A Non-Political, Legal Analysis of Trump Jr.’s Privilege Claim 3

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…

Court “Outraged” after Lawyer Eavesdrops on Privileged Conversations

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…

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…