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Attorney E-Newsletter

December 2009

U.S. Supreme Court Denies Privilege Appeal

The first opinion authored by the newest Justice of the United States Supreme Court, Sonia Sotomayor, addressed a question of legal ethics. In the case of Mohawk Industries, Inc. v. Carpenter, No. 08-678, Justice Sotomayor, writing on behalf of a unanimous court, ruled that a decision of a District Court to compel production of information to which a party had asserted attorney-client privilege was not subject to an interlocutory appeal. The 11th Circuit opinion was published at 531F.3rd 1048 (11th Circ., 2008).

The matter was an unlawful termination suit. Prior to termination, the company had required the employee to meet with its retained counsel. The employee sought discovery of information related to this meeting, and the company asserted attorney-client privilege. The District Court determined that the information was privileged, but held that the company had waived its privilege in related litigation, and granted the employee’s motion to compel discovery. The District Court declined the company’s request to certify the order for appeal. On appeal, the Court of Appeals examined whether the order was appealable under the three-part test of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). It found that the order met the first two prongs of the test. It conclusively determines the disputed question and it resolves an important issue completely separate from the merits of the action. However, it did not satisfy the third test, that it be “effectively unreviewable on appeal from a final judgment.”

Justice Sotomayor recognized that the attorney-client privilege is fundamental, but found that recognizing an exception to the general rule that issues are not appealable except as part of a final judgment that would not serve the purposes of the privilege. She noted,

One reason for the lack of a discernible chill is that, in deciding how freely to speak, clients and counsel are unlikely to focus on the remote prospect of an erroneous disclosure order, let alone on the timing of a possible appeal. Whether or not immediate collateral order appeals are available, clients and counsel must account for the possibility that they will later be required by law to disclose their communications for a variety of reasons—for example, because they misjudged the scope of the privilege, because they waived the privilege, or because their communications fell within the privilege’s crime-fraud exception.

She also noted the range of options available to parties determined to protect the privilege in pre-judgment proceedings.[1]

All nine justices concurred in the judgment. Justice Thomas concurred in the judgment and wrote a concurring opinion.[2] The decision resolves a conflict in decisions between the circuits, as three circuits – the Third, the Ninth, and the D.C. Circuit – have allowed interlocutory appeals.

U.S. Supreme Court Considering Cases Related to Practice

Several other cases relating to practice issues remain pending before the Supreme Court:

  • Perdue v. Kenny A., No. 08-970, concerns whether a reasonable attorney's fee award under a federal fee-shifting statute can ever be enhanced based solely on quality of performance and results obtained when these factors are included in the lodestar calculation already. The decision is 532 F.3d 1209 (11th Cir., 2008). The case was argued October 14, 2009.
  • Padilla v. Kentucky, No. 08-651, presents questions of whether an attorney’s inaccurate advice as to the deportation consequences of a client’s guilty plea provide a ground for setting aside the plea. The decision is 253 S.W.3d 482 (Ky., 2008). The case was argued October 13, 2009.
  • Milavetz, Gallop, & Milavetz PA v. United States, No. 08-1119 and 08-1225, raise issues as to whether Section 526(a)(4) of Title 11 of the United States Code, the Bankruptcy Abuse and Consumer Protection Act of 2005, (which provides that bankruptcy professionals who qualify as "debt relief agencies" and who are hired by consumer debtors for bankruptcy services may not advise those debtors to incur more debt in contemplation of filing a bankruptcy petition,) violates the First and Fifth Amendments to the United States Constitution, as well as other issues as to applicability and conflict with statutes. The decision is 531 F.3rd 785 (8th Cir., 2008). The case was argued December 1, 2009.

Who Owns the Email? Employers Attack Attorney-Client Privilege

At least two recent cases have raised an intriguing question: does attorney-client privilege protect the content of emails an employee sends to his or her attorney, using computers and even email accounts owned by the employer?

The general principle is that employees have no expectation of privacy or confidentiality in emails sent using computers and email accounts owned by the employer. At least two recent decisions have upheld the privilege in such circumstances, though.

