Law Commons^™

Secrets Clutched In A Dead Hand: Rethinking Posthumous Psychotherapist-Patient Privilege In The Light Of Reason And Experience With Other Evidentiary Privileges, Jason S. Sunshine

Journal of Law and Health

Attorney-client privilege was held by the Supreme Court to extend beyond death in 1996, albeit only ratifying centuries of accepted practice in the lower courts and England before them. But with the lawyer’s client dead, the natural outcome of such a rule is that privilege—the legal enforcement of secrecy—will persist forever, for only the dead client could ever have waived and thus end it. Perpetuity is not traditionally favored by the law for good reason, and yet a long and broad line of precedent endorses its application to privilege. The recent emergence of a novel species of privilege for psychotherapy, …

Conflicts Of Interest At An Organization’S Highest Authority: How The District Of Columbia’S Rules Of Professional Conduct Can Fail To Protect Private Organizations, Christopher Deubert

Catholic University Law Review

This Article examines how the District of Columbia’s incomplete incorporation of the Model Rules of Professional Conduct into its own Rules of Professional Conduct has created a scenario in which wrongdoing inside a private organization can flourish. In 2002, following the Enron scandal, the American Bar Association (ABA) revisited and revised its Model Rules of Professional Conduct. The ABA nevertheless took a conservative route, rejecting rules long proposed by experts which would have permitted attorneys aware of corporate crimes, fraud, and other wrongdoing to report their concerns to individuals or entities outside the organization’s reporting structure. Additional scandals unfolded contemporaneous …

The Judicial System’S Unjust Relationship With Attorney-Client Privilege: How Judges Knowingly (And Erroneously) Abrogate Important Contractual Arrangements In Corporate Transactions, Edward S. Adams

Michigan Business & Entrepreneurial Law Review

A Delaware court has recently recognized the need to enforce contracts that delineate where the attorney-client privilege rests after an asset transfer. This Article will argue that courts across the country should recognize the important and legitimate reasons for this type of decision. Part I will review how the attorney-client privilege functions for corporations and how courts respect the importance of the privilege in other contexts. Part II will review the fundamental corporate changes in which these questions can arise and situations in which courts choose to recognize the importance of protecting the attorney-client privilege. Part III will argue that …

Failing To Keep The Cat In The Bag: A Decennial Assessment Of Federal Rule Of Evidence 502'S Impact On Forfeiture Of Legal Privilege Under Customary Waiver Doctrine, Jared S. Sunshine

Cleveland State Law Review

Federal Rule of Evidence 502—providing certain exemptions from the surrender of attorney-client and work product privilege because a confidential item was disclosed—had great expectations to live up to after its enactment in 2008, as Congress and others heralded it as a panacea to litigation’s woes in the face of bourgeoning discovery. The enacted rule was the subject of much skepticism by the academic punditocracy, however. Ten years later, this Article surveys the actual results and finds that, regrettably, pessimism has proven the better prediction. Percolation of debate over the rule’s many ambiguities and courts’ disparate approaches have not resolved initial …

Ethical Limitations On Lawyer-To-Lawyer Online Consultations Regarding Pending Cases, Robert Derner

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and when lawyer-to-lawyer consultations are permitted in the online world. In all lawyer-to-lawyer consultations, but especially with the online variety, a lawyer must avoid violating the principle of confidentiality when consulting other lawyers about client matters. While in-person lawyer-to-lawyer consultations have been commonplace in the legal profession for decades, the rise of listservs and social media networks has caused many lawyers to seek advice from colleagues on the Internet.

In considering online lawyer-to-lawyer consultations, there are two major issues. Firstly, a lawyer must determine whether the jurisdiction in which he or she practices permits online lawyer-to-lawyer …

Attorney–Client Privilege In Bad Faith Insurance Claims: The Cedell Presumption And A Necessary National Resolution, Klien Hilliard

Seattle University Law Review

Attorney–client privilege is one of the most important aspects of our legal system. It is one of the oldest privileges in American law and is codified both at the national and state level. Applying to both individual persons and corporations, this expanded privilege covers a wide breadth of clients. However, this broad privilege can sometimes become blurred in relationships between the corporation and the individuals it serves. Specifically, insurance companies and those they cover have complex relationships, as the insurer possesses a quasi-fiduciary relationship in relation to the insured. This type of relationship requires that the insurer act in good …

2018 Survey Of Rhode Island Case Law

Roger Williams University Law Review

No abstract provided.

Attorney-Client Privilege And The Kovel Doctrine: Should Wisconsin Extend The Privilege To Communications With Third-Party Consultants?

