January 18

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Contents

Logistics | Exam

  • corporate and individual track for tomorrow
    • for the digital part, finish the Alcock transcript. Focus on the role that DNA could and should have played in the trial, and on the role that DNA could and should play in the parole.
    • Z's class hasn't read the transcript, so it would be useful if this class could brief his class on the issues. Our groups will meet together to discuss and generate a discussion at 11 that will be webcast that will involve our Jamaican guests
  • The Thursday night event is in Ames, and Nesson emphasizes that he would very much like an audience
  • This is a thin operation in terms of administrative structure
  • Exam anxiety. We're still learning, and how are we supposed to be doing this? Nesson would love for us to forget about studying for the exam. He wants the learning experience to be what's happening here, not some concentrated thing that's happening at the end. he's trying to craft something that will make us address something in the scope and nature of what we've been addressing, in the manner of what we've been addressing. Forget about the rules. He is not giving us a multiple choice exam. Whatever we're doing, we're starting from the other end. the best thing we could do the night before the exam would be to get a good night's sleep, having seen a good movie.
    • In N's class at HLS, there were 6 women. The prof would never call on them in Property, since their voices weren't strong enough. He would have ladies day, wherein he would invite the ladies to the podium, where they would sit in front of the class, and the prof would interrogate them from the audience. None of the students thought that was weird. Some of the ladies would wear distracting clothing during exams.
    • N was first in his class all three years. But then he became a prof, and now the process looks pretty corrupt. The idea that issue spotters are testing his capacity to be a lawyer is absurd. On the other hand, the kinds of exams that make sense to him are ones where he's challenged to see the story line.
    • A big fear in the feedback memos was missing the objections in the moment because of not knowing the rules. But the way you see the objections is by coming a total student of the other side's story line that's going to hurt you, and of your story line that's going to help you. So when something comes up that's going to hurt you, you will know it.
    • I teach this course as the power of narrative. That's what lawyers become masters of. I want you to absorb not only how you do it, but how it's done to you. Both how you understand and how you persuade.
    • In the essay, what he's looking for is what he's saying on the wiki. He wants us to engage with something we actually care about.
    • The challenge is in taking something where you have fixed views in a way that makes you recognize the Necker Cube in it. Take control of the distance inbetween the poles of the argument.
    • He does want an actual paper from everyone.
  • We should make the subject of our email's to Nesson's secretary our ID numbers

Privilege

  • like verdict and guilty, it has a meaning that transcends its legal definition. It is actually an expression of the idea that law privileges some classes of people over other classes of people.


In re Farber

  • The basic law on reporters privilege goes back to the 70's
  • Farber was a reporter for the nytimes. He did a series on a doctor who was operating in a hospital in New Jersey, and "Dr. X" killed his competitor doctors patients. This story was "interesting" to the NJ population. The question was, is Dr. X still practicing? Yes. Farber's story led to a prosecution of Jascalevich, who was said to be Dr. X. The defense called Farber and demanded his notes. P had put on evidence from various witnesses who were in the hospital, and the defense claimed that Farber's notes and testimony would be useful in examining those witnesses. Farber claimed journalistic privilege by statute.
  • D atty claimed 6th am right to confront.
  • This was emblematic of a contest between the journalism business and the judiciary. In the wake of Watergate and Deep Throat, there was a spate of investigative reports, where reporters were reporting the crimes blow by blow, who, when challenged, claimed the 1st amendment.
  • Remember the Plame case.
  • Should reporters have a privilege against subpoena of a defense lawyer?
    • For the journalists
      • D's can get the information in other ways, and the potential damage is huge
      • We count on a free press to keep us democratic, and that's not to be trifled with. A limitation on reporters at any point in the system is problematic.
    • For the defense
      • Why should journalists have a privilege?
      • The problem seems to be when the reporting is encouraging more crimes
      • Imagine the case where the D's life depends on it
      • Since there's no procedural DP check, what's to stop either side to pass on information to a reporter to leak something. We want to remove incentives to game the process.
    • In the middle
      • There should be a distinction between a reporter talking about the government and a reporter trailing along for a crime
  • The law: Branzburg v. Hayes. The Court splits 4-4 on the issues we have here, with Powell writing a middle ground opinion that becomes the law