In Stengart v. Loving Care Agency, Inc., 408 N.J.Super. 54, 973 A.2d 390 (2009), an appellate court in New Jersey held that an employer’s counsel acted unprofessionally in reading and refusing to release emails which the plaintiff, who was suing the employer for discrimination, had sent from her work computer. At least some of the emails were sent to or from the employee’s personal Yahoo account. The court noted that the employer has an interest in knowing whether its employee is using company resources for personal business, but does not have an interest in the content of that personal use. The court also found that the company’s attorney violated New Jersey Rule of Professional Conduct 4.4(b), which requires attorneys not to read documents that appear to have been inadvertently disclosed and to return such documents to whomever sent them. [3]

On December 10, 2009, the U.S. District Court for the District of Columbia ruled that Assistant U.S. Attorney Jonathan Tukel had a reasonable expectation of privacy in emails he sent to his private attorney over government computers. The court found that federal prosecutors were allowed to use work email for personal matters, and therefore Tukel's messages to his private lawyer sent from work are covered by the attorney-client privilege. The party seeking the emails is not the employer, but former federal prosecutor Richard Convertino, who lost his job after his convictions in a high-profile terrorism trial in Detroit were overturned in 2004 due to prosecutorial misconduct. Convertino is seeking Tukel’s emails to his counsel, believing they will shed light on the process that led to his firing. The law.com story is here.

In a related matter, the United States Supreme Court has granted certiorari in a case which raises similar issues. City of Ontario v. Quon, No. 08-1332, involves police officers who sent large volumes of personal text messages of department-issued pagers. Despite the existence of a business-use only policy, they relied on assurances of a supervisor that he would not monitor their use if they paid for overage charges. Subsequently the city obtained transcripts of their personal text messages, and the officers sued. The District Court granted summary judgment for the city, but the Ninth Circuit reversed and held that the officers and their correspondents[4] had a reasonable expectation of privacy. The case doesn’t involve attorney-client privilege, but it could have important implications for such communications. The Supreme Court granted the city’s petition for certiorari on December 14, 2009. The decision is reported at 529 F.3d 892 (9th Cir. 2008).

Although employees have won the last few rounds in the battle over access to personal communications on work accounts, there are cases that have gone the other way. These situations seem highly fact-sensitive, depending on the employer’s policies and practices.

FAQ: Why No Email Addresses?

Q: Why don’t you show email addresses in the “look up an attorney” listings at www.padb.us?

A: The publication of email addresses has been controversial. Many attorneys have objected to the listing of email addresses on a public database, fearing they will be deluged with unwelcome emails from individuals or that their email addresses will be picked up by spam generators. Pennsylvania attorneys are not required by Rule 219(d) of the Pennsylvania Rules of Disciplinary Enforcement to provide fax or email addresses. The Attorney Annual Fee Form requests these on a voluntary basis. This information is not posted on the public website, however, as doing so would be a disincentive for attorneys to voluntarily provide the information.

Lawyers Accident-Prone?

The legal profession finally ranked high on a survey. The Journal-News of the Lower Hudson Valley reports that lawyers are the second most likely profession to be involved in auto accidents, following only doctors.[5] Architects come third. Farmers, firefighters, and pilots[6] are least likely to crash. One expert interviewed believes that fatigue is a factor, due to the long hours doctors and lawyers put in.[7]

None of the professions, however, can hold a candle to students[8], who have a 50% higher crash rate and nearly double the speeding tickets of doctors or lawyers.

So during this holiday season, slow down, get some sleep, and be careful. We hope to see all 43,459[9] of you make it safely into 2010.

Got a Tip?

Or a question, a comment, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.

[1] As a number of commentators have noted, Sotomayor also made the Supreme Court’s first reference to “undocumented” as opposed to “illegal” immigrants.

[2] Which was described by the New York Timesas “testy.”

[3] Evidently he came up short in the Loving Care department.

[4] We choose this term advisedly. The findings of fact indicate that one of the officers sent numerous messages “of a sexual nature” to both his wife and mistress. He’s a SWAT guy, he’s used to living dangerously.

[5] Golf pros were not included in the survey.

[6] When driving, we presume.

[7] Does he think farmers don’t work long hours? Maybe driving those tractors at 10 mph on the road brings the numbers down.

[8] Who often burn their candles at both ends.

[9] Yes, that’s the number of subscribers we have for the e-newsletter!