Freivogel on Conflicts
 
 
 
 
This and That - Part I

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This & That - Part II
This & That - Part III

Due to the amount of material in This and That, we have divided it into three pages: Part I, Part II, and Part III.  The topics covered on each page are as follows:

Part I - (this page)

  • Attorney-Client Privilege/Work Product
  • Confidentiality - Duty under Ethics Rules

Part II (click here)

  • Communicating with Represented Party - Rule 4.2
  • Conflicts - Uncategorized

Part III (click here)

  • Liability - not Conflicts-Related
  • Temporary Lawyers
  • UPL
  • Other

Attorney-Client Privilege/Work Product

Privilege in the law firm. Recognizing privilege: Restatement, § 73, Comments c and i; United States v. Rowe, 96 F.3d 1294 (9th Cir. 1996); Loop AI Labs Inc. v. Gatti, 2016 WL 730211 (N.D. Cal. Feb. 24, 2016) (upheld privilege); E-Pass Technologies, Inc. v. Moses & Singer, LLP, 2011 U.S. Dist. LEXIS 96231 (N.D. Cal. Aug. 26, 2011) (no privilege while representation continued); Cold Spring Harbor Lab. v. Ropes & Gray LLP, 2011 U.S. Dist. LEXIS 77824 (D. Mass. July 19, 2011) (parties and court seemed to assume no privilege if representation was ongoing); TattleTale Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP, 2011 U.S. Dist. LEXIS 10412 (S.D. Ohio Feb. 3, 2011) (privilege notwithstanding existing lawyer-client relationship); EEOC v. Kelley Drye & Warren LLP, 2011 U.S. Dist. LEXIS 6343 (S.D.N.Y. Jan. 20, 2011); Landmark Screens, LLC v. Morgan, Lewis & Bockius LLP, 2010 U.S. Dist. LEXIS 9435 (N.D. Cal. Jan. 15, 2010) (no privilege if representation continuing); Asset Funding Group, LLC v. Adams & Reese, LLP, 2008 U.S. Dist. LEXIS 96505 (E.D. La. Nov. 17, 2008) (no privilege where relationship extant); In re SonicBlue, Inc., 2008 Bankr. LEXIS 181 (N.D. Cal. Jan. 18, 2008) (no privilege if conflict; different result with outside counsel); Burns v. Hale and Dorr LLP, 242 F.R.D. 170 (D. Mass. 2007) (no privilege where conflict); Thelen Reid & Priest LLP v. Marland, 2007 U.S. Dist. LEXIS 17482 (N.D. Cal. Feb. 21, 2007) (firm does not have to produce certain internal documents even though relationship with client extant); Koen Book Distributors v. Powell, Trachtman, Carrle, Bowman & Lombardo, P.C., 212 F.R.D. 283 (E.D. Pa. 2002) (same holding as Bank Brussels, following).  Bank Brussels Lambert v. Rogers & Wells, 220 F. Supp. 2d 283 (S.D.N.Y. 2002) (no privilege for documents generated during representation); Nesse v. Shaw Pittman, 206 F.R.D. 325 (D.D.C. April 17, 2002; In re Sunrise Savings and Loan Lit., 130 F.R.D. 560, 595 (E.D. Pa. 1989); Hertzog, Calamari & Gleason v. The Prudential Ins. Co. of America, 850 F. Supp. 255 (S.D.N.Y. 1994); Lama Holding Co. v. Shearman & Sterling, 1991 U.S. Dist. LEXIS 7987 (S.D.N.Y. 1991); Edwards Wildman Palmer LLP v. Super. Ct., 2014 WL 6662053 (Cal. App. Nov. 25, 2014) (recognized privilege even though representation continuing); St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C., 2013 Ga. LEXIS 614 (Ga. July 11, 2013) (pro-law firm; said ethics rules don't matter); MDA City Apts. LLC v. DLA Piper LLP, 2012 Ill. App. LEXIS 201 (Ill. App. March 22, 2012) and Garvey v. Seyfarth Shaw LLP, 2012 Ill. App. LEXIS 132 (Ill. App. March 1, 2012) (in both cases court upheld privilege, notwithstanding continuing representation); RFF Family P'ship v. Burns & Levinson, LLP, 2013 Mass. LEXIS 571 (Mass. July 10, 2013) (pro law firm; cited N.Y. Op. 789 (2005)); Moore v. Grau, 2014 N.H. Super. LEXIS 20 (N.H. Super. Ct. Dec. 15, 2014) (followed Mass., Ga., and Ore.); Stock v. Schnader Harrison Segal & Lewis LLP, No. 651250/13 (N.Y. App. Div. June 30, 2016) (comprehensive opinion upholding privilege; must read); Crimson Trace Corp. v. Davis Wright Tremaine LLP, 2014 Ore. LEXIS 433 (Ore. May 30, 2014) (privilege works where representation ongoing); Versuslaw, Inc. v. Stoel Rives, LLP, 111 P.3d 866 (Wash. App. 2005) (no privilege if during representation).  N.Y. Op. 789 (2005) holds that these communications do not usually constitute a conflict of interest, thereby implying that the privilege should attach even though the representation in question is ongoing. The following trial court decisions recognize the privilege notwithstanding a current representation: JJ Holand Ltd. v. Fredrickson & Byron, P.A., 2014 U.S. Dist. LEXIS 148258 (D. Minn. Oct. 16, 2014) (affirming magistrate judge’s ruling); Coloplast A/S v. Spell Pless Sauro, PC, No. 27-CV-12-12601 (Minn. Dist. Ct., Hennepin County Nov. 22, 2013).

Law Review Articles on Law Firm Privilege.  Elizabeth Chambliss, The Scope of In-Firm Privilege, 80 NOTRE DAME L. REV. 1721, 1745 (II) (C) (2005); Mark J. Fucile, The Double Edged Sword: Internal Firm Privilege and the 'Fiduciary Exception', 76 DEF. COUNS. J. 313, 317-18 (IV) (July 2009); Barbara S. Gillers, Preserving the Attorney Client Privilege for the Advice of a Law Firm's In-House Counsel, 2000 PROF. LAW. 107, 111 (C) (2000); Francis J. Menton, Jr., Does the Attorney-Client Privilege Cover a Law Firm's Consultation With In-House Counsel About Issues Involving Current Clients?, 10 Engage: J. Federalist Soc'y Prac. Groups 111, 111 (July 2009).

Privilege In Law Firm; Doctrine not Extended to Insurance Companies.  Liberty Mut. Ins. Co. v. Tedford, 2009 U.S. Dist. LEXIS 72129 (N.D. Miss. Aug. 6, 2009).

Privilege In Law Firm; Appeal; no Stay.  Asset Funding Group, LLC v. Adams and Reese, LLP, 2009 U.S. Dist. LEXIS 71929 (E.D. La. Aug. 3, 2009).

Fiduciary Exception in Arizona. Kipnis Section 3.4 Trust v. Northern Trust Co., 2014 Ariz. App. LEXIS 103 (Ariz. App. June 3, 2014). In this opinion the court adopted the fiduciary exception to the attorney-client privilege. Thus, the trustee had to produce to the beneficiary communications with trustee’s counsel relating to trust administration. Any communications between the trustee and counsel relating to trustee personally would still be protected by the privilege.
       
Privilege and Work Product in Derivative Actions.  Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), is the leading case on the ability, in some cases, of plaintiffs in derivative actions to obtain the files of lawyers representing the entity relating to the conduct leading to the claim.  In In re International Systems & Controls Corporation Securities Lit., 693 F.2d 1235 (5th Cir. 1982), the Fifth Circuit held that Garner applied to privilege but not to work product. In Sigma Delta, LLC v. George, 2007 U.S. Dist. LEXIS 94213 (E.D. La. Dec. 20, 2007), the court discussed both cases in context of attempt to discovery a lawyer's file, which was prepared during and for litigation.

ABA Op. 05-437 (10/05) (on inadvertently transmitted privileged documents) withdrew ABA Op. 92-368 (11/92); ABA Op. 06-440 (5/06) (on unauthorized transmission of privileged documents) withdrew ABA Op. 94-382 (7/94).