Journalists vs. Priests

  • Instead of Farber talking to a source in the hospital, suppose it's Farber the priest. Does that change anything?
    • You're really just shaping behavior when you decide what's privileged and what's not. Once people realize that the priest's statements will come into court, they won't talk to the priest.
    • Priests shouldn't have it if reporters don't. Why does the priest have the privilege that the rabbi doesn't have? And at what point can you say that my roommates are my confidants, and so we have a priest/confidant relationship? How are you discriminating between the priest as the confessor and the friends in the commune? Somewhere, the idea that everyone is entitled to evidence trumps.
      • Is the privilege really about fostering certain kinds of relationships?
      • Attorney/client privilege doesn't depend on whether someone is a lawyer or not; it's just whether someone is advising you in a certain way
      • Reporters are the only ones who can breech the privilege but still say that it exists. The priest should have it!
      • What do you say to a rape/shield counselor who's claiming privilege
  • P subpoenas the priest. What happens next. What happens?
    • They will refuse, and it goes up through the courts.
    • Does this implicate the priest's right to practice his religion?

Lords and power

  • Think back to sitting around the table with the law lord. And think about how defensive the system is against impeachment of the verdict (acceptable verdicts). Not interested in story lines that will upset the verdict.
  • So we come to privilege, and privilege is power. the law lord is sitting there with the science lord, staring him in the face with Daubert in the middle, and looking at reporters, starting at it in the face, with its power, and the question of rationalizing privilege in terms of some meta-story seems to fade. It seems much more an expression of reality as far as law is concerned. Keeping as much power as it can to itself to gain the evidence it needs to run it's process, but not starting ire fights along the way with enemies that can take it down. So the Court in Branzburg was charting a path with the judiciary that wasn't going to roll over for the reporters. Under the law, Branzburg makes clear that if a state wants to grant privilege, that will be respected to a considerable extent. There may be overrides, but that's the way you have to go.
  • The priest has rhetorical force backing him that will wipe the judge out.
  • So there are a range of issues that are going to arise.
  • We all know that if we're in trouble, we will find someone we trust to talk to about it. It would seem that that's the relationship we should protect, if that's what we're interested in. But that's not what we do; the tag of privilege comes only with the professions that have fought for and attained the privilege.
    • Parents have been called to testify against their children, and vice versa.
    • Spousal privilege has roots in the power of the husband.

Attorney Client Privilege

  • some say that law has become the religion of the United States. Lawyers have higher standing than in any society that any N knows. Privilege expresses our power.
  • Bentham argued that criminal defense lawyers shouldn't have a privilege; simply a means of facilitating guilty people getting off
    • An innocent person can say things to an attorney
  • Why should we have the privilege for the client to tell us that he is guilty as hell and then work our magic to get him off?
    • D counsel's duty is to test P's case and to bring out the best alternative story, and to do that, he needs to get the best information from the client, good and bad. In order to create a verdict that's going to stand the test of time, we need a professional testing the hell out of it. So we create a duty, which we facilitate with a privilege, of allowing the client to talk in secret with a lawyer.
    • But what about the case where there's sufficient evidence to show he's guilty? He actually did it!
      • When that case is over, and people challenge the result, which was based on scanty evidence, and bring in more powerful stories, then our system is imperiled.
    • Depends on whether you believe it's better for a guilty man to go free than an innocent man to go to prison
      • This is a rap on the prosecutor for not doing a better job, which would leave no justification for any of these privileges.
  • OK, but how do you justify the privilege in the context of civil litigation?
    • Now we're not talking about a criminal defendant, a poor, disempowered guy against a state with his life on the line. We're talking about a corporation.
    • If we start with the premise that we want some semblance of truth in the courtroom, we have to look at what the system would be like with no privileges. It would be worse the other way. The details will be obscured, since there is no one to whom they are telling the whole truth.
    • This would preempt the whole rial process, since you would have to come to your lawyer with the case prepared.
      • Why not put the truth to your lawyer?
    • Well then what's the point of having a lawyer
    • Practical argument: We don’t need to make trials any more confusing for juries. Meshing the roles of attorneys and witnesses is not a good plan.
  • In either a criminal or civil case, imagine that you were charged with two different bad acts; the lawyer would need to know that you had done one thing wrong in order to show that you didn't do the other thing wrong. We don’t want the client to be afraid to tell something to the lawyer that would imperil him.
    • Bentham says, if you don’t want to come forward with the truth to your lawyer, then tough luck

