Pennsylvania Modifies Work-Product Rule

In a recent decision, the Pennsylvania Superior Court clarified the application of the attorney work-product doctrine in the context of an e-mail exchange to a third-party consultant. The decision addresses the question of whether the work-product doctrine in Pennsylvania applies to otherwise confidential communications sent to a public relations company.

In Bousamra v. Excela Health, a hospital retained an outside consultant to manage the results of peer reviewed studies regarding arterial blockages and inappropriately implanted stents.  The hospital was concerned with publicly disclosing the …

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Privilege in Interstate Litigation

Many legal issues are easier to articulate than they are to resolve.  For example, suppose State Y does not recognize a testimonial privilege but a witness is called to testify from State X which does recognize the privilege. Can the witness who holds the privilege claim it during litigation pending in State Y? Due to differing legal constructs applied by state courts, it can be an onerous task for counsel to determine whether certain documents or communications are considered privileged or are discoverable in interstate …

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A-C Privilege Not Extended to Third Parties

It’s generally known that communications between attorney and client are privileged absent waiver. Often, the client may waive the privilege by sharing an otherwise confidential communication with a third-party. But what if the third-party was engaged by counsel? Parties to a transaction rely on multiple outside professionals to advise on legal and business matters.  In such cases, otherwise confidential communications are sometimes shared by counsel with third-party consultants hired to assist with the matter.  However, the mere fact that a third-party consultant was engaged to …

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Does the A-C Privilege Survive a Company’s Death?

When it comes to interesting ethical quandaries, the case of U.S. v. Martin Shkreli is the gift that keeps on giving. As we discussed in a previous post, Martin Shkreli has asserted the “advice-of-counsel” defense in the securities fraud case he is facing in the Eastern District of New York. Since our last post, Shkreli has served a document subpoena on one of the law firms that represented several of his companies, as well as him personally. What complicates this matter, however, is the fact …

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Is General Advice from an Attorney Privileged?

Attorneys consistently provide guidance to clients, but not all of the consultation may be considered legal advice. Often an attorney’s role extends beyond the boundaries of legal advice and into other topics such as general business advice. When this occurs, the definition of what constitutes “legal advice” can become blurred, which has implications on privilege. In the recently released decision in Harrington v. Freedom of Information Commission, et al., the Connecticut Supreme Court examined this issue in detail.  According to the court, the case …

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Who Is Really the Client?

The attorney-client privilege is one of the most basic tenants of professional liability.  While the general rule itself is uncomplicated, complex circumstances between attorneys and their clients can often trip up even the most experienced lawyer.  Take for example the following New Jersey malpractice case involving a law firm’s general counsel which raises the question: who is really the client?

The malpractice suit stemmed from advice given by an attorney at Law Firm.  The plaintiff/client consulted the attorney about instituting a “rolling furlough” as an …

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Duties of the Unintended Email Recipient

Model Rule of Professional Conduct 1.6(c) provides that “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure” of client information. Generally that isn’t too difficult but things get complicated when it comes to electronic communication. Over 220 billion e-mails are delivered each day. According to reports, e-mail remains the most “pervasive form of communication in the business world.” Given the rampant use of e-mail, eventually there will be mistakes: your e-mail will land in the wrong hands or you will …

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Attorney Uses Confidential Info to Complete Insider Trades

The concern for the public’s trust in the legal profession remains a core goal of attorney ethics committees nationwide. Especially with the ease of accessing confidential information, attorney’s protection of client data has truly come into focus in recent years. This week, the Kentucky Supreme Court will decide whether an attorney will be permitted to continue his career in light of allegations that he used confidential client information to complete insider trades. The Kentucky Board of Professional Conduct recommended that the attorney be suspended for …

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Subpoenas and Ethical Duties to Clients

Subpoenas provide a means to obtain testimony or documents from a non-party. Many lawyers routinely issue subpoenas during the discovery or trial phases of litigation. But lawyers are sometimes on the receiving end of a subpoena. This is when things get a bit tricky.

Generally a lawyer is not authorized to reveal information relating to the representation of a client.  An exception, found in Model Rule 1.6(b)(6), is when a lawyer “reasonably believes necessary to comply with other law or court order.”  Therefore, when a …

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Dual Representation Risks Waiver of AC Privilege

Professionals must communicate clearly with clients regarding the existence and scope of the professional-client relationship.  This is especially true for general counsel, who represent a company but also interact with its employees. We discussed these issues here in the context of the Penn State/Sandusky scandal two years ago but lingering issues remain which highlight the risks of dual representation.

As you undoubtedly know, the Pennsylvania Office of Attorney General began investigating allegations of sexual abuse at Penn State in 2009. The AG convened a statewide …

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