Marquette Law Review

In today’s marketplace, the way that corporations conduct business is drastically changing, and lawyers are increasingly relying on third-party consultants, such as accountants or investment bankers, to facilitate them in providing accurate legal advice to corporate clients. Despite this reliance, whether the attorney–client privilege protects the communications between an attorney and a third-party consultant is often questioned. In United States v. Kovel, the Second Circuit found that the attorney–client privilege extended to communications between an attorney and a third-party consultant who acted as an interpreter. However, both federal and state courts have since split over the proper scope of the …

Reading The Prisoner's Letter: Attorney-Client Confidentiality In Inmate Correspondence, Gregory Sisk, Michelle King, Joy Nissen Beitzel, Bridget Duffus, Katherine Koehler

Journal of Criminal Law and Criminology

No one in our society has a more compelling need to communicate in complete confidence with a lawyer than a prisoner, when challenging a conviction as wrongful or prison conditions as unlawful. No one has a greater need to be able to engage in the uninhibited discussion of highly personal matters, tragic events, and official misconduct. A prisoner’s constitutional rights to freedom of speech, access to the courts, due process, and assistance of counsel are placed in unique jeopardy when a correctional system insists on prying into the substantive contents of legal mail.

In this Article, we explain the vital …

The Privilege Doctrines--Are They Just Another Discovery Tool Utilized By The Tobacco Industry To Conceal Damaging Information?, Christine Hatfield

Pace Law Review

This Comment will analyze the tobacco companies' use of the privilege doctrines to avoid litigation over the past thirty years, specifically focusing on the last fifteen years of litigation between this industry and its accusers. Part II of this Comment will discuss the pertinent discovery rules and the manner in which they are abused. Part III will examine the development, scope and limitations of the attorney-client privilege and work product doctrines, considering with particularity the corporate context and the applicability of the crime-fraud exception to these doctrines. Part IV will review the case law of the tobacco litigation, focusing on …

Review Of Privileged Documents In Trial And Deposition Preparation Of Witnesses In New York: When, If Ever, Will The Privilege Be Lost?, Michael J. Hutter

Pace Law Review

This article will examine New York’s refreshing recollection doctrine in the context of trial and deposition preparation of witnesses as to the consequences of the witness’s review of privileged writings. Initially, Part II will discuss Rule 612 of the Federal Rules of Evidence. The discussion will serve as the backdrop for the analysis of the above-mentioned issues under New York law. Part III will then examine the refreshing recollection doctrine as developed and applied to testifying witnesses at a trial or deposition by the New York courts. The examination will point out the doctrine’s key rules. Part IV discusses the …

Attorney-Client Privilege In Patent Litigation: In Re Spalding Sports Worldwide, Matt Rodgers

Oklahoma Journal of Law and Technology

No abstract provided.

The Impact Of Technological Developments On The Rules Of Attorney Ethics Regarding Attorney–Client Privilege, Confidentiality, And Social Media, Pamela A. Bresnahan, Lucian T. Pera

St. Mary's Journal on Legal Malpractice & Ethics

This article focuses on the development of the law of ethics and technology. Emphasis is placed on how technological developments have affected the rules and means by which lawyers practice law and certain ethical pitfalls that have developed hand-in-hand with technological advancements. Topics examined include: (1) the ways by which electronic communication has increased the potential for the attorney–client privilege to be waived and the resulting impact on the present-day practice of law; (2) the effect of social media on lawyers’ ethical obligations, including counseling clients regarding the client’s use of social media and the lawyer’s own use of social …

In Defense Of Patent Trolls: Patent Assertion Entities As Commercial Litigation Funders, Jean Xiao

Chicago-Kent Journal of Intellectual Property

This paper is the first to defend and commend the role of patent trolls in litigation. It argues that trolls either are not the sole source of patent litigation ills or are not responsible for these ills in the first place. Next, it demonstrates that trolls provide the same litigation-related benefits as commercial litigation funders, which also finance patent lawsuits. Troll commentators have ignored these benefits, for which funders are praised, in the evaluation of trolls. Finally, this paper explains that eliminating trolls will not only close off a source of these benefits but also worsen problems by shifting trolling …

An Analysis Of Austin Lawyers Guild V. Securus Technologies, Inc.: The Constitutional And Ethical Implications Of Using Illegally Recorded Attorney–Client Telephone Conversations As Derivative Evidence, Christina Santos

St. Mary's Journal on Legal Malpractice & Ethics

For the justice system to operate effectively, privileged communications between an attorney and his or her client should be afforded the utmost and strictest protections. Intrusion by law enforcement upon these communications severely diminishes the confidence and candor needed in the attorney-client relationship. Although the United States Supreme Court recognizes prosecutorial immunity and generally leaves prosecutorial discipline to state bar authorities, the Court has long held that the attorney-client privilege is needed for attorneys to effectively advocate on behalf of their clients.

Austin Lawyers Guild v. Securus Technologies, Inc., a civil class-action lawsuit, is currently pending before the United …

In-House Counsel Beware!, Katrice Bridges Copeland

Fordham Urban Law Journal

No abstract provided.

