A former Indiana prosecutor surreptitiously listened to not one—but two—conversations between criminal defendants and their attorneys. Despite self-reporting and claiming lack of prejudice, the Indiana Supreme Court determined the prosecutor’s misconduct violated PR Rules 4.4(a) (violating third-person’s rights) and 8.4(d) (conduct prejudicial to the administration of justice), and imposed a four-year suspension “without automatic reinstatement.” In the Matter of: Robert Neary, 2017 WL 5082686 (Ind. Nov. 6, 2017). You may read the opinion here.
Listening from the War Room
Defense attorney David Payne arrived at the police station to interview his client, Brian Taylor, who faced a murder charge, and detectives escorted them to a room. The room contained video- and audio-recording capabilities, so detectives told Payne to disengage the “toggle switch” “unless you want us listening to your conversation.” More…
In the continuing fallout from the reprehensible Jerry Sandusky scandal, a PA appellate court rejected Penn State’s attorney–client privilege claim over documents that Louis Freeh’s law firm generated during its internal investigation. The reason?
The court found that there was no attorney–client relationship between Penn State and Freeh’s law firm, and, without this relationship, the privilege did not cover communications between Penn State Board of Trustees and Freeh’s firm. The court made this finding even though the Board Chair signed the engagement letter and the Board paid Freeh’s fees. Estate of Paterno v. NCAA, 168 A.3d 187 (Pa. Super. Ct. 2017). You may read the decision here.
The Forgotten Privilege Element
Regular readers of this blog know that the party asserting the attorney–client privilege must show three primary elements: a (1) confidential (2) communication made for (3) legal-advice purposes. We too often, though, presume—and forget about—a threshold element: a lawyer–client relationship. More…
An interesting privilege issue maneuvered through the NC court system—does a contract’s indemnification provision create an attorney–client relationship between a law firm, indemnitee, and a non-party indemnitor so that the privilege protects communications between the indemnitor and indemnitee?
In a decision that I profiled in this post, the NC Court of Appeals held that the indemnification clause created a business—not legal—interest between the indemnitor and indemnitee, and therefore the common–interest doctrine did not protect their communications from discovery.
But the NC Supreme Court reversed, ruling that an indemnification agreement creates a common legal interest between an indemnitor and indemnitee because “the indemnitor contractually shares in the indemnitee’s legal well-being.” This common interest creates a tripartite attorney–client relationship between the indemnitee, indemnitor, and their defense counsel. Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., 2017 WL 5016625 (N.C. Nov. 3, 2017). You may read the decision here. More…