We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is my Monthly Privilege Roundup of interesting privilege issues for June 2018.
→ After much outrage and a presidential proclamation that the attorney-client privilege was dead (see my rebuttal here) after the FBI removed thousands of documents from Michael Cohen’s office, the matter is whimpering through June. After reviewing 229,000+ documents, the Special Master designated only 161 as privileged. See Judge Wood’s Order here. Perhaps the Special Master had trouble finding that the privilege applied given the many privilege hurdles discussed here.
→ Michigan State University’s Board of Trustees asked the Michigan AG to investigate the University’s handling of the scandal involving Larry Nassar, the former physician who abused several athletes over a 20-year period. The AG issued a search warrant specifically seeking the University’s privileged communications. Wow. The University filed a motion to nullify the search warrant. This developing story is one to watch. Read the Lansing State Journal story here. More…
We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is my Monthly Privilege Roundup of interesting privilege issues for May 2018.
→As profiled in this post, the Special Master reviewing Michael Cohen’s files to identify potentially privileged information has many issues to consider. One thing she will not consider is whether the privilege covers Michael Gleason’s emails to Cohen regarding alleged sexual-abuse victims of former NY Attorney General Eric Schneiderman. Judge Kimba Wood easily ruled that the common–interest doctrine offers no protection. You may read Gleason’s request here and Judge Wood’s ruling here.
→Speaking of the common–interest doctrine, attorney Larry Saylor published an excellent article on the subject in the May 2018 issue of the Michigan Bar Journal. It’s worth a read, which you may do here.
→Cynthia Baldwin, former PA Supreme Court Justice and Penn State General Counsel, is facing potential disciplinary action for, among other things, violating the attorney–client privilege when she disclosed communications from Penn State officials. You may read my post about Baldwin’s handling of the situation here, and an article from the Pittsburgh Post-Gazette on the disciplinary hearing here.
→In Arkansas, a local judge ordered Arkansas’ Attorney General to testify in a lawsuit claiming she acted in bad faith by refusing to insert language on a ballot initiative. The court rejected the AG’s claim that the deliberative-process protects her discussions. Apparently, Arkansas has no deliberative-process privilege. You may read the story from UA Little Rock Public Radio here.
→In Stephanie Clifford’s currently stayed LA case against Michael Cohen, Clifford’s lawyer claims that he will depose Mayor Giuliani about his comments that President Trump More…
We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is my Monthly Privilege Roundup of interesting privilege issues for January 2018.
→Special Counsel Robert Mueller wants to interview President Trump as part of the Russia campaign-meddling investigation, and may even subpoena him. If so, The Wall Street Journal, quoting yours truly, reports that Trump may rely on a D.C. Circuit opinion, In re Sealed Case, 129 F.3d 37 (D.C. Cir. 1997), to assert the presidential-communications privilege. Story here (subscription required).
→Remember when Jim Comey provided confidential memoranda to his friend, Columbia Law Professor Daniel Richman, who in turn leaked the memos to the New York Times? Now Richman claims to be Comey’s personal attorney, which may become relevant in asserting the privilege to prevent authorities investigating the leaks from discovering any Richman–Comey communications. Story from The Federalist available here.
→Authorities arrested and then released two lawyers for rap mogul Suge Knight for accessory to witness tampering. Knight, in custody and facing murder charges, would call a third-party who, in turn, conferenced in Knight’s lawyer. The trial judge permitted prosecutors to listen to these calls because presence of the third-party waived any privilege. The L.A. Times story is available here.
→Speaking of jailhouse recordings, regular readers of this monthly roundup column know that I’ve relayed several reports of prosecutors and authorities recording conversations between lawyers and their in-custody clients. A Nebraska More…