Penn State Loses Privilege Clash over Internal Investigation, and the Reason May Surprise You

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…

Privilege Protects Indemnitor and Indemnitee’s Discussions—If You Prove It

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…

MPR: Louisville AD, Harvey Weinstein, and the “Trump Dossier”

We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  Here is my Monthly Privilege Roundup of interesting privilege issues for October 2017.

    The Univ. of Louisville, citing attorney–client privilege, refuses to release its GC’s letter to fired AD Tom Jurich outlining the administration’s problems with how Jurich executed a 10-year, $160 million extension of the school’s apparel sponsorship with Adidas. Open-records advocates question whether the privilege actually applies to the letter.  You may read the story here.

→     Remember Jodi Arias, convicted killer of her boyfriend?  Her criminal defense attorney, now-disbarred Kirk Nurmi, recently published a tell-all book about his representation of Ms. Arias titled “Trapped with Ms. Arias.”  Arias, now serving a life sentence, sued her former attorney claiming that he revealed confidential, privilege information in the book.  She wants his book proceeds. Story here.

→     Harvey Weinstein reportedly retained attorney Lisa Bloom to investigate the background of women who accused Weinstein of sexual harassment in an effort to discredit them.  Bloom, who resigned from the representation, recently commented that she was not aware of the sexual assault allegations, but should have been.  Weinstein has now threatened Bloom with a lawsuit, claiming further comments would violate the attorney–client privilege.   Stories here and here. More…