To qualify as attorney work-product, a document must be “prepared in anticipation of litigation.” This means that the privilege does not attach until “at the very least some articulable claim, likely to lead to litigation,” has arisen. So are documents compiled prior to a claims decision always protected, or are they fair game during litigation? Well, it depends.
In a recent $70 million lawsuit involving turbine damage, a New York court held that an insurer cannot withhold pre-denial documents and communications simply because an attorney conducted the coverage investigation. In essence, the court asserted that neither the attorney-client privilege nor the work-product doctrine applied to reports prepared by outside counsel because the reports were created before the insurers made a “firm decision” to either approve or deny the claim, which involved $5 million in property damage and another $65 million in business interruption (BI) losses.
The state’s regional garbage agency won a victory this week when the state Freedom of Information Commission blocked the release of additional emails by former House Speaker Thomas D. Ritter on the grounds that they were covered by attorney-client privilege.
The FOI battle, which has already lasted for nearly two years, could now extend longer if, as expected, it heads to Superior Court in an appeal.
The clash could have potentially broader implications at the state Capitol if some communications between lawyer-lobbyists and their clients are deemed secret.
“It certainly opens the door to that,” said Hartford attorney Michael C. Harrington, who was seeking Ritter’s emails for his client, Hartford political consultant Matthew J. Hennessy. “This will allow any lobbyist, who happens to have a law degree, to create a veil of secrecy under the auspices of the privilege. Lobbying is not legal advice.”
Others, though, believe the ruling will have no long-term implications because the emails were read “in camera,” or in secret, by FOI commissioners who determined that they were related to legal issues. As such, lobbying and legal issues were kept separate.
The “at issue” doctrine represents the most frightening type of implied waiver. Litigants can trigger such a waiver without disclosing, referring to, or relying on privileged communications. Instead, an “at issue” waiver can occur if litigants assert some position that necessarily places “at issue” such privileged communications.
In Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264 (Alaska 2013), shareholders filed a derivative action against a company’s director and former law firm. The shareholders alleged that defendants engaged in fraudulent conduct of which the shareholders were unaware – although they were represented at the time by their own lawyer. The court found an “at issue” waiver – explaining that the shareholders “cannot be permitted to thrust their lack of knowledge into the litigation while simultaneously retaining the attorney-client privilege to frustrate proof of knowledge that negates the very foundation necessary to their positions.” Id. at 1280. The court ordered the shareholders to produce communications with their lawyer during the time they claimed ignorance of defendants’ alleged wrongdoing.
Corporations and their lawyers should be wary of assertions that might trigger a stealthy “at issue” doctrine waiver.
High-profile labor lawyer Gregory Kamer has been advising District Court administrators behind the scenes regarding the FBI’s investigation into Family Court marshals.
Kamer also has been defending court administrators in two wrongful termination lawsuits filed by former Family Court marshals and providing legal advice on internal disciplinary cases involving marshals.
Kamer originally was hired to work on issues related to a labor agreement with the marshals. Within the past year, relations have deteriorated between the marshals and court officials, and both sides are locked in litigation on several fronts over the working conditions of the marshals.
Since he was retained in October 2010, Kamer has been paid $13,087 in taxpayer money. The county pays his legal fees because it controls the budget for District Court and is primarily responsible for providing legal representation to court employees.
Court officials, who have two staff attorneys at their disposal, have turned to Kamer when county lawyers — and, in some cases, the Nevada Attorney General’s Office — have declined to represent them in matters involving Family Court marshals.
An attorney for a man charged with plotting the September 11 attacks accused U.S. military guards at the Guantanamo Bay detention facility on Thursday of seizing his client’s private legal documents.
The allegation from Navy Commander Walter Ruiz called into question whether five defendants undergoing a pre-trial hearing in the Guantanamo war crimes tribunal can expect a fair trial on charges of terrorism, hijacking and murdering nearly 3,000 people.
Ruiz represents Saudi defendant Mustafa al Hawsawi, who is accused of wiring money to the September 11 airplane hijackers to fund their 2001 attack on the United States. Ruiz said Guantanamo guards seized documents from Hawsawi’s cell that were marked “attorney-client privilege.”
Under U.S. law, a criminal defendant’s right to representation by counsel includes a right to confidential communications with an attorney and private legal documents.