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Articles 1 - 7 of 7
Full-Text Articles in Law
Rules, Standards, And The Attorney-Client Privilege: When The Privilege Is "At-Issue" In The Discovery Rule Context, Kenneth Duvall
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 …
Rules, Standards, And The Attorney-Client Privilege: When Is The Privilege At-Issue In The Discovery Rule And Other Contexts?, Kenneth J. Duvall
Rules, Standards, And The Attorney-Client Privilege: When Is The Privilege At-Issue In The Discovery Rule And Other Contexts?, Kenneth J. Duvall
Kenneth J Duvall
Striking the right balance between a robust attorney-client privilege and a judicial system that maximizes access to the best evidence has always been difficult. In recent decades, the privilege battles have in large part been waged over one particular exception to the privilege: the “at-issue” carve-out. Under this exception, the holders of the privilege waive it when they place otherwise privileged communications at issue in the litigation not through outright consent but instead through their conduct. The troubling question has therefore been: what actions suffice to place communications at issue? Privilege defenders consider confidential communications to be at issue only …
Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp, David B. Alden, Matthew P. Silverstein
Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp, David B. Alden, Matthew P. Silverstein
Cleveland State Law Review
The question of whether Ohio should retain the waiver through voluntary testimony rule-assuming that is the current rule-is neither close nor difficult. The relevant statute dates back to the middle of the nineteenth century when Ohio enacted its first code of civil procedure, and if it in fact leads to a waiver, has been substantively unchanged in the intervening one hundred fifty plus years. The rule undermines the policies the attorney-client privilege was designed to further, and the policy on which the rule apparently was based-preventing perjured testimony-no longer has the primacy it did in the mid-nineteenth century and, in …
Evidence - Privilege Law - How Arkansas's New Rule Of Evidence Codifies "Selective Waiver" Of The Attorney-Client Privilege And Work-Product Protection And An Argument For A More Moderate Approach, Jonathan D. Mcfadden
Evidence - Privilege Law - How Arkansas's New Rule Of Evidence Codifies "Selective Waiver" Of The Attorney-Client Privilege And Work-Product Protection And An Argument For A More Moderate Approach, Jonathan D. Mcfadden
University of Arkansas at Little Rock Law Review
No abstract provided.
The Anticipation Misconception, Colin P. Marks
The Anticipation Misconception, Colin P. Marks
Faculty Articles
Many commentators and courts have cited to the Supreme Court decision of Hickman v. Taylor as the genesis of the work product doctrine and the requirement that, to be afforded protection, the material in question must be generated “in anticipation of litigation.” The oft quoted policy justification for the protection afforded is that attorneys should be allowed a “zone of privacy” within which to prepare their case for the client. This justification supports limiting protection only to work generated “in anticipation of litigation,” because, presumably, outside of this context there is no need for the “zone of privacy.” However, a …
Taking The Business Out Of Work Product, Michele M. Destefano Beardslee
Taking The Business Out Of Work Product, Michele M. Destefano Beardslee
Articles
Over the past fifteen years, a common set of questions has surfaced in different areas of scholarship about the breadth of the corporate attorney's role: Should the corporate attorney provide business advice when providing legal advice? Should the corporate attorney provide counsel related to other disciplines such as public relations, social responsibility, morals, accounting, and/or investment banking? Should the corporate attorney prevent corporate wrongdoing? Questions like these resound in the scholarship addressing the risks and benefits of multi-disciplinary partnerships, gatekeeping, moral counseling, ancillary services, and the application of the attorney-client privilege. When looked at in combination, these segregated discussions equate …
Confidentiality And Claims Of Ineffective Assistance, Peter A. Joy, Kevin C. Mcmunigal
Confidentiality And Claims Of Ineffective Assistance, Peter A. Joy, Kevin C. Mcmunigal
Faculty Publications
This column discusses what a defense lawyer should do when called upon to reveal client information in response to an ineffective assistance of counsel claim.