Donald Trump, Jr.’s attorney–client privilege assertion over discussions with President Trump—in the presence of lawyers—has generated significant commentary on television news shows, and in news articles and opinion columns. Some claim the privilege assertion was “brazen” and “unequivocally” wrong, while others see merit in the privilege argument or take a wait-and-see approach.
This is political—not legal—theater.
Many have expressed an interest in my analysis. So, here it is—my objective, non-political, legal analysis of the Trump Jr.’s privilege claim based on what we know. Those seeking blind support of the privilege assertion or a conclusory, hyperbolic denouncement should look elsewhere. 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…