Exhaustive (90+ pages) study of privilege, co-client rule, common interest rule, corporate families, and related concepts.  In re Teleglobe Communications Corp., 493 F.3d 345 (3d Cir. 2007).

Daily v. Greensfelder, Hemker & Gale, P.C., 2014 Ill. App. Unpub. LEXIS 1789 (Ill. App. Aug. 18, 2014). Law Firm represented Healthcare Provider No. 1 (HP1) and Healthcare Provider No. 2 (HP2) from time-to-time and on various matters. In 2003 HP1 and HP2 entered into a service agreement. Law Firm represented both and drafted the agreement. In 2009 HP1 sued Law Firm (this case) for various breaches relating to the relationship between HP1 and HP2. HP1 filed a discovery request asking for Law Firm’s “HP2 file.” Law Firm resisted on privilege and work product grounds. The trial court ordered the production of the file. In this opinion the appellate court affirmed. The court held that the “common representation” rule applied. Basically, that rule provides that when a lawyer represents two clients on the same matter, the privilege will not apply in a dispute between those clients. [Note: whether the result in this case is correct, we will leave to our privilege expert friends. We have two problems with the opinion. First, the court uses the term “common representation,” possibly causing confusion with the “common interest” rule, which applies to agreements between different lawyers representing different clients in the same matter. The preferred term for this case is “co-client” or “joint client.” See, Judge Ambro’s excellent discussion of these concepts at In re Teleglobe Commc’n Corp., 493 F.3d 345 (3d Cir. 2007). Second, the opinion bases its opinion in part on the so-called continuing duty of a lawyer to a former client, which is at best sloppy and at worst fallacious. See Charles W. Wolfram, Former-Client Conflicts, 10 Geo. J. Legal Ethics 677, 691-699 (1997).]

Common interest in California.  Meza v. H. Muehlstein & Co., 2009 Cal. App. LEXIS 1372 (Cal. App. Aug. 18, 2009).

Common interest in New Jersey. O’Boyle v. Borough of Longport, 2014 N.J. LEXIS 787 (N.J. July 21, 2014). In this opinion the New Jersey Supreme Court adopts the common interest doctrine (relating to the attorney-client privilege and work product). This includes communications among lawyers handling different matters. It is a good discussion of the development of the common interest doctrine around the United States.

Common interest in New YorkAmbac Assur. Corp. v. Countrywide Home Loans, Inc., 2014 N.Y. App. Div. LEXIS 8439 (N.Y. App. Div. Dec. 4, 2014). Bank of America and Countrywide negotiated and closed a merger agreement. There were multiple communications among their respective lawyers. This is a fraud suit by Ambac, an insurer of mortgage backed securities, against Bank of America and Countrywide. Ambac sought discovery of the aforesaid communications. The trial court granted the discovery. In this opinion the appellate court reversed. The court held that the communications were protected by the common interest doctrine, even though there was no litigation expected.

Federal Circuit in infringement case explains extent of waiver when opinion of counsel relied upon.  In re EchoStar Communications Corp., 448 F.3d 1294 (Fed. Cir. 2006).

Privilege not lost by use of E-mail.  City of Reno v. Reno Police Protective Ass’n., 59 P.3d 1212 (Nev. 2002), modified 2003 Nev. LEXIS 25 (Nev. May 14, 2003).

Employer May Obtain Employee Personal Text Messages.  Quon v. Arch Wireless Operating Co., 2008 U.S. App. LEXIS 12766 (9th Cir. June 18, 2008)

Court recognizes common interest doctrine in transactional context.  OXY Resources California LLC v. Superior Court, 115 Cal. App. 4th 874 (Cal. Ct. App. 2004).

In re Refco Securities Lit., 2011 U.S. Dist. LEXIS 14144 (S.D.N.Y. Feb. 14, 2011).  Applied the “internal musings” exception to  Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn LLP, 666 N.Y.S.2d 985 (N.Y. 1997).  Sage Realty held that clients are entitled to practically everything in their law firms’ files except “internal musings” among members of the firms.

One-off situation where party to an earlier common interest (possibly) decides to help other side.  Roush v. Seagate Technology, LLC, 150 Cal. App. 4th 210 (Cal. App. 2007).

When does presence of insurance broker at lawyer-client conversation waive the privilege?  Sony Computer Entertainment Am., Inc. v. Great Am. Ins. Co., 229 F.R.D. 632 (N.D. Cal. 2005).  When they cannot show that he needed to be there to assist in the defense.

Privilege/work product.  Conflicts checking document within law firm neither privileged nor work product.  East Maine Baptist Church v. Regions Bank, 2007 U.S. Dist. LEXIS 34408 (E.D. Mo. May 10, 2006).

Earlier "joint prosecution" agreement almost causes disqualification.  Summers v. UAL Corp. ESOP Committee, 2004 U.S. Dist. LEXIS 22878 (N.D. Ill. Nov. 10, 2004).

Privilege and technology: client gives her lawyer opponent’s privileged communications taken off opponent’s hard drive, but lawyer not disqualified.  MacDonald v. MacDonald, 2003 Cal. App. Unpub. LEXIS 7254 (Cal. App. July 29, 2003).

Lawyer may assert work product even though client waives.  Buck v. Aetna Life & Cas. Co., 1992 U.S. Dist. LEXIS 9061 (E.D. Pa. June 8, 1992).

Corporate employees, "public relations consultants," and "government affairs consultants."  Federal Trade Commission v. GlaxoSmithKline, 294 F.3d 141 (D.C. Cir. 2002).  To same effect, see In re Grand Jury Subpoena, 265 F. Supp. 2d 321 (S.D.N.Y. 2003), and In re Copper Market Antitrust Lit., 200 F.R.D. 213 (S.D.N.Y. 2001).  Cases finding communications with public relations consultants are not privileged are Haugh v. Schroder Investment Management North America Inc., 2003 U.S. Dist LEXIS 14586 (S.D.N.Y. Aug. 25, 2003), and Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000).

Sharing internal investigation with "independent auditor" does not waive work product protection.  Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., 2004 U.S. Dist. LEXIS 21543 (S.D.N.Y. Oct. 26, 2004).

Communications with auditors protected by work product.  Vacco v. Harrah's Operating Co., Inc., 2008 U.S. Dist. LEXIS 88158 (N.D.N.Y. Oct. 29, 2008).

When do lawyers in corporate internal investigation represent interviewed employees?  In re Grand Jury Subpoena, 415 F.3d 333 (4th Cir. 2005).

Communications with testifying expert not protected by work product doctrine.  Regional Airport Auth. of Louisville and Jefferson County v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006) (discusses both lines of cases; says this is majority rule); Mullins v. Tompkins, 2009 Fla. App. LEXIS 9955 (Fla. App. July 21, 2009); Baum v. Village of Chittenango, 218 F.R.D. 36 (N.D.N.Y. 2003); Helton v. Kincaid, 2005 Ohio App. LEXIS 2621 (Ohio App. June 6, 2005).

. . . but, designating a person as a testifying expert does not finally waive the privilege until the person is actually produced to testify or the employing party produces communications.  Shooker v. Superior Court,  4 Cal. Rptr. 3d 334 (Cal. App. 2003).

Employees using company E-mail to communicate with their personal lawyers may have waived privilege.  In re Asia Global Crossing Ltd., 322 B.R. 247 (S.D.N.Y. 2005), and Scott v. Beth Israel Med. Ctr. Inc., 847 N.Y.S.2d 436 (N.Y. Sup. Ct. 2007).  But, in Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. App. Div. 2010), the court said the privilege applied where the employee used her personal E-mail account.

Privilege waived when tax accountant shares privileged memorandum to law firm defending accountant with law firm for their mutual client: finding of no "common interest" agreement.  Denny v. Jenkens & Gilchrist, S.D.N.Y., No. 03 Civ. 5460 (SAS), 11/23/04.

