Privileges in 2018–Year in Review

Another interesting year in the law of evidentiary privileges, including the apparent death and resurrection of the attorney-client privilege, has concluded. The Trump Administration continued to foster debate over privilege protections, Justice Kavanaugh’s privilege opinions, while perhaps not the primary focus of his Senate confirmation hearings, came to the forefront, and courts issued more privilege rulings in post-event investigations by corporate counsel.

So, for the one or two of you who have not studied each PoP post in 2018, here is my year-in-review. More…

Privileges in 2017–A Year in Review

The year 2017 produced several interesting privilege issues.  Some privilege-related subjects offer practical tips, others may highlight a new issue for you, while still others fall into the “I can’t believe that!” category.

The privilege highlights range from internal investigations to the Trump Administration to ethical violations.  I cannot cover all of them, but here is a summary of thought-provoking privilege topics that arose in 2017.  Hope these discussions prove helpful to you.

Ethics

The Minnesota Supreme Court imposed a private reprimand for a lawyer who, after being fired, disclosed client communications to his adversary.   The Indiana Supreme Court expressed “outrage” and imposed a four-year disbarment to a prosecutor who surreptitiously listened to jailhouse conversations between criminal defendants and their lawyers.

And a California appellate court upheld a law firm’s disqualification after one of the firm’s lawyers did not return an adversary’s inadvertently disclosed privileged email and, instead, used it offensively before obtaining court permission to do so.

Trump

The Trump presidency did not disappoint in providing several privilege-related discussion points.  The issue of “executive privilege” arose when former FBI Director James Comey testified before the Senate Intelligence Committee.  Attorney General Jeff Sessions (sorta) invoked executive privilege when he testified before the Senate Intelligence Committee.

Trump’s two personal lawyers, John Dowd and Ty Cobb, had lunch at BLT Steak in DC and openly discussed producing documents as part of Mueller’s Russia investigation—all while a NYT reporter sat at a nearby table listening to the entire conversation.  Privilege waiver? I discussed it here. More…