Attorney-Client Privilege In the News

Challenge to Ex-Sheriff, State’s Attorney Client-Attorney Privilege Defeated

Lawyers for McCann’s mother, Virginia, launched a rare attorney-client privilege challenge in Illinois in July 2013, demanding that the confidential conversations between then-Sheriff Gregory Beitel and then-State’s Attorney Ben Roe be broken in a wrongful death lawsuit that she is pursuing against the county. McCann’s lawyers argued before Magistrate Judge Ian D. Johnston in federal court that McCann’s death was the result of criminal manslaughter because proper medical care was denied to her son by the sheriff.

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Complicating the issue, according to sources familiar with the case, is a complaint from multiple employees against CSB with the Equal Employment Opportunity Commission and the OSC. CSB could face litigation related to those employee complaints and thus is trying to protect those communications with outside counsel on that matter.

Attorney-client privilege is a highly respected concept and protects discussions between a plaintiff and his or her lawyer from being released, designed to allow frank disclosures and legal advice. But the right can be waived if an unauthorized third party is present for the discussions or if communications are given over to a third party, in which case lawyers on the other side could request — and be granted — the same access.

Richard Painter, a former White House associate counsel who consulted with CSB on this issue, said his interpretation was that turning over the communication would waive CSB’s rights.

“There are all kinds of circumstances where you’re required to give up documents, like a subpoena or an investigation like this. And in each of those instances, I’d cite attorney-client privilege,” said Painter, now a professor of corporate law at the University of Minnesota. “Even though the IG is paid by the agency and is technically in the agency, it’s not part of the circle of persons to be consulted for the purpose of obtaining legal advice.”

Guantanamo guards accused of improper document seizures

(Reuters) – 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 pretrial 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.

Appeals court rules against McDonnell on emails

A federal appellate court on Wednesday ruled that e-mails from a government lawyer to Virginia Gov. Bob McDonnell are not protected by attorney-client privilege, a setback for the governor in the federal investigation into his dealings with a businessman and donor.

The Washington Post cited two sources confirming the ruling from the U.S. Court of Appeals for the 4th Circuit, which withheld the names of the government official and lawyer in question, applies to McDonnell and the ongoing probe.

The three-judge panel upheld the district court’s ruling in a per curiam opinion (posted here), saying that McDonnell’s legal team failed to prove that the emails from the government-employed lawyer to the governor was related to legal advice, a necessary requirement for claiming attorney-client privilege.