Voluntarily revealing several lawyer's opinions is waiver regarding another.  American Steamship Owners Mut. Protection and Indem. Assoc., Inc. v. Alcoa Steamship Co., Inc., 356 F. Supp. 2d 770 (S.D.N.Y. 2005).

Under California Evidence Code privilege does not survive client’s death.  HLC Properties, Ltd. v. Superior Court, 105 P.3d 560 (Cal. 2005).

When Does Dissolution of Entity Cause Loss of Privilege. Red Vision Sys., Inc. v. Nat’l Real Estate Info. Servs., L.P., 2015 WL 151530 (Super. Ct. Pa. Jan. 13, 2015). The court in this opinion said the privilege survives as long as there is someone authorized to assert it. This would include a bankruptcy trustee or statutory liquidator. Others were mentioned in the context of cases discussed in the opinion. The opinion appears to be a useful research tool for authorities around the U.S.

More on Dissolved Entity and Privilege. This is from a January 29, 2015, APRL listserv posting by Los Angeles Lawyer, James Polish: “. . . [M]ost cases . . . in recent years appear to follow the approach . . . [in] . . . Red Vision Systems.  See also the cases collected in Wallis v. Centennial Ins. Co., 2013 WL 434441 at *6-9 (E.D. Cal. 2013).  But see Lopes v. Vieira, 688 F. Supp. 2d 1050, 1061-62 (E.D. Cal. 2010)(‘a corporation dissolved pursuant to California law may not invoke or waive the attorney-client privilege even when it must defend itself as a party to litigation’ (citation omitted)); Restatement (Third) of the Law Governing Lawyers § 73, Comment k (‘When a corporation or other organization has ceased to have a legal existence such that no person can act in its behalf, ordinarily the attorney-client privilege terminates’).  There is an interesting twist on the issue in Melendrez v. Superior Court (Special Electric Company, Inc.), 215 Cal .App.4th 1343, 1354 (2013).  The court found that a dissolved company which had gone through bankruptcy, no longer had officers or directors, and existed only as a shell to pay out insurance proceeds to asbestos claimants could assert attorney-client privilege through the company's insurers as its de facto assignee. . . . [E]ven if the attorney-client privilege disappears, attorney work-product protection may apply.  See Lopes v. Vieira, supra, 688 F. Supp. 2d 1050, 1069-71, and opinion on reconsideration, 719 F. Supp. 2d 1199 (E.D. Cal. 2010).  Second, I am not aware of any exception to the duty of confidentiality that would entitle a lawyer to disclose voluntarily confidential information regarding a dissolved former client even if there is no longer an attorney-client privilege.  Compare Restatement  § 60, Comment e (duty of confidentiality extends beyond the death of a client.”

Internal investigation for corporate client may not be privileged.  Lewis v. United States, 2004 U.S. Dist. LEXIS 26680 (W.D. Tenn. Dec. 7, 2004).

Sharing E-mail to lawyer with adult daughter does not waive work product protection.  United States v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003).

Court holds ABA Op. 92-368 binding on ABA members.  Holland v. Gordy Co., 2003 Mich. App. LEXIS 1065 (Mich. App. April 29, 2003).

More on independent contractors.  Depends on the nature and extent of relationship.  Court relied heavily on In re Bieter Co., 16 F.3d 929 (8th Cir. 1994).  Alliance Construction Solutions, Inc. v. Department of Corrections, 54 P.3d 861 (Col. 2002).

"Selective waiver" in the Second Circuit (not).  In re Initial Pub. Offering Securities Lit., 2008 U.S. Dist. LEXIS 11058 (S.D.N.Y. Feb. 14, 2008).

"Selective waiver."  Tenth Circuit adopts majority rule rejecting "selective waiver."  In re Qwest Communications Int’l. Inc., 450 F.3d 1179 (10th Cir. 2006).  Excellent discussion of history and authorities.

"Selective waiver" successfully argued.  Producing documents to the SEC during an investigation, under a confidentiality agreement, does not waive the privilege.  Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 125 (Del. Ch. Oct. 25, 2002).   California privilege statute dictated different result in McKesson HBOC, Inc. v. Superior Court, 9 Cal. Rptr. 3d 812 (Cal. App. 2004).  Under California Evidence Code a company that gave in to USDOJ pressure to produce privileged documents did not waive the privilege as to this antitrust case.  Regents of the Univ. of Cal. v. Superior Court, 81 Cal. Rptr. 3d 186 (Cal. App. 2008).

Wells submission discoverable.  In re Initial Public Offering Securities Lit., 2003 U.S. Dist. LEXIS 23102 (S.D.N.Y. Dec. 24, 2003).

Lawyer receiving privileged communications from his own client disqualified.  Court approves ABA Op. 94-382 (1994).  Court relies, in part, on client's NDA with the employer/defendant.  Richards v. Jain, 168 F. Supp. 2d 1195 (W.D. Wash. 2001).  The court in Arnold v. Cargill, Inc., 2004 U.S. Dist. LEXIS 19381 (D. Minn. Sept. 24, 2004) relied heavily on Jain.  Lawyer obtained privileged documents from former employee of other side.  In Arnold v. Cargill Inc., 2004 U.S. Dist. LEXIS 22796 (D. Minn. Nov. 8, 2004), the same court allowed the disqualified law firm to share certain information with the client's prospective new lawyer.  But, in Arnold v. Cargill, Inc., 2007 U.S. Dist. LEXIS 89146 (D. Minn. Dec. 4, 2007), the court denied fees to the disqualified lawyers.  In Nesselrotte v. Allegheny Energy, Inc., 2008 U.S. Dist. LEXIS 56411 (W.D. Pa. July 23, 2008), a terminated in-house lawyer gave hundreds of documents to her lawyer.  The court neither disqualified her lawyer nor sanction the plaintiff or her lawyer because the documents were not important enough and their conduct not egregious enough.  The court cited Jain, as well as Maldonado v. State of New Jersey, 225 F.R.D. 120 (D.N.J. 2004), both cases in which a lawyer was disqualified.  In Gifford v. Target Corp., 2010 U.S. Dist. LEXIS 70293 (D. Minn. July 13, 2010), the court cited Arnold and Maldonado.  In Ashman v. Solectron Corp., 2008 U.S. Dist. LEXIS 98934 (N.D. Cal. Dec. 1, 2008), the court felt that the harm to the employer was not serious enough to justify dismissal or disqualification.  Others: Bona Fide Conglomerate, Inc. v. SourceAmerica, 2016 WL 4361808 (S.D. Cal. Aug. 16, 2016); Lynn v. Gateway Unified School Dist., 2011 U.S. Dist. LEXIS 143282 (E.D. Cal. Dec. 13, 2011); Stepnes v. Ritschel, 2010 U.S. Dist. LEXIS 53180 (D. Minn. June 1, 2010) (citing Nesselrotte); Burt Hill, Inc. v. Hassan, 2010 U.S. Dist. LEXIS 7492 (W.D. Pa. Jan. 29, 2010).  Jain and similar cases are discussed at Adam Pierson, What’s Yours is Ours: Making Sense of Inadvertent Disclosure, 22 Geo. J. Legal Ethics 1095 (2009).  In Castellano v. Winthrop, 2010 Fla. App. LEXIS 561 (Fla. App. Jan. 29, 2010), a party gave her lawyers thousands of electronic documents that she had obtained illegally from the other party; her lawyers were disqualified.  In Shukh v. Seagate Tech., LLC, 2010 U.S. Dist. LEXIS 133393 (D. Minn. Dec. 2, 2010), a magistrate judge declined to disqualify a lawyer who had received the other side's documents from his client because the other side had delayed demanding their return, the lawyer was careful to keep them confidential, and the lawyer was forthright with the other side.  The district judge affirmed, Shukh v. Seagate Tech., LLC, 2012 U.S. Dist. LEXIS 93854 (D. Minn. June 29, 2012.  In Parnes v. Parnes, 2011 N.Y. App. Div. LEXIS 156 (N.Y. App. Div. Jan. 13, 2011), the court ruled that the documents should be suppressed but the lawyer who received them should not be disqualified.  In Clark v. Superior Court, 2011 Cal. App. LEXIS 680 (Cal. App. June 4, 2011), the court disqualified a law firm that had received from Former Employee/Client, Employer’s privileged documents.  Similar to Clark, Thulin v. Gateway Unified Sch. Dist., 2012 Cal. App. Unpub. LEXIS 5932 (Cal. App. Aug. 14, 2012).  Moriber v. Dreiling, 2012 Fla. App. LEXIS 13920 (Fla. App. Aug. 22, 2012) (inadvertently produced document not particularly helpful; disqualification denied; Rule 4.4(b)).  James M. Fischer, Ethically Handling the Receipt of Possibly Privileged Information, 1 St. Mary's J. of Legal Malpractice & Ethics 200 (May 2011).  The title says it all.