Proposed Rule 503

  • was recommended, but swept aside by Congress, since privilege was too contentious and was going to stop these things from being passed.
  • attorney-client privilege is a privilege of the client. Background:
    • Be skeptical; the way the privilege started in England is that first sons inherited the castle, and second sons went into religion or law. These were literally privileged people, not to be called to answer by a court.
    • Then you get revolutions; note what institutions survive, and how they are changed by the process. So the privilege is recast as a thing of the people.
    • But you can still see vestiges of the early fact that it was the lawyer's privilege, and you can see the reality that this recognition by the law that lawyers can talk in secret is the fundamental service that lawyers have to sell; it is the base of the business. So in power terms, lawyer's privilege is rock solid.
    • This explains the privilege in civil cases.
    • When you have accountants come along and start claiming that they're giving legal advice, everyone laughs. 9-0 in the Supreme Court
  • All kinds of people connected to the lawyer also get the privilege
  • Note the exceptions
    • Breach of duty of a client to his lawyer? What is that?
      • The client must pay
      • Respecting the lawyer's reputation. If you start talking dirt about your lawyer in relation to the representation, forget the privilege.
      • Whose privilege was this again?

Blackacre Fraud

  • Privilege for (1) and (2)
  • the privilege is not meant to function as an umbrella for otherwise discoverable evidence. No laundering
  • makes no difference whether the communication is in writing or oral, so there is a privilege
  • no privilege for the deed

Back to 503: Crime or Fraud exception

  • lawyers deal with some really scrungy people. The separation between the client and the lawyer takes the form of the lawyer not being privileged to advance the criminal enterprise.
  • Prichard case. Ballot box stuffing. Comes to the judge in the night and asks for the privilege. The judge says fine, tell me, and Prichard tells him. Should the judge testify?
    • No: the judge said that the conversation was privileged.
    • Yes: Prichard wasn't coming to see the judge to get legal advice. Rather, he was coming to him perhaps to kill the investigation, or perhaps just as a wise friend.
      • His motive leads to denial of the privilege. He's using it to further the crime.

Tania's Tale

  • this is Patti Hurst. Heiress, kidnapped, missing for almost a year, then shows up in a photo of a bank robbery.
  • She took the stand to talk about the kidnapping but didn't say anything about the bank robbery. She was cross examined on the bank robbery, and took the 5th. The judge said that she had waived it, and she replied that she hadn't said it on direct, so it was out of the scope. The judge makes her testify, but she keeps taking the 5th. This is a jury disaster. She sues the lawyer for malpractice.
  • The lawyer counterclaims for his $250,000 still due on his fee. He testifies about communications between them. The issue in the robbery is whether she's under duress; had she joined them during that year of being kidnapped? Her atty has damaging statements. But the fact is that she, by suing him, waives the privilege, and her atty is in a position of being able to say to her, if you want to prosecute this suit against me, I'm going to take the stand, and I will say what you have said.
    • She has broken the duty to the lawyer. This would be the case even if she had paid.

