Alextronic Discovery
Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM

Thursday, March 11, 2004

The Attorney-Client Privilege - Is it Airtight?  

The Attorney-Client Privilege - Is it Airtight?

Law students doing their Summer internships as well as young associates are trained to do two things well: minimize the Ms. Pac-Man screen when the Senior Partner pops into the office and claim that anything between a client and counsel that may be part of a discovery population is privileged.

As with every rule, there are exceptions. In certain types of litigation, the exception may become the rule.

Take attorney malpractice matters for instance. Not that I can speak from experience on this topic (thankfully) but imagine what disadvantage the client would find herself in if the attorney was able to simply exclude the damning documents and communications evidencing her malfeasance simply by playing the attorney-client (hereinafter "A/C" privilege card). Not surprisingly, nearly all states have refused to allow the exclusion of evidence based on A/C in attorney malpractice suits. California embodies this A/C exception in Section 958 of its Evidence Code.

"There is not AC Privilege ... as to a communication relevant to an issue of breach by the lawyer or the client, of a duty arising out of the lawyer-client relationship."

A large law firm, tried to argue that key incriminating communications should be excluded due to A/C as they struggled to defend a large attorney malpractice claim. With full knowledge of the language and intent behind Section 958, the firm relentlessly claimed A/C. The result? Get this, a whopping 27.7 million dollar sanction for abusing the claim of privilege where it clearly is inapplicable by operation of law. That's right, twenty-seven million buckaroos... enough cheeseburgers to circle the earth forty-six times... the GDP of Benin. As my mentor, Rob Lekowski, would undoubtedly comment... Whoooooa Nelly!

Does this exception to the rule complicate ED processing? Well, what new evidentiary issue does NOT tend to throw a wrench into the ED process?

Be cautioned, don't rely on standard pre-processing query filters to automatically exclude data such as e-mail messages where the attorneys name and a client's name appear in either the to or from Outlook fields. Although this is often an ingenious strategy when it comes to legitimate A/C privilege retention, it will work against involved in a dispute in which the attorney-client relationship itself is in dispute.

Sometimes thing that appear so certain and time-tested such as the trusty old A/C privilege can be turned on their heads. The sun may not always rise in the East.

posted by Alexander | 1:38 AM


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