We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is a roundup of interesting privilege issues for September 2016.
→The New Republic reviews John Henry Browne’s new book about defending Ted Bundy and other criminal defendants, and correctly notes that the attorney-client privilege survives the client’s death, even Bundy’s, and wonders aloud that while a court cannot force a lawyer to reveal a deceased client’s communications, apparently the lawyer can voluntarily do so at his own risk. Best quote from the article: “Attorney-client privilege is more binding than marriage, and in some ways more intimate.” Story here.
→The City of Memphis and the State of Tennessee lost a terrific lawyer when David Caywood passed away this month. Mr. Caywood, who was Dr. Martin Luther King’s legal team during the 1968 sanitation workers’ strike and just before Dr. King’s assassination, later testified for the prosecution in the murder trial of former FedEx pilot Mike Mullins and revealed what his client, Holly Mullins, told him before her death. The Commercial Appeal‘s article, accessible here, states that the attorney-client privilege does not exist after death which permitted Mr. Caywood to testify. This is not technically true–see the story about Mr. Browne’s book above–but Mr. Caywood likely had a waiver in any event. RIP to a fantastic Tennessee lawyer.
→The FBI’s Friday-before-Labor-Day document dump revealed that Cheryl Mills, Hillary Clinton’s Chief of Staff when Clinton was Secretary of State and later her personal lawyer, represented Clinton during her FBI interview. Mills, of course, was also a material witness in the FBI’s investigation of Clinton’s use of a private email server. Many privilege issues arise here, and the Weekly Standard’s article, available here, explains it well.
→How do you stop a Board member from revealing privileged information? Good question that this editorial from the Naples Daily News answers.
→ Recall that a Texas federal court enjoined the Department of Labor from implementing its so-called “persuader rule” because the rule, in part, would require violation of the attorney-client privilege. See this post for a refresher. The Akron Legal News reports that the DOL has decided to appeal this nationwide injunction. Story here.
→A non-profit group sued the NY Attorney General seeking to force him to reveal–under public records laws–a common interest agreement between his office and other state attorneys general in their joint case against ExxonMobil. The NY AG is rightfully concerned about disclosure of attorney-client communications and raises a larger question–are common interest agreement privileged? Discoverable? Story here.
→Ever wondered about privilege issues in seeking tax advice from attorney versus accountants? If so, I’m sorry; but here is a good article explaining some pitfalls of which we should all be aware.
→The Kentucky Attorney General issued a decision that the University of Kentucky violated the Open Records Act by refusing to disclose documents related to a university-owned cardiology practice, including a presentation that a university lawyer made to the UK Board of Trustees. Significant privilege issues are involved here, and this is surely not the last we will hear about this dispute. Story here.