In Jablow v. Wagner, No. A-0 (N.J. App. Div. April 8, 2015) the court disqualified a lawyer for violating N.J. Rule 4.4, which is more restrictive than the Model Rule. The court ignored the “inadvertent” point.

Another One. Gotham City Online, LLC v. Art.com, Inc., 2014 U.S. Dist. LEXIS 33680 (N.D. Cal. March 13, 2014). Three individuals own Gotham. For a time they also were employed by Art.com. After Art.com fired the individuals, Gotham filed this action alleging various computer related torts. Law Firm represented Gotham. Art.com moved to disqualify Law Firm because Law Firm was using, in this case, privileged documents the individuals had taken from Art.com. In this opinion the court granted the motion.

United States, ex rel. Hartpence v. Kinetic Concepts, Inc. & United States, ex rel. Godecke v. Kinetic Concepts, Inc., 2013 U.S. Dist. LEXIS 74833 (C.D. Cal. May 20, 2013).  Qui tam cases.  Law Firm, representing Relators, received the defendant's privileged documents from Relators and, instead of seeking instructions from the court regarding their use, Law Firm quoted them in pleadings and made other use of them.  For that reason the court disqualified Law Firm.

. . . and, federal prosecutors get more slack when search warrant nets privileged documents.  United States v. Kaufman, 2005 U.S. Dist. LEXIS 18207 (D. Kan. Aug. 25, 2005).

Merits Incentives, LLC v. Eighth Jud. Dist. Ct., 2011 Nev. LEXIS 78 (Nev. Oct. 6, 2011).  Lawyer for one party ("Lawyer") received in the mail a CD containing confidential documents, including one privileged document, from an unidentified third party.  Soon thereafter Lawyer filed discovery responses clearly revealing receipt of the CD.  The other party moved to disqualify Lawyer for having seen the documents.  The trial court denied the motion, and in this opinion the Nevada Supreme Court affirmed.  The court held that, while Nevada Rule 4.4(b) relates only to documents "inadvertently" disclosed, and that the rule does not apply to this matter, a lawyer's only duty in this circumstance is to do what Lawyer did -- reveal receipt to the other side.  The court's analysis was very similar to that of the ABA Ethics Committee in Op. 11-460 (Aug. 2011).  This was also the approach of N.Y. City Op. 2012-1 (2012).

O'Shea v. Epson Amer., Inc., 2010 U.S. Dist. LEXIS 62809 (June 4, 2010).  Law Firm 1 and Law Firm 2 represented Employee in a wrongful termination matter.  Employee claims he was terminated because he had expressed concern about the quality of Employer's printers.  Later Firm 1 and Law Firm 2 filed a consumer class action against Employer relating to the quality of Employer's printers (this case).  There was overlap between Employee's claims and the class action claims.  Employer moved to disqualify Law Firm 1 and Law Firm 2 in this case because of their interaction with Employee in the wrongful termination matter.  In this opinion the court denied the motion because Employer could not show that Employee was in possession of "privileged or confidential information likely to give Plaintiffs an unfair advantage in this case."

Lawyer receiving other side's privileged documents by mistake not disqualified because his client had been privy to the information already.  Applied Digital Solutions, Inc. v. Vasa, 941 So. 2d 404 (Fla. App. 2006).  A similar holding relying upon Applied Digital Solutions is Manning v. Cooper, 2008 Fla. App. LEXIS 7218 (Fla. App. May 21, 2008).

Receipt of other side’s privileged documents from other side gets law firm disqualified.  Atlas Air, Inc. v. Greenberg Traurig, P.A., 2008 WL 4224398 (Fla. App. Sept. 17, 2008).

Violation of Rule 4.4; disqualification. Burch & Cracchiolo, P.A. v. Myers, 2015 WL 3511835 (Ariz. App. June 4, 2015). Petitioners, represented by Law Firm No. 1, sought to have a guardian appointed for Bradford. Bradford and his parents opposed. Petitioners subpoenaed the file from Bradford’s former law firm (“Law Firm No. 2”). Thinking that Law Firm No. 1 was new counsel for Bradford, Law Firm No. 2 turned the whole file over to Law Firm No. 1 without a meaningful privilege review. Bradford moved to disqualify Law Firm No. 1. The trial court granted the motion. In this opinion the appellate court affirmed. The principal finding on appeal was that by moving to disqualify Law Firm No. 1, Bradford did not waive the attorney-client privilege as to the documents in question.

Client Has the Good Stuff.  N.Y. Op. 945 (Nov. 7, 2012).  Lawyer represents H in a divorce proceeding.  H tells lawyer that H has access to W's E-mails, including W's communications with W's lawyer.  H has not given Lawyer the E-mails nor has H told Lawyer what was in the E-mails.  In this opinion the committee opines that, absent extraordinary circumstances, Lawyer is not required to tell W's lawyer about the E-mails.  The opinion discusses in some detail the applicability of Rules 1.6, 3.3, 4.4(b), and 8.4(d).

In re RSR Corp., 2013 Tex. App. LEXIS 6902 (Tex. App. June 5, 2013).  Employee of a corporate party No. 1 was a member of that party's litigation team.  He resigned from No. 1 and contacted lawyers for corporate party No. 2 ("Lawyers").  Lawyers met with Employee on several occasions and over many hours.  The trial court disqualified the Lawyers.  In this opinion the appellate court affirmed (denied mandamus).  The court held that because Lawyers met with a former member of the other side's litigation team and made no attempt to formally restrict the employee's disclosures, there was an irrebuttable presumption that the employee shared No. 1's privileged information and Lawyers should be disqualified.

Layer2 Commc’ns v. Flexera Software LLC, 2014 U.S. Dist. LEXIS 77693 (N.D. Cal. June 5, 2014). Company A is suing Company B. Employee moved from Company B to Company A. While at Company B Employee had conversations with a lawyer at Company B about issues in this case. Company B moved to disqualify the law firm for Company A (“Law Firm A”) because Law Firm A was exposed to Employee’s earlier communications with Company B’s lawyer. In this opinion the magistrate judge denied the motion. We are, perhaps, oversimplifying the opinion, but, basically, the court held that, without more, there is nothing wrong with, or disqualifying about, Law Firm’s being exposed to those communications. There is a fairly lengthy discussion of other California cases dealing with this kind of information.

Foss Mar. Co. v. Brandewiede, 2015 WL 5330483 (Wash. App. Sept. 14, 2015). Lawyer for Party A had several meetings with a former employee of Party B. The former employee gave Lawyer several documents that were arguably privileged, and a thumb drive that contained several privileged documents. Party B moved to disqualify Lawyer. The trial court granted the motion. In this opinion the appellate court reversed and remanded to the trial court. The opinion contains a discussion of what the moving party must show and what findings the trial court must make. Lawyers handling litigation in Washington should probably read the opinion.
 

ABA Formal Op. 11-460 (Aug. 4, 2011).  This opinion assumes that an employer searches its computer system and captures communications between an employee and the employee's personal lawyer.  The employer gives the communications to its outside law firm.  The opinion asks whether the outside law firm must notify the employee's lawyer of these events.  The opinion declines to apply MR 4.4(b) to this situation because the communications were not "inadvertent," a term used in the rule.  The opinion warns, however, that "other law" may compel some form of notification.  The cases and opinions on this "other law" are inconsistent.  One approach the opinion suggests is to ask the court for directions before reading the communications.

