set of hypotheticals for the parties to determine when privilege exists.  He comprised this set of hypotheticals after reviewing 50 documents in camera submitted by the parties as samples of disputed claims of privilege.

This court order is an extremely valuable resource for explaining privileged communications that can be withheld from production, and those that are not.  The challenged communications involved internal emails within the two corporations.  Some of the emails were between corporate counsel and employees of the corporation, and some were between others working with the corporate attorneys acting on their behalf.  When the corporate attorneys or their subordinates, such as paralegals, were providing legal advice, the privilege applied.  When the lawyers or their subordinates were “acting in a purely ‘scrivner-like’ role, their emails and documents (including draft agreements) are themselves not privileged communications.”  Judge Baylson then proceeds to analyze 13 of the emails and documents and explains which are and are not covered by attorney-client privilege.

This is a great order to review attorney-client privilege, and one that will make it into the next edition of Professional Responsibility: A Contemporary Approach!

ABA Opinion Suggests Lawyer Must Understand More of the “How” of Technology to Satisfy the Rules

Yesterday, the ABA issued a formal opinion on attorney email encryption, providing that while encryption is not required always, it may be – and to determine if it is, a lawyer must understand certain things, including how information is transmitted and where it is stored.

Model Rule 1.4 may require a lawyer to discuss security safeguards with clients. Under certain circumstances, the lawyer may need to obtain informed consent from the client regarding whether to the use enhanced security measures, the costs involved, and the impact of those costs on the expense of the representation where nonstandard and not easily available or affordable security methods may be required or requested by the client. Reasonable efforts, as it pertains to certain highly sensitive information, might
require avoiding the use of electronic methods or any technology to communicate with the client altogether.

Great summary of (and link to) the opinion here.

H/T to Jim Calloway @ Law Practice Tips.

Thoughts on ABA Formal Opinion 476

When a lawyers tries to withdraw for a client’s failure to pay, the lawyer must take care to avoid breaching the Rule 1.6 duty of confidentiality, according to the December 2016 opinion. But what does this mean, practically speaking?  I see this as yet another tension between the law as a profession v. the law as a business.

If a buyer repudiates a contract, the seller can cancel without judicial approval. A lawyer cannot do so, necessarily, when a client repudiates a contract by failing to pay. This reality existed before this opinion; the opinion does not change things. But it is notable that the structure of the process found in this opinion increases uncertainty for the lawyer and therefore the costs of doing business. A lawyer can’t be a professional unless she can get paid.

More thoughts via the ABA Journal article Lawyers Should Tread Carefully Before Quitting a Troublesome Client.

Federal Circuit Recognizes Independent Patent Agent Privilege

This week, the Federal Circuit found that “patent agent”-client privilege exists independent from the attorney-client privilege, resolving a district court split, according to IPethics and INsights.

While the court recognized the “presumption against the recognition of new privileges,” including that “courts have consistently refused to recognize as privileged communications with other non-attorney client advocates,” it  found “that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court’s characterization of their activities as the practice of law, and the current realities of patent litigation counsel in favor of recognizing an independent patent-agent privilege.”

I find this decision particularly interesting in light of the increasing numbers of non-lawyer legal services providers.  While the privilege will no doubt remain sacred, the court’s reasoning did rely on the “clear congressional intent to authorize an agency to create and regulate a group of individuals with specific authority to engage in the practice of law,” a factor which will no doubt be relevant as our regulatory scheme increasingly embraces alternative legal service providers.

h/t to Wake Law Student and Patent Agent John Sears.

 

 

Spotlight and the role of lawyers

I’ve only seen one of the films nominated for an Oscar this season—Spotlight—and it has haunted me. (Fair warning: spoilers ahead, though the film is well worth viewing even knowing how it unfolds.)

This gripping film recounts the true story of Boston Globe editor Marty Baron’s decision to assign the newspaper’s “Spotlight” team of investigative reporters to examine sex abuse allegations against Catholic priest John Geoghan. The reporters’ interviews of victims and efforts to unseal sensitive court documents eventually led them to what we now know was an extensive cover-up of abuse by the Roman Catholic Church over many years involving not just Geoghan but thousands of priests. (The Globe won the 2003 Pulitzer Prize for Public Service based upon this reporting.) The film features brilliant acting by Michael Keaton as editor Walter “Robby” Robinson, Rachel McAdams as reporter Sacha Pfeiffer, and Mark Ruffalo as reporter Michael Rezendes, among others. Most intriguing to me, however, was the role of lawyers in the film, including Erik MacLeish, who represented numerous abuse victims in securing private settlements, and Jim Sullivan, who defended priests accused of abuse and was a long-time friend of Robby Robinson.

The film raises significant questions about legal ethics and personal morality. How do we reconcile the sanctity of confidentiality and attorney-client privilege against the moral dilemma of knowledge about a client’s outrageous acts? It is one thing to maintain confidentiality in representing someone accused of an isolated crime that occurred in the past, but what if a lawyer has information that could prevent hideous child abuse from occurring in the future?

