Mamma Mia! Don’t Bring Your Parents to a Lawyer Meeting

A young adult, injured and likely nervous, takes her parents to an initial meeting with her personal-injury lawyer. Does the privilege protect this discussion from discovery? In a case of first impression, the Colorado Supreme Court rejected the privilege because the parents’ presence breached the confidentiality element of the attorney–client privilege. Fox v. Alfini, 2018 WL 6441601 (Colo. Dec. 3, 2018). You may read the decision, including the concurring and dissenting opinions, here.

How Did This Happen?

Kayla Fox, in her early 30s, suffered a stroke after receiving treatment from chiropractor William Alfini. Wondering if she had a professional-negligence claim against Alfini, Fox met with a lawyer. Fox’s parents accompanied her and participated in the lawyer meeting. Remarkably, the lawyer recorded the meeting.

Learning of the meeting, the recording, and the parents’ attendance, Alfini’s lawyers moved to compel the recording’s production. Fox, of course, claimed that the attorney–client privilege protected the recording from discovery, but Alfini argued that the parents’ presence eliminated the confidentiality element and, thus, the privilege.

And this dispute set up a Supreme Court clash. More…

Deck the Halls with Boughs of Kovel 1

Over the last quarter of 2018 and leading into this holiday season, several courts have issued decisions applying the Kovel Doctrine in a variety of settings. So, this seems like an excellent time to review the doctrine, explain it, and see how courts have recently applied it, including in settings involving adult children, public-relations consultants, investment bankers, and accountants.

What is the Kovel Doctrine?

Louis Kovel was, as we Southerners would say, a revenuer. He worked as an IRS agent but, in 1943, became employed as an accountant with Kamerman & Kamerman, a NY tax law firm. When a federal grand jury began investigating a man named Hopps for tax improprieties, Hopps sought counsel from the Kamerman firm, and specifically met with the non-lawyer, former revenuer Kovel.

Kovel was later subpoenaed to provide grand-jury testimony against Hopps, but refused to answer any questions on grounds that the attorney–client privilege protected his discussions  with Hopps.  Remember, there is no federal accountant–client privilege, so the attorney–client privilege was his only avenue for relief.

The district judge bluntly rejected Kovel’s privilege argument, omnisciently stating:

  “You don’t have to give me authority on [the privilege]”;

  “I’m not going to listen” to Kovel; and

   “There is no privilege to this man at all.”

And when Kovel refused the judge’s order to disclose his communications with Hopps, the judge held him in criminal contempt and sentenced him to a year in jail.

Poor Kovel.

The judge let Kovel out of jail after 4 days so that he could appeal to the Second Circuit, and so he did. Legendary judge Henry J. Friendly authored what became the seminal decision on More…

Entirely Too Far—No Privilege between Company and its “Agent”

It often happens that a company obtains information critical to its claim or defense from an entity with which it has a close business relationship. The question arises whether the attorney–client privilege protects the communications. Sure, some courts extend the privilege to a client or lawyer’s agent in various, restrictive situations.

But when a Texas company claimed privilege over its non-lawyer communications with its sole-source supplier, the court rejected the privilege, ruling that the company took this agency principle “entirely too far.” LL’s Magnetic Clay, Inc. v. Safer Med. of Montana, Inc., 2018 WL 5733178 (W.D. Tex. Aug. 2, 2018). You may read the decision here.

Background

LL’s Magnetic Clay, Inc. sued Safer Medical for federal false advertising and various related state-law claims. Safer Medical’s employee—either before or during the lawsuit (it’s unclear)—contacted Tainio Biologicals, it sole source of product ingredients, to gather “technical documents” and “confirm key technical facts.”

Magnetic Clay subpoenaed—and Tainio produced—documents that included communications between Safer and Tainio regarding the relevant, technical information. Safer Medical saw these documents, and immediately sent a claw-back letter, claiming the privilege protected the documents from discovery because Tainio, its sole-source supplier, was functioning as its agent “whose assistance [was] necessary to enable the client’s attorneys to provide legal advice.”

Law and Ruling

The court correctly cited the privilege’s foundational elements—confidential communications for legal-advice purposes—but then said this:  More…