Class members providing former employer’s privileged documents to class counsel results in disqualification of class counsel and severance of class members.   Hall v. County of Los Angeles, 2005 Cal. App. Unpub. LEXIS 1139 (Feb. 9, 2005).

Divorce action.  Wife steals husbands documents, some privileged, and gives them to her lawyer.  What is the lawyer to do? Fla. Op. 07-01 (June 2007).

NY City Op. 2003-04 is an excellent review of authorities that follow or deviate from ABA Op. 92-368.

Excellent paper on pretexting.  Robert Sacoff, The Ethics of Deception, Pretext Investigations in IP Infringement Cases, November 2013.  Trademark lawyer Bob Sacoff has updated his concise and timely paper on pretexting.  While his thrust is the IP practice, the paper is an excellent survey of the cases, ethics opinions, and literature on pretexting.  Bob will send you a copy if you contact him at RWS@pattishall.com.

Plaintiff and former general counsel of defendant does not conflict out his lawyer.  Levin v. Raynor, 2004 U.S. Dist. LEXIS 25525 (S.D.N.Y. Dec. 17, 2004). 

Whistle-blower cannot sustain claim if only evidence is employer's privileged documents.  Willy v. Coastal Corp., No. 98-060 (Dept. of Labor Admin. Rev. Bd. Feb. 27, 2004).

Client suing former employer cannot use privileged information to which he was privy.  Shaffer v. OhioHealth Corp., 2004 Ohio App. LEXIS 15 (Ohio App. Jan. 8, 2004).

Inadvertently- produced privileged and confidential documents; ABA Op. 92-368 "violated," but no disqualification.  Court says ABA opinion "binding" on ABA members.  Holland v. Gordy Co., 2003 Mich. App. LEXIS 1065 (Mich. App. April 29, 2003).

Inadvertent production and waiver.  N.Y. County Op.730 (2002) adopted the strict approach of ABA Op. 92-368 (1992), which favors notice and return of documents in almost all circumstances.  Elkton Care Center Associates LP v. Quality Care Management Inc., 805 A.2d 1177 (Md. App. 2002) adopted the traditional majority view that the court must analyze the degree of care exercised by the party or lawyer producing the documents. 

Inadvertent disclosure does not result in waiver of privilege: a high-tech variation.  United States v. Rigas, 281 F. Supp. 2d 733 (S.D.N.Y. 2003).

Inadvertent waiver; opinion adopts new Model Rule 4.4(b) approach.  Miss. Op. 253 (June 17, 2005).

Inadvertent receipt of other side's privileged document in California.  Rico v. Mitsubishi Motors Corp., 2007 Cal. LEXIS 13892 (Cal. Dec. 13, 2007).  Court said lawyer must call the other side.

Speaking loudly to lawyer in presence of others does not preserve the privilege.  People v. Urbano, 26 Cal. Rptr. 3d 871 (Cal. App. 2005).

Huge speakerphone pratfall causes loss of privilege of overheard conversation and results in crime-fraud finding as to other communications.  Jasmine Networks, Inc. v. Marvell Semiconductor, Inc., 117 Cal. App. 4th 794 (Cal. App. 2004), appeal dismissed, 182 P.3d 513 (Cal. 2008).  In Howell v. Joffe, 483 F. Supp. 2d 659 (N.D. Ill. 2007) (same speakerphone screw-up), there evidently was no issue of crime-fraud, and the court upheld the privilege.

Accountant’s possession of privileged documents does not necessarily result in disqualification of the lawyer.  In re DiGiovanni, 2003 Cal. App. Unpub. LEXIS 9053 (Cal. App. Sept. 19, 2003).

When can seeing privileged documents get a lawyer disqualified?  Or, not? Whitener v. First Union Nat. Bank of Fla., 901 So. 2d 366 (Fla. App. 2005).

Work product: court applies "but for" test in case of document prepared for both litigation and non-litigation purposes.  Wells Dairy, Inc. v. American Industrial Refrigeration, Inc., 690 N.W.2d 38 (Iowa 2004).

Work Product.  Trying to depose the other side's lawyer.  Must be showing of undue hardship to get non-core work product.  In re Baptist Hospitals of Southeast Texas, 172 S.W.3d 136 (Tex. App. 2005).

Attorney-client privilege involving joint defense agreement among corporation and officers.  If corporation waives, privilege as to individuals also waived, unless communications not related to corporate affairs.  In re Grand Jury Subpoena, 274 F.3d 563 (1st Cir. 2001).

Earlier joint prosecution agreement did not cause disqualification.  In re Polaroid ERISA Lit., 354 F. Supp. 2d 494 (S.D.N.Y. 2005).

Massachusetts high court adopts common interest doctrine.  Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc., 870 N.E.2d 1105 (Mass. 2007).

The privilege in Illinois: district court resolves two issues: (1) inserting issue as waiver, and (2) member of "control group" and corporate privilege.  Dexia Credit Local v. Rogan, 2004 U.S. Dist. LEXIS 25635 (N.D. Ill. Dec. 20, 2004).   . . But, in Lama v. Preskill, 818 N.E.2d 443 (Ill. App. 2004), in a 2-1 decision the court held that a plaintiff relying on the “discovery rule” to defeat a statute of limitations claim waives her attorney-client privilege for communications with her lawyer.

Privilege – crime/fraud exception – breach of fiduciary duty by client.  Serious breach waives privilege; not-so-serious breach does not.  Niles v. Malardi, 2002 Fla. App. LEXIS 12793 (Fla. App. September 4, 2002).

Crime-fraud: extent of abrogation.  In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005).

Establishing crime/fraud.  Invesco Institutional (N.A.), Inc. v. Paas, 244 F.R.D. 374 (W.D. Ky. 2007).

To rule on a request for a crime/fraud finding the court must hold an evidentiary hearing.  BNP Paribas v. Wynne, 2007 Fla. App. LEXIS 17752 (Fla. App. Nov. 7, 2007).

Crime/Fraud; Failure to Product Documents.  1100 West, LLC v. Red Spot Paint & Varnish Co., Inc., 2009 U.S. Dist. LEXIS 7320 (S.D. Ind. Jan. 30, 2009).

Crime-fraud is a function of client’s intentions and conduct, not the lawyer’s.  State Farm Mut. Auto. Ins. Co. v. Hawkins, 2011 U.S. Dist. LEXIS 13510 (E.D. Mich. Feb. 10, 2011).

Privilege waived as to one set of lawyers by suing another set of lawyers.  Ward v. Graydon, Head & Ritchey, 770 N.E.2d 613 (Ohio App. 2001).

Premature release by court of defendant's sealed documents to plaintiff's lawyer gets plaintiff's lawyer disqualified.  Then, the Texas Supreme Court reverses, In re Nitla S.A. de C.V., 92 S.W.3d 419 (Tex. 2002).  The exact same thing happened in the following case, and the court followed Nitla, Coral Reef of Key Biscayne Developers, Inc. v. Lloyd’s Underwriters at London, 911 So. 2d 155 (Fla. App. 2005).

Healthcare audits and attorney-client privilege.  Schmidt, Long & Assoc., Inc. v. Aetna U.S. Healthcare, Inc., 2001 U.S. Dist. LEXIS 7145 (E.D. Pa. 2001).

Accountants' communications under Kovel, and the "common-interest" doctrine.  Cavallaro v. United States, 284 F.3d 236 (1st Cir. April 1, 2002).

Status of tax accrual work papers shared with outside auditor.  Not protected by privilege or work product.  United States v. Textron Inc., 2009 U.S. App. LEXIS 18103 (1st Cir. Aug. 13, 2009).

Comm'r of Rev. v. Comcast. Corp., 2009 Mass. LEXIS 31 (Mass. March 3, 2009).  Court held that communications between an in-house corporate counsel and outside tax accountants consulted by him regarding the structuring of a sale of stock mandated by an antitrust consent judgment are not protected by the privilege, but are protected by work product immunity.