Pape and Fisher Generally

  • There are sometimes cases where a client wants to testify and doesn't want their identity disclosed. So questions come up as to whether the identity of the client is privileged.
    • A drug bust where two small time boat drivers are being prosecuted. Come the trial, a big shot defense attorney is there representing them. Should the P be able to learn who hired the lawyer? No. The client's name is not subject to protection. Not a communication.
  • On the other hand, sometimes the client wants to stay anonymous because he's in danger. The law bends to protect him. (kind of like witness protection)
  • Ok, so what do we do with a hit and run? A lawyer comes forward to say that he represents the driver. He will turn him in if P will negotiate a plea. P balks and serves a subpoena. Would you respect the privilege in that situation
  • Ask yourself if you're the law lord: do we want to establish this pattern of representation as a line of work for lawyers? Do we want lawyers to be able to sell this kind of secrecy?
    • Yes: dispute resolution, avoiding the cost of a trial, finding out who did it.
      • This is better than not catching the guy at all
      • What's the matter of using identity as an instrument in that negotiation?
    • No: what is P left to negotiate with in the plea? Will corrupt the judicial process.
      • The lawyer is negotiating D's continued evasion of the law
  • Nesson is not in favor of this, since it puts lawyers on the front line with criminals. If P doesn't accept the deal, then the lawyer knows who the guy is and unwilling to tell, and the world knows that the lawyer knows. That's a very awkward position to put the bar in. so from the point of view of the law lord that worries about how the profession develops, this wouldn’t be a good idea.
  • But what about the case when someone comes to you and says, that other man is innocent because I did the crime?
    • The point is that lawyer shouldn't be known to have the information about who really did the crime. So the lawyer has an ethical dilemma of sitting by and watching an innocent man get convicted, but that's different than the acceptable law system issue.
  • This seems to apply any time the atty asserts privilege. Why is it unique to identity?
  • When Ellsberg released the Pentagon Papers to the New York Times, it stayed underground for three months until they published it. that day, the attorney general went looking for Ellsberg, who went underground, represented by Nesson and Boudine. During that period, he passed papers out to the major newspapers of the country. In the meantime, the FBI is actively looking for him. N and B were known to be representing him, so the FBI was everywhere. N and B used the Harvard tunnels and bicycles, would ride bikes the wrong way down one way streets, serious evasion. Unclear whether they would have been able to assert privilege if they had been subpoenaed.

Fisher

  • Fisher deals with a recurring problem. You have an incriminating document. What can the govt do?
    • If the books are in the accountant's hands, and the govt subpoenas, they accountant must produce.
    • If those books are in the lawyer's hands, the lawyer must also produce.
    • If the books are in the client's hands, he still has a shred of 5th am privilege not to produce.
      • This has nothing to do with the incriminating nature of the documents. If the state were to find the books, there would be no claim. The production of the books by the client is also a representation that the books are what was requested in the subpoena, and that is a testimonial statement.
      • But P can respond by giving immunity with respect to that communication. Use immunity to the act of production. (P can't say that D produced, but can use the books)
  • Fisher can't assert his client's 5th am privilege. But the court allows him to return the docs to the client, who can then assert his own rights.
  • The best way for a client to keep it away from the govt is to destroy it or to hide it.
    • Use immunity only works for the govt if it knows where the documents are. Will not work for the govt if it does an improper search.

Smoking Gun

  • "just shot V" is privileged, though not the passing of the gun
  • in the good old days, it wasn't unusual for the layer to take the gun and put it in a drawer.
  • A more interesting situation: the lawyer says he doesn't talk without a retainer. Client says, give me back the gun and i'll go get the money. Should the lawyer take the gun? Refuse to give it back? Should he give it back? Is he aiding a crime by keeping the gun while asking fro $5000? Does the lawyer have to ask where the guy got the money?
  • Both the location of the gun and the corpse are privileged

Ethics

  • Ethics is the zone between what you know to be true and what can be proved against you. That is the zone in which you are queen or king. How you act in that zone is up to you.
  • Ethical rules, codes of professional responsibility, are statements by the bar association to the public as well as to lawyers about how lawyers are supposed to act. Do they describe how lawyers actually do act? You can't tell; if you could prove that the lawyer did it, then you're really out of the zone of ethics.
  • This is the subject that brings us closest to our own relationship to the law.