Robinson repeatedly asks Sullivan to become a confidential source by confirming the names of child molesting priests as the Globe’s list of suspects grows. Sullivan struggles—the film captures this beautifully and painfully—then finally relents, confirming dozens of names on the Globe’s list.

MacLeish obtains settlements for hundreds of victims, all subject to strict confidentiality agreements. His work is critiqued by the reporters as essentially being a cottage industry at the expense of future victims, because the settlements prevent the abuse from becoming public. MacLeish maintains that the short statute of limitations and statutory cap on recovery made settlement the best possible outcome for his clients. Perhaps that is true for the individuals he represented; but what about the children who continued to be abused? Does settlement in a situation like this achieve justice or undermine it? (Read Owen Fiss’s Against Settlement for more on that topic.) Here again, MacLeish faces the moral dilemma of whether or not to reveal confidential information. We learn late in the film that he sent information to the Globe many years before the Spotlight investigation occurred; the Globe failed to follow up on it.

What is the role of lawyers in a massive abuse scandal of this nature? Should there be an exception to client confidentiality protections or attorney-client privilege? Does Model Rule 1.6’s exception for breaching confidentiality to prevent an act that is reasonably certain to result in substantial bodily harm apply here?

This article from the Globe’s Spotlight team reporting on the abuse scandal in 2002 offers some answers while at the same time raising even more questions:

“Plaintiff lawyers settle cases confidentially all the time,” said Paul J. Martinek, editor and publisher of Lawyers Weekly USA, a professional journal. “But if you know your client’s been raped by a priest and you settle the case confidentially, knowing that the priest could go out and do it again, your hands aren’t entirely clean.”

Middlesex District Attorney Martha Coakley has also had harsh words for some attorneys who represent victims of priests, saying in an interview that “the plaintiff lawyers bear some responsibility” for keeping abuse by priests out of the public eye by settling cases confidentially.

Looking back, silence has become hard to take

Boston attorney Laurence E. Hardoon, who took on his first clergy sex abuse client in 1992 and has since handled between 20 and 30 such cases, reflected on his role in this ugly chapter with a twinge of regret.

“If we had any inkling whatsoever of the magnitude of harm that was out there, maybe we, as a joint group of plaintiff lawyers, would have tried to encourage our clients to be outspoken in many cases,” said Hardoon, who formerly served as a Middlesex assistant district attorney. “It’s hard not to look back and say the greater good would really have been served by the lack of secrecy earlier on.”

Jeffrey A. Newman, of the Boston firm Newman & Ponsetto, has represented scores of alleged clergy sex abuse victims, and voiced a public mea culpa over his involvement in a handful of earlier cases that he settled secretly.

“Had I been more astute, I probably could have recognized the problems better,” Newman said. “I just never took the time to examine them closely enough.”

But MacLeish, Hardoon, Newman, and other plaintiff lawyers also say they were hamstrung by restrictive state laws that limited their ability to press charges against alleged offenders. They also blame legislators for failing, until recently, to require church officials to report suspected abuse. They and others have also pointed a finger at judges, prosecutors, and the press for being too deferential to the church over a long period of time.

They argue they were torn between their obligation to zealously represent their damaged clients, few of whom wanted their personal lives exposed in a courtroom, and the church’s reluctance to settle cases without confidentiality clauses. As a result, some legal experts say, secrecy was often the only option.

“If you can get $100,000 or $500,000 for your client and the price of that is silence, the lawyer’s sort of in a bind,” said Andrew L. Kaufman, who teaches ethics at Harvard Law School and sits on ethics committees for the Massachusetts Bar Association and Supreme Judicial Court.

“Ultimately, it’s the client who instructs the lawyer on whether to accept the offer,” Kaufman said. “And as long as a confidential settlement is lawful, sometimes a lawyer’s got no choice but to accept it.”

(Cross-posted at the Legal Ethics Forum)

New ABA Opinion on Ethical Duty when Client Documents are Subpoenaed

In Formal Opinion 473 (Feb. 17, 2016), the ABA provides new guidance to lawyers receiving subpoenas for client documents or information.  The opinion states that whenever a lawyer receives a subpoena or any other compulsory process for documents or information relating to the representation of a client, several obligations are implicated.  First, the lawyer must consult with the the client, if the client is available.  Next, unless the client instructs otherwise, the lawyer must assert all reasonable claims against disclosure and seek to limit the scope of any disclosure.  Next, if ordered to produce any information, the lawyer should consult with the client on whether to appeal the ruling.  Finally, if the client and the lawyer disagree on how to proceed, the lawyer should consider whether to withdraw from the representation pursuant to Rule 1.16.

The new opinion goes into some detail to explain what the lawyer should do if the client is unavailable, and to the duty to take steps to protect client confidentiality.  The opinion should be a very helpful resource to any lawyer facing attempts to pierce client confidentiality.

The new opinion is also a useful addition to Formal Opinion 10-456 (July 14, 2010), which addressed the disclosure of client information to a prosecutor when a lawyer’s former client brings an ineffective assistance of counsel claim.  Formal Opinion 10-456 makes clear that a lawyer may only disclose confidential information that the lawyer believes is reasonably necessary for the lawyer’s self-defense.