Court cannot order limited exposure of privileged documents to the other side.  In re Dow Corning Corp., 261 F.3d 280 (2d Cir. 2001).

Trustee/Bank tried to conceal conflict; crime-fraud issues; bank subordinated trust's rights to its rights on loan made by the trustee's banking side.  First Union National Bank v. Turney, 824 So. 2d 172 (Fla. App. 2001).

Wide-ranging opinion on privilege by Wisconsin Supreme Court.  Lane v. Sharp Packaging Systems, Inc., 640 N.W.2d 788 (Wis. 2002).

Thorough (55 pages) review of work product doctrine.  In re Grand Jury Subpoena, 220 F.R.D. 130 (D. Mass. 2004). Here's another: Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264 (E.D. Va. 2004).

Construing Pennsylvania's privilege statute.  Not all communications from lawyer to client are privileged.  Coregis Ins. Co. v. Kafrissen, 186 F. Supp. 2d 567 (E.D. Pa. 2002).

Privilege and conversations with insurance broker employees.  SR International Business Ins. Co. v. World Trade Center Properties, LLC, 2002 U.S. Dist. LEXIS 10919 (S.D.N.Y. June 19, 2002).

Communications that are "extra-judicial" are limited.  XYZ Corp. v. United States, 348 F.3d 16 (1st Cir. 2003).

D.C. Bar adopts approach of ABA Op. 94-382 as to receipt of privileged documents from third parties.  D.C. Op. 318 (December 2002).

Relationship between lawyer for carrier under claim for uninsured motorist benefits with defendant.  Crawford v. Henderson, 589 S.E.2d 204 (S.C. App. 2003).

Former director granted access to corporation's privileged documents.  Inter-Fluve v. District Court, 112 P.3d 258 (Mont. 2005).

Privilege of outside directors' communications with their personal lawyers cannot be waived by bankruptcy trustee for company.  Ex parte Smith, 942 So. 2d 356 (Ala. 2006).

Law firm opposes production of documents, not on privilege grounds, but on "no jurisdiction" grounds.  Ratliff v. Davis Polk & Wardwell,  354 F.3d 165 (2d Cir. 2003).

Privilege survives death of "testator" where will never executed.  Gould, Larson, Bennet, Wells and McDonnell, P.C. v. Panico, 869 A.2d 653 (Conn. 2005).

Under Wisconsin statute privilege not waived by lawyer's voluntary handing over of privileged documents.  Harold Sampson Childrens Trust v. Linda Gale Sampson 1979 Trust, 679 N.W.2d 794 (Wis. 2004).

Privilege: consent from surviving spouse will waive privilege.  State of Ohio v. Doe, 803 N.E.2d 777 (Ohio 2004).

Explains role of privilege in Rule 4.2 situations.  Smith v. Kalamazoo Ophthalmology, 322 F. Supp. 2d 883 (W.D. 2004).

Privileged documents erroneously reviewed but not taken with not grounds for disqualification.  In re Parnham, 2006 Tex. App. LEXIS 8252 (Tex. App. Sept. 21, 2006).

Privilege in fiduciary context.  Wachtel v. Health Net, Inc., 482 F.3d 225 (3d Cir. 2007) .  This opinion involves the attorney-client privilege in the context of representation of fiduciaries.  The ruling was narrow.  The court held that insurance companies that sell policies to ERISA plans are not subject to the “fiduciary exception” to the attorney-client privilege.

Establishing crime-fraud in the Ninth Circuit.  In re Napster, Inc. Copyright Lit., 479 F.3d 1078 (9th Cir. 2007).

Showing required for crime/fraud finding.  Catton v. Defense Technology Systems, Inc., 2007 U.S. Dist. LEXIS 84454 (S.D.N.Y. Nov. 15, 2007).

Good discussion on the differences between the privilege and duty of confidentiality under ethics rules. Adams v. Franklin, 924 A.2d 993 (D.C. App. 2007) .

Texas "snap-back" provision on inadvertent disclosures does not apply to inadvertent disclosures to testifying experts.  In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007) .

Alleged ethical violation by lawyer does not cause waiver of client's privilege.  Lyman v. St. Jude Medical S.C., Inc., 2007 U.S. Dist. LEXIS 44290 (E.D. Wis. June 18, 2007).

Breadth of privilege waiver where client sues law firm.  Creditanstalt Investment Bank AG v Chadbourne & Parke LLP, 831 N.Y.S.2d 705 (N.Y. App. 2007). 

Seventh Circuit addresses: (1) the common interest doctrine; (2) crime-fraud findings; and (3) exception to the tax practitioner privilege.   United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007).

Lawyer may maintain opinion work product protection where lawyer did not know of client's crime/fraud activities.  In re Green Grand Jury Proceedings, 492 F.3d 976 (8th Cir. 2007).

Inadvertent facsimile (fax).  Carbis Walker, LLP v. Hill, Barth and King, LLC, 930 A.2d 573 (Pa. App. 2007).  Court adopted reasonableness test and found waiver in case of two-page fax to client.

Use of special counsel's investigation report waives privilege.   Gingrich v. Sandia Corp., 165 P.3d 1135 (N.M. App. 2007).

Trial court should have taken evidence before ordering party to turn over entire litigation file.  Grace v. Mastruserio, 2007 Ohio App. LEXIS 3580 (Ohio App. Aug. 3, 2007).

Patent infringement.  Willfulness.  Some significant changes by the Federal Circuit.  In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007).

Insured's examination under oath to casualty insurer not discoverable.   Reynolds v. State, 963 So. 2d 908 (Fla. App. 2007).

Status of SEC investigation documents.  Gavin v. United States, 2007 U.S. Dist. LEXIS 62252 (D. Minn. Aug. 23, 2007).

Analysis of privilege in corporate context, where lawyers and non-lawyers share communications, are copied, etc.  In re Vioxx Prods. Liab. Lit., 501 F.Supp.2d 789 (E.D. La. 2007) (August 14, 2007).

Waived when special committee of board shares privileged communications with other board members. Ryan v. Gifford, 2007 Del. Ch. LEXIS 168 (Del. Ch. Nov. 30, 2007).

Asset Sale; What Happens to Privilege?  Postorivo v. AG Paintball Holdings, Inc., 2008 WL 343856 (Del. Ch. Feb. 7, 2008).

When can former executives get corporate communications?  People v. Greenburg, No. 401720/05 (N.Y. App. Feb. 19, 2008).

In bad faith action when can litigants get at the entire claims file?  State Farm Mut. Auto. Ins. Co. v. O’Hearn, 2008 Fla. App. LEXIS 3302 (Fla. App. March 7, 2008).

Corporate director cannot get at privileged documents in case he filed against corporation.  Tritek Telecom, Inc. v. Super. Ct., 2009 Cal. App. LEXIS 7 (Cal. App. Jan. 7, 2009).

Submitting to deposition without raising privilege waives it.  S&I Investments v. Payless Flea Market, Inc., 2009 Fla. App. LEXIS 6043 (Fla. App. May 27, 2009).

Sending E-mail with a single privileged document, as opposed to discovery of many documents, not inadvertent; privilege/work product waived.  Great American Assur. Co. v. Liberty Surplus Ins. Corp., 2009 U.S. Dist. LEXIS 93199 (N.D. Cal. Sept. 18, 2009).

Criminal case; court scoffed at “privileged” or “work product” designations on documents.  United States v. Hatfield, 2009 U.S. Dist. LEXIS 106269 (E.D.N.Y. Nov. 13, 2009).

Gucci America, Inc. v. Guess?, Inc., 2011 U.S. Dist. LEXIS 15 (S.D.N.Y. Jan. 5, 2011).  Trademark infringement case.  The plaintiff submitted a privilege log containing communications with its general counsel.  The defendant moved for production of those communications because the general counsel was only an inactive member of the California Bar.  The magistrate judge held that because the general counsel was not an active member of any bar, and because the plaintiff's failure to ascertain that fact was not reasonable, the privilege did not apply.  In this opinion the district judge reversed, holding that Gucci did not have a duty to ascertain the lawyer’s admission status in order to maintain the privilege.

