We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is my Monthly Privilege Roundup of interesting privilege issues for November 2017.
→The DC federal court ordered a former lawyer for Paul Manafort and Richard Gates, both indicted by Special Counsel Mueller, to testify before a federal grand jury. The court found that the crime–fraud exception to the attorney–client privilege applied. You may read the opinion here, and an excellent article about the issue from Law360’s Andrew Strickler here.
→According to a New York Times report, former National Security Advisor Michael Flynn’s lawyers have withdrawn from a common–interest agreement with President Trump’s lawyers. Under the agreement, Flynn’s lawyers shared information with President Trump’s attorneys regarding the Special Counsel’s investigation. No more, apparently. Read the story here.
→Interesting Privilege Twist. A Topeka businessman facing criminal charges for bankruptcy fraud plans to call his bankruptcy attorney as an expert witness. The judge allowed it, saying that there is no conflict of interest and that the privilege belongs to the businessman, and he can waive it if he wants. Story here.
→The University of New Mexico allowed the attorney for Paul Krebs, former University of New Mexico Athletic Director who resigned after many questioned his using public funds for a Scotland trip, to review emails for privilege before producing them to the Albuquerque Journal under a public-records request. Is there anything wrong with that? Story here.
→The Utah Attorney General is battling an order to produce a legal opinion regarding rules for the recent election of U.S. Representative John Curtis. More…
The USDC for the ED Louisiana issued a short but instructive privilege opinion for in-house lawyers. The court found the in-house counsel privilege “more difficult” to apply, ruled that an executive’s cc’ing in-house counsel is insufficient, imposed a “primary purpose” standard, and generally rejected the privilege because there was “no indication” that the employee emailing the in-house lawyer was seeking legal advice. Texas Brine Co. v. Dow Chemical Co., 2017 WL 5625812 (ED La. Nov. 21, 2017). You may read the opinion here.
Dow Chemical challenged the privileged nature of several emails involving Texas Brine’s in-house lawyers, and the court recognized the difficulty in assessing in-house lawyers’ privilege assertions. The court found it “more difficult” to define the privilege’s scope because in-house counsel “serve multiple roles,” including non-legal ones, and have an “increased level of participation in the day-to-day operations of the corporation.”
The Primary Purpose or A Primary Purpose?
Because of a perceived increase in corporate counsel’s business roles, the court required the Texas Brine lawyers to prove that “the primary purpose” of the emails was to secure legal advice. The court explained this “test” as whether the in-house lawyer participated in the communication “primarily for the purpose of rendering legal advice.” Merely identifying a legal issue in the email is insufficient—the “lawyer’s role as a lawyer must be primary to her participation.” More…
A former Indiana prosecutor surreptitiously listened to not one—but two—conversations between criminal defendants and their attorneys. Despite self-reporting and claiming lack of prejudice, the Indiana Supreme Court determined the prosecutor’s misconduct violated PR Rules 4.4(a) (violating third-person’s rights) and 8.4(d) (conduct prejudicial to the administration of justice), and imposed a four-year suspension “without automatic reinstatement.” In the Matter of: Robert Neary, 2017 WL 5082686 (Ind. Nov. 6, 2017). You may read the opinion here.
Listening from the War Room
Defense attorney David Payne arrived at the police station to interview his client, Brian Taylor, who faced a murder charge, and detectives escorted them to a room. The room contained video- and audio-recording capabilities, so detectives told Payne to disengage the “toggle switch” “unless you want us listening to your conversation.” More…