Meeting Client in a Coffee Shop? Be Wary of Privilege Waiver

Lawyers are increasingly meeting individual clients and corporate-client employees in restaurants, coffee shops, and bars.  And this phenomenon is not limited to solo practitioners who use the local Starbucks as an office.  Firm-based lawyers more often interview a client’s employee or consultant over lunch rather than in their offices.  And in-house lawyers discuss confidential information with corporate employees in the company café.

A key component to the corporate attorney–client privilege is that lawyer–client conversations occur in a confidential setting.  In a recent Oregon case, a lawyer escaped privilege waiver for a meeting held in a restaurant, but only after having to prove that the tables around him were empty and that no one overhead the conversation.  While this was a privilege win, it should give lawyers pause about their client-meeting locations.  MacFarlane v. Fivespice, LLC, 2017 WL 1758052 (D. Ore. May 4, 2017).  You may read this decision here.

Restaurant Conversation

A former server at Café Murrayhill in Beaverton, Oregon filed a retaliation suit against the café.  The café’s lawyer met with the executive chef—at the restaurant.  Seems reasonable enough, but the meeting occurred in a restaurant booth and not in a private meeting room. More…

Law Firm DQ’d for Use of Inadvertently Disclosed Privileged Email

In a 2–1 decision, a California appellate court upheld a trial court’s disqualification of a law firm after one of its lawyers decided not to return an adversary’s privileged email and to use it offensively before obtaining a court order allowing him to do so.  The court issued the ruling even though the lawyer received the privileged email from his client—not opposing counsel—and it facially appeared that the opposing party had waived the privilege by forwarding to a third-party.  McDermott Will & Emery LLP v. Superior Court, 217 Cal. Rptr. 3d 47 (Ct. App. 2017).  You may read this lengthy—but instructive—opinion here.

Client Sends Privileged Email to Third-Party

The facts are a bit convoluted, so I’ll try to simplify.  Dick Hausman, the 80 year-old son-in-law of Allergan Pharmaceuticals’ founder, was the president of a holding company that managed the family’s investment portfolio.  The McDermott firm represented the holding company.  Mr. Hausman’s son, Rick Hausman, later became president and “a struggle for control” of the holding company ensued.  Dick Hausman retained lawyer Mark Blaskey to represent him in these disagreements. More…

MPR: Falwell, Jr., Uber, and a Personal Lawyer for Trump?

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

  • Remember the internal investigation into Baylor University’s sexual assault scandal? A former Baylor student pursuing Title IX claims against the university sought the deposition of Jerry Falwell, Jr. because Baylor’s Regents told Falwell “everything the investigating law firm had to say about what happened.”  The student argued privilege waiver for the investigation results, but the court tabled Falwell’s deposition for now, but may allow it later.  Stay tuned to this developing issue, and read the current opinion here.
  • In the pending trade-secrets case where Waymo alleges that Uber stole its technology to develop self-driving vehicles, there is a brewing privilege battle over Uber’s due diligence document associated with its acquisition of Otto, the self-driving truck start-up.  Read BuzzFeed’s story here.
  • The Fifth Circuit issued an instructive opinion regarding the adequacy of privilege logs and the necessity of trial courts conducting in camera reviews. Read the Bloomberg BNA’s article on the decision, which quotes yours truly, here.
  • To secure attorney-client privilege protection, does President Trump need a personal lawyer for the investigation into his campaign’s ties to Russia, or may he claim privilege over his discussions with lawyers in the office of Counsel to the President?  This article and this one discuss the issue.
  • The Indiana Supreme Court refused to review a lower court ruling that the attorney-client privilege protects former Governor and now VP Mike Pence’s emails from disclosure under a public-records request.  Story here.
  • A UK court recently permitted the country’s Serious Fraud Office to breach the attorney-client privilege and obtain access to a company’s internal investigation.  Interesting ruling that the company will appeal.  Story here.
  • South Dakota’s Attorney General is compelling a journalist to testify about her observations on tour of a local Tribe’s marijuana fields. Is that permissible, or does the journalist privilege prevent this?  Read the story here.
  • Shook Hardy & Bacon LLP published a blog post, available here, discussing a recent California decision applying the work-product doctrine to a forensic firm’s report following a data-breach investigation.