United States v. Daugerdas, 2010 U.S. Dist. LEXIS 126699 (S.D.N.Y. Nov. 23, 2010).  Law Firm was engaged by an accounting firm partnership ("BDO") to evaluate its criminal exposure arising out of its marketing fraudulent tax shelters.  For a brief period Law Firm represented individual partners in connection with their compensation.  In this criminal prosecution against several of those partners arising out of the fraudulent tax shelters, those partners sought an order preventing the government from using communications between BDO and Law Firm.  BDO had waived the attorney-client privilege.  In this opinion the court ruled that the government could use the communications between BDO and Law Firm relating to the criminal evaluation, but could not use communications relating to the compensation arrangement.  In connection with the first holding the court held that the partnership was distinguishable from the partners as to the privilege waiver.

Gucci America, Inc. v. Guess?, Inc., 2011 U.S. Dist. LEXIS 15 (S.D.N.Y. Jan. 5, 2011).  Corporation under no duty to ascertain whether in-house lawyer general counsel is properly admitted or credentialed in order to preserve privilege.

Privilege Context.  Girl Scouts-Western Okla., Inc. v. Barringer-Thompson, 2011 Okla. LEXIS 22 (Okla. March 29, 2011).  Scout Corp. No. 1 merged with Scout Corp. No. 2, with the latter being the surviving entity.  No. 2 brought a replevin action against No. 1's former lawyer ("Lawyer") to recover her files pertaining to No. 1.  Lawyer resisted, claiming attorney-client privilege.  The trial court ruled for No. 2, and in this opinion, the supreme court affirmed.  The court held that No. 2, the surviving entity, owns the privilege previously owned by No. 1, citing CFTC v. Weintraub, 471 U.S. 343 (1985), and Tekni-Plex, Inc. v. Meyer and Landis, 674 N.E.2d 663 (N.Y. 1996).

Genovese v. Provident Life & Accident Ins. Co., 2011 Fla. LEXIS 621 (Fla. March 17, 2011).  The court held: 

when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action.

Gen-Probe Inc. v. Becton, Dickinson & Co., 2012 U.S. Dist. LEXIS 49028 (S.D. Cal. April 6, 2012).  Co. A (plaintiff in this case) hired Co. B to develop a product.  Co. B hired C, an independent contractor, to help develop the product.  The resulting contracts provided, in effect, that all rights to the product would be assigned to Co. A.  In this case the defendant sought to discover all communications between Co. A's outside counsel and C.  In this opinion the magistrate judge held that the communications were privileged.

Privilege within Organization.  ABA/BNA 30 Law. Man. Prof. Conduct 55 (Jan. 15, 2014).  Excellent article on protecting the attorney-client privilege within an organization.  The article includes discussion of the impact of F.R.E. 502, subject matter waiver, disclosure to the government, placing confidences in issue, and the common interest doctrine.  This first appeared online on January 14, 2014, to be received in hard copy probably the week of January 20, 2014.

In re RSR Corp., 2015 WL 7792871 (Tex. Dec. 4, 2015). Law Firm, representing Plaintiff, hired Witness, to be a fact witness. Witness is the former finance manager of Defendant. Witness had no litigation responsibilities while with Defendant. Defendant moved to disqualify Law Firm. The trial court granted the motion. In this opinion the court granted mandamus and remanded to the trial court. The court instructed the trial court to reconsider based upon the factors outlined in In re Meador, 968 S.W.2d 346 (Tex. 1998), rather than in Am. Home Prods. Corp., 985 S.W.2d 68 (Tex. 1998). The latter case dealt with migratory nonlawyers who had had litigation responsibilities with their old firms and imposed a screening requirement at their new firms. The focus in Meador was the extent to which the former employer’s privileged information was at risk.

Communications among corporate counsel and former employees not protected by privilege. Newman v. Highland High School Dist. No. 203, 2016 WL 6126472 (Wash. Oct. 20, 2016).

Confidentiality - Duty under Ethics Rules


Metadata.  Authorities are split on the propriety of digging for metadata in documents received from others.  Ethics opinions holding that doing so is unethical are: Ala. State Bar Office of Gen. Csl., Op. 2007-02 (March 14, 2007); Ariz. Op. 07-03 (November 2007); D.C. Op. 341 (Sept. 2007); Fla. Bar Prof’l Ethics Comm., Op. 06-02 (Sept. 15, 2006); Me. Op. 196 (Oct. 2008);N.H. Op. 2008-2009/4 (April 2009) (opinion not public); N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. No. 749 (Dec. 14, 2001) & 782 (2004); and W. Va. Op. 2009-1 (2009).  Opinions that hold that such conduct is not unethical are: A.B.A. Op. 06-442 (Aug. 5, 2006); Md. State Bar Ethics Comm., Op. 2007-09 (Oct. 16, 2006); Pa. Op. 2009-100 (date unknown) (opinion not public); and Vt. Op. 2009-1 (undated).  An opinion taking a middle ground is Col. Op 119 (2008).  Minn. Op. 22 (March 26, 2010) says merely that the recipient must notify the sender under Minn. Rule 4.4.  See Hricik, Mining for Embedded Data: Is it Ethical to Take Intentional Advantage of Other People’s Failures?, 8 N.C. J. L. & Tech. 231 (2007).  Wash. Op. 2216 (2012) provides that a lawyer's duty of confidentiality includes the duty to remove metadata from documents to be provided to third parties.  The opinion also provides that a lawyer receiving such a documents may ethically look for metadata but, pursuant to Rule 4.4(b), must advise the other side of any discovery.  Last, the opinion provides that it would be unethical for the recipient of a scrubbed document to hire forensic specialists to find scrubbed data.

Wis. Op. EF-17-02 (April 4, 2017). This opinion holds that client identity is confidential and subject to Rule 1.6.

Ore. Op. 2011-184 (March 2011).  ABA Op. 98-411 (1998) had discussed a lawyer's duty of confidentiality when seeking advice about a client matter from a lawyer from another firm.  The upshot was that the inquiring lawyer had to use a hypothetical and not reveal the client's identity without the client's consent.  In this opinion the Oregon Bar Board of Governors reaffirmed the ABA position, adding that the same principles apply with the use of new technologies such as listservs.

Violation of Rule 1.6(a) where lawyer reveals information that is publicly available.  Iowa Sup. Ct. Att'y Disc. Bd. v. Marzen, 2010 Iowa Sup. LEXIS 23 (Ia. March 19, 2010).

ABA Op. 473 (Feb. 17, 2016), “Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information.” This is a common-sense treatment of the subject. It replaces ABA Op. 94-385 (1994), primarily because of the intervening changes to Model Rule 1.6. We will leave it others for additional comment.

Cocktail chatter earns a private reprimand.  In re Anonymous, No. 18S00-DI-73 (Ind. Aug. 27, 2010).

ABA Formal Op. 11-459 (Aug. 4, 2011).  This opinion discusses the duties of a lawyer communicating with a client where the the lawyer has reason to believe that the client is using a system that might be susceptible to interception by a third party.  Basically, the lawyer should warn the client of the consequences of this interception.  The opinion discusses in some detail those cases and opinions that deal with the client's use of her employer's system to communicate with her personal lawyer.  It is a good research tool on that point.

Pa. Op. 2011-200 (undated).  This is an excellent discussion of cloud technology and the use of that technology by lawyers.  It analyzes the applicable ethics rules and concludes that lawyers may use cloud technology if they are careful to protect client information.

Restriction of Practice.  N.Y. Op. 858 (March 17, 2011).  The committee held that a company could require in-house lawyers to sign confidentiality agreements without causing a violation of N.Y. Rule 5.6(a)(1), provided that the agreement does not go beyond the lawyers' confidentiality obligations under Rules 1.6 and 1.9.

Rare case where court enforces self-defense exception to Rule 1.6, and rare case where client makes claim against his lawyer for disclosing information.  Hamilton v. Rubin, 2006 Mich. App. LEXIS 2059 (Mich. App. June 27, 2006).