The Battle To Define The Scope Of Attorney-Client Privilege In The Context Of Insurance Company Bad Faith: A Judicial War Zone, Steven Plitt, Joshua D. Rogers

The University of New Hampshire Law Review

[Excerpt] "The attorney-client privilege is the "oldest of the privileges for confidential communications known to the common law."' The privilege is "[d]eeply rooted in public policy," and plays a 'vital role' in the administration of justice." As such, the privilege is "traditionally deemed worthy of maximum legal protection"' and "it remains one of the most carefully guarded privileges and is not readily to be whittled down." The privilege has come under assault in the insurance bad faith context in recent decades resulting in a "whittling down" of the privilege for insurance companies as a target party. Over the past couple …

Use Of Expunged Records In Attorney-Disciplinary Proceedings, Roland D. Ramos

St. Mary's Journal on Legal Malpractice & Ethics

The Texas Supreme Court’s decision in In re State Bar of Texas should be modified. In In re State Bar of Texas, the Court allowed the use of a criminal defendant’s expunged records in a subsequent disciplinary proceeding against his attorney. Allowing the use of expunged records for any purpose violates Texas law. For example, under the Texas Code of Criminal Procedure, it is an offense to knowingly release or use expunged records for any reason, unless a court’s final expunction order permits the expunged records to be retained for future use or if a defendant waives his or …

The Attorney-Client Privilege As Applied To Corporate Clients, Elinore Marsh

Akron Law Review

After sixty-six years of struggle and controversy surrounding the application of the attorney-client privilege to corporate clients the United States Supreme Court has taken one step in laying many questions to rest. Upjohn Co. v. United States was accepted by the Court to resolve differences in the circuits as to how far the privilege extends horizontally and vertically within the corporate structure. This comment discusses the ramifications of extending the privilege to an entity which operates only through its agents, the history of the privilege, the effect of the Upjohn decision and the questions which remain as yet unsolved.

Commodity Futures Trading Commission V. Weintraub, Thomas R. Himmelspach

Akron Law Review

After presenting a general discussion of the attorney-client privilege, this casenote will discuss the facts underlying Weintraub and then review the rationales of the Seventh Circuit and the Supreme Court in their respective holdings. This casenote will discuss other arguments which have been raised in support of the trustee's authority over the privilege. The casenote will conclude with a discussion of other policy and precedent arguments which urge that the trustee should not be given this authority.

University Of Akron School Of Law Commencement Address, Michael S. Greco

Akron Law Review

University of Akron School of Law Commencement Address...I want to talk with you today about the place of the lawyer in society – your place in society. About the challenges that now confront lawyers and our profession. And about how we must respond to those challenges. I begin with the importance of an independent legal profession in America.

Electronic Data, Electronic Searching, Inadvertent Production Of Privileged Data: A Perfect Storm, Donald Wochna

Akron Law Review

This article suggests that the practical impact of treating electronic searching as an expert function is to permit attorneys to focus and strategize on the process of electronic searching rather than on the completeness of document production. In effect, electronic searching permits attorneys to quit focusing on finding documents and begin focusing on identifying electronic sources of information on which reside relevant documents that can be extracted by means of electronic searching protocols.

Should The Medium Affect The Message? Legal And Ethical Implications Of Prosecutors Reading Inmate-Attorney Email, Brandon P. Ruben

Fordham Law Review

The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmate- attorney email.

This Note explores the cases that address whether federal prosecutors may read inmates’ legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all …

4th And 205: How A Rush Of Global Comments Blocked The Sec’S First Attempted Punt Of Attorney-Client Privilege Under Sarbanes-Oxley, John Paul Lucci

Touro Law Review

No abstract provided.

Two Notes On Evidence: Privileges And Hearsay, J. W. Deese

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Attorney-Client Privilege, Thomas E. Spahn

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Grand Jury Subpoena: Is It The Prosecutor's "Ultimate Weapon" Against Defense Attorneys And Their Clients?, Tara A. Flanagan

Pepperdine Law Review

No abstract provided.

Selective Disclosure: The Abrogation Of The Attorney-Client Privilege And The Work Product Doctrine, Zach Dostart

Pepperdine Law Review

No abstract provided.

United States V. Jicarilla Apache Nation: Why The Supreme Court's Refusal To Apply The Fiduciary Exception To Attorney-Client Privilege Stands To Diminish The Federal-Tribal Trust Relationship, Daniel W. Hart

American Indian Law Review

No abstract provided.

Rules, Standards, And The Attorney-Client Privilege: When The Privilege Is "At-Issue" In The Discovery Rule Context, Kenneth Duvall

Northern Illinois University Law Review

Ask a non-lawyer what the purpose of the judicial system is, and a popular answer would surely be to determine what happened between the parties. However, every attorney knows that the adversarial process is not as straight-forward as that, as many interests must be juggled by the judge as well as by the attorneys in the case. One of the interests that should be protected is the need for a legal mechanism within which clients can freely discuss their problems with their attorneys. This need is largely satisfied by the attorney-client privilege, which necessarily acts as one of the great …