∑ Rules to remember:

    • It's very important that if you do something unethical, don’t condemn yourself for it as being ever thereafter an unethical person. The person who crosses the line shouldn't then justify staying over the line.
    • Protect yourself. Don’t put yourself in your client's hands. Don’t be in a position where you can wind up with the client being able to demonstrate that you have acted unethically.

Clark v. State

  • the state calls a telephone operator who testifies that she listened in on a call between a client and a lawyer. Admitted murder.
  • If you just go by the letter of 503, there's a good argument for the privilege.
  • But the statement is out in the open
    • The point of the privilege is to protect confidentiality between attorney and client, not to protect information
    • If the court privileges this, then the court is going to create a subset of information that eliminates the crucial thing. just as in the 4th amendment, which is a constant underminer of the credibility of verdicts, because it creates a set of information that is richer than the set on which the verdict is based.
    • The court would be creating secrecy where there is none
  • The lawyer was saying to get rid of the weapon; why do we punish the client?
  • What happens when you're talking to your lawyer and you're in a room where someone is listening at the door and they overhear the conversation. Can they testify?
    • The law has developed from a position of saying that it is your responsibility to keep your secrets ‡ a position where if the client reasonably thinks that there is confidentiality, then it can be protected.
    • The privilege is one of the most difficult problems with respect to digital discovery

Hitch v. Arizona

  • Hitch: interesting problem. Bad guy murdered in his house. His wife and daughters were there. Police search and don’t find the murder weapon. Shortly thereafter, one of the women comes to a lawyer and delivers the gun. The lawyer gets two other lawyers and the three of them together walk into P's office with the weapon in a shoebox, each of them with a hand on the box. They place it on the desk and say nothing. P picks up the gun and says, what's this? They walk out.
  • When the cacse actually happened, it was privileged
  • Hitch says no. As a lawyer investigating a case you may come across evidence useful to P. oftentimes, that evidence, although an object, takes its meaning from its context. The lawyers have destroyed that evidence (the connection between the object and its context).
  • Rule: if you move an object so as to destroy its evidentiary value, you lose your privilege with respect to that act. The lawyer has a choice either to leave it in place, or turn it in and describe what happened.

Upjohn

  • early 80s case that establishes a new form of privilege.
  • Backstory: during Watergate, there unfolded concerns about payoffs to govt officials. One of the questions on the table was, if you're doing business internationally, and the way of getting things done in that other country is by bribery, is there anything wrong with that? The IRS and the SEC were interested. The question came up of how you deal with bad acts in the past. The SEC said, if you disclose, we'll give you a pass. So that's what Upjohn did. But the IRS said, you've been taking deductions for this stuff. Those are improper. Upjohn says, here's what we owe you. The IRS wanted to see the actual report. Upjohn claims privilege.
  • Remember Hickman and Taylor. Accident where P didn't get around to it a year later. The Tugboat company had taken witness statements, for which it later claimed work product privilege. That is seen as being less than atty client, but something.
  • So is the Upjohn investigation going to be protected? Yes, total protection.
  • If you think of corporations as doing war, then remember that secure communication with the front is actually essential to success. What Upjohn does it says to CEOs, you can have your lawyer do investigations within your environment connecting you at the top with the people at the front, and do it under atty client privilege.
    • This is a service that lawyers can provide to corporations.
    • Recognize also that from the POV of the lawyer, this is problematic, because corporate authority changes over time.
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