Multiple representation.  D.C. Op. 327 (March 2005), is a sensitive treatment of this issue.  Lawyer is representing A and B in a matter.  A tells Lawyer something and asks the lawyer to keep it confidential.  Lawyer believes that B needs the information for purposes of the representation.  A will not allow Lawyer to tell B.  Lawyer must withdraw from both representations.  The opinion discusses ways lawyers can avoid this result.  For variations on this issue see A. v. B., 726 A.2d 924 (N.J. 1999); cmt. l to § 130 of the Restatement; N.Y. Op. 555 (1984); Fla. Op. 95-4 (1997); and Ga. Op. 03-2 (2003) (lawyer must not disclose and must withdraw).

Lisa H. Nicholson, A Hobson's Choice for Securities Lawyers in the Post-Enron Environment: Striking a Balance Between the Obligation of Client Loyalty and Market Gatekeeper, 16 Geo. J. Legal Ethics 91 (Fall 2002).  Article on the ethics rules and securities law liability of law firms.

California.  No right of self-defense disclosures of client information in action by third parties.   L.A. County Op. 519 (Feb. 26, 2007).

California lawyer permitted to disclose, and to testify about, former client's threats to kill people.  People v. Chanh Minh Dang, 113 Cal. Rptr. 2d 763 (Cal. App. 2001).

What is covered by Rule 1.6; very broad in Nevada.  Nev. Op. 41 (June 24, 2009).

Lawyer discovers that court submission was false and must withdraw it.  N.Y. Op. 781 (Dec. 8, 2004).

Unremarkable opinion on reasonableness in using technology to communicate.  Cal. Op. 2010-179 (undated)

Rare case on liability for misdirected facsimile.  Poway Land, Inc. v. Hillyer & Irwin, 2002 Cal. App. Unpub. LEXIS 10786 (Cal. App. Nov. 21, 2002).

Unencrypted E-mail OK.  Audrey Jordan, Note, Does Unencrypted E-mail Protect Client Confidentiality?, 27 Am. J. Trial Advoc. 623 (Spring 2004).

Liberal opinion on use of cell phones and Internet E-mail.  Del. Op. 2001-2 (2001).

Lawyer cannot reveal client's confidences even though client contractually obligated to reveal them to others.  Va. Op. 1811 (2005).

Disclosing client fraud in Texas.  Tex. Op. 603 (Nov. 2010).

Outsourcing.  N.H. Op. 2011-12/5 (Dec. 2011), New York City Op. 2006-3 (Aug. 2006), Tex. Op. 572 (June 2006), and Fla. Op. 07-02 (Sept. 2007) tell you how to do it ethically.

In-house lawyers permitted to see competitors’ confidential documents under threat of severe sanctions.  United States v. Sungard Data Systems, Inc., 173 F. Supp. 2d 20 (D.D.C. 2001).

Lawyer disciplined for disclosing too much to opponent in motion to withdraw.  In re Gonzalez, 773 A.2d 1026 (D.C. App. 2001).

Confidentiality duties of former in-house lawyers in suing former employer.   Spratley v. State Farm Mut. Automobile Ins. Co., 78 P.3d 603 (Utah 2003).  The plaintiffs are former State Farm in-house lawyers.  The have sued State Farm for a number of torts relating to their alleged force resignations.  They took confidential documents with them when they left.  They attached some of these documents to their complaint.  The trial court ordered the plaintiffs to return all confidential documents and to refrain from disclosing any client confidences while prosecuting their claims.  The trial court also disqualified the plaintiffs’ law firm because it had been privy to the confidential information.  The Utah Supreme Court reversed.  It ruled that the self-defense exception to Rule 1.6 applied.  It ruled that the trial court could protect State Farm with procedures such as filing evidence under seal.  It ruled that while the plaintiffs had to return any original documents they had taken, they had a right to keep copies.  Lastly, the court reversed the order disqualifying plaintiffs’ law firm, saying that the practical effect of the trial court’s ruling was to deny the plaintiffs the ability to hire counsel.  A very similar case involving a former general counsel that relies heavily on Spratley is Alexander v. Tandem Staffing Solutions, Inc., 881 So. 2d 607 (Fla. App. 2004).

When can in-house lawyer sue under Minnesota Whistleblower Act (and when not).  Kidwell v. Sybaritic, Inc., 2008 Minn. App. LEXIS 307 (Minn. App. June 3, 2007).

Defendant law firm can share plaintiff/former client's confidences with counsel for the defendant law firm.  Nesenoff v. Dinerstein & Lesser, P.C., 786 N.Y.S.2d 185 (N.Y. 2004).

Good discussion on the differences between the privilege and duty of confidentiality under ethics rules. Adams v. Franklin, 924 A.2d 993 (D.C. App. 2007).

California privilege law and insurance company internal communications.  Zurich Amer. Ins. Co. v. Superior Ct., 66 Cal. Rptr. 3d 833 (Cal. App. 2007).

Parties changing employers taints case, causing dismissal.  Alpha Funding Grp., Inc. v. Continental Funding, LLC, 2008 N.Y. Misc. LEXIS 4767 (N.Y. S. Ct. Aug. 15, 2008).  Alpha and Continental were competitors in the mortgage brokerage business.  A group of employees left Alpha and joined Continental.  Alpha sued the employees and Continental for theft of trade secrets and a host of other torts.  Law Firm represented Continental and the employees.  After the case was a year or so old, the ringleader of the defendant employees and several other defendants re-joined Alpha.  For that reason Continental moved to have the case dismissed.  In this opinion the court granted the motion, saying that the restored employees, including the ringleader, would have much privileged and confidential information irretrievably tainting the case against the remaining defendants.

Lawyer's obligation when she learns that she has prepared a brief based upon client's misrepresentations.  D.C. Op. 350 (Oct. 2009).

North Carolina State Bar v. Sossomon, 2010 N.C. App. LEXIS 1768 (N.C. App. Sept. 7, 2010).  A lawyer was suspended for one year in part because he violated North Carolina’s version of MRs 1.6(a) & 1.8(b).

Fla. Op. 10-3 (Feb. 1, 2011).  Lawyer represented Client until Client's death.  Lawyer does not represent the personal representative of the estate.  The personal representative requests information about Client from Lawyer.  In this opinion the committee held, in effect, that Lawyer's duty of confidentiality survived Client's death, and that Lawyer can only make disclosures that would be consistent with the deceased Client's wishes.

In re Botimer, 214 P.3d 133 (Wash. 2009).  Lawyer was suspended in part because he had revealed to the IRS his former client's erroneous tax returns.  That disclosure did not fit within the exceptions to Washington's version of Rule 1.6.  Further, federal tax law only required the tax preparer to call the errors to the client's attention, not to the IRS's attention.

How an Unsolicited E-mail from a non-Client Might Cause an Attorney-Client Relationship and Duty of Confidentiality and How to Avoid that Result.  Wis. Op. EF-11-03 (July 29, 2011).

Svorinic v. Svorinic, 2012 BCSC 826 (CanLII) (S. Ct. B.C. June 4, 2012).  Lawyer represents H in this family law case.  Lawyer had previously represented W's prior husband in another court proceeding.  W moved to disqualify Lawyer in this case.  In this opinion the court granted the motion.  The court ruled that, although Lawyer never represented W, Lawyer became privy to W's confidential information in the earlier case, and there was a risk Lawyer would use that information in this case.

Williams v. Crown Liquors of Broward, Inc., 2012 U.S. Dist. LEXIS 86938 (S.D. Fla. June 5, 2012).  Defendant had provided confidential information to the lawyer for Plaintiff pursuant to a non-disclosure agreement ("NDA") signed by Plaintiff's lawyer and Plaintiff's accountant.  Because Plaintiff indicated that the accountant would testify, Defendant moved to disqualify Plaintiff's lawyer.  In this brief opinion the court denied the motion.  The court distinguished this case from those in which disclosure of confidential information to the other party had been inadvertent.

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