A sharply-divided Washington Supreme Court has ruled that an organization’s attorney-client privilege doesn’t apply to communications between the company’s lawyers and its former employees. Although Newman v. Highland School District No. 23o adheres to a minority viewpoint, the implications are troubling, and the bright-line test that the state supreme court established in a case of first impression will require new cautions in cases where Washington state privilege law applies.
Continue Reading
You can’t spy on opposing counsel by “bugging” their e-mail, ethics opinion says
Alaska may have only about 2,500 active resident lawyers, but its bar ethics committee has become just the second authority in the country to weigh in on the practice of “bugging” the e-mail of opposing counsel. The committee disapproved of this spy method in an opinion issued in late October, saying that it violated the Last Frontier’s version of Model Rule 8.4, which prohibits dishonesty and misrepresentation.
Continue Reading
“No contact” rule didn’t bar interview with represented suspect, district court holds
When the government comes knocking during a grand jury investigation, can a G-man interview one of your executives without getting consent from counsel? Last month, the U.S. District Court for the District of Maine said “Yes,” and refused to suppress an executive’s statements in the tax fraud case against him, holding that the ex parte chat didn’t violate ethics rules. The case shows how in a federal criminal investigation, an exception to the well-known “no-contact” rule can sweep away its protection.
Continue Reading
Five signs that your law department could be headed for a privilege problem
Regulatory compliance, cyber-security issues, herding legal operations staff — in-house legal practice is more complex than ever. One element that remains a continuing challenge is protecting the organization’s attorney-client privilege. Slipping up can risk the loss of the privilege in litigation involving the company, and can potentially result in an order to produce otherwise confidential communications to the other side. What are some signs that your law department needs to tune up its privilege IQ?
Continue Reading
Can you copyright your legal brief? District court says “yes,” and finds infringement
Under deadline pressure to produce a brief? You’ve found one online in a public database that fits your case to a T? If you’ve always thought that you can make free use of another lawyer’s brief, think again. You just might get sued for copyright infringement — successfully. In Newegg Inc. v. Ezra Sutton, P.A., a California U.S. district court made that point earlier this month, when it granted partial summary judgment to plaintiff Newegg on its infringement claim — but Newegg has come in for some criticism for pushing the case.
Continue Reading
ABA amends model ethics rules to prohibit discrimination, harassment
On Tuesday, the ABA House of Delegates amended the Model Rules of Professional Conduct to add a provision barring harassment or discrimination in all conduct related to a lawyer’s practice of law. After months of debate, comment and revision, the revised Resolution 109 passed on a voice vote, without dissenting comment from the floor. The version adopted reflects an amendment introduced last month, which lowered the bar for a finding of misconduct from strict liability to a “knows or should know” standard.
Continue Reading
Firm counsel privilege prevails; New York joins favorable trend in recognizing doctrine
Attorney-client privilege covers ethics advice that lawyers get from their law firm’s general counsel, and the communications do not need to be disclosed to the client, said a unanimous five-judge panel of the New York Appellate Division last week, in a closely-watched case. In Shock v. Shnader Harrison Segal & Lewis LLP, the court ruled that the law firm was the “real client” in getting the advice from the GC, and held that the fiduciary exception didn’t apply.
Continue Reading
Privilege shields internal firm discussions about conflict, N.D. Cal. magistrate rules
Internal discussions among Orrick’s chief legal officer and other firm lawyers about a conflict of interest remain privileged under federal common law, a federal magistrate judge for the Northern District of California has held, in quashing a third-party subpoena directed to the firm — even though the firm still represented the client at the time of the discussions. The opinion is the latest in the line of federal and state cases that have been developing a jurisprudence of law-firm privilege.
Continue Reading
Fired GC fends off dismissal of retaliation claim, can sue individual director, says district court
A fired GC of a public company recently fended off dismissal of his whistle-blower retaliation claims in California district court. Adding to a split in authority, the chief magistrate judge for the Northern District of California held (1) that the protections of the Dodd-Frank Act applied even though the GC made his report internally, and
Disloyal GC’s can be required to disgorge salary, says NJ high court — even if no economic harm
In most houses, Halloween lasts until the kids eat that last candy bar — saving it from their parents’ grasp. So I don’t think it’s too late to spotlight a case that’s bound to scare in-house counsel, in which the New Jersey Supreme Court recently ruled that the remedy of disgorgement can be applied to