The Attorney-Client Privilege and Information Disclosed to an Attorney with the Intention That the Attorney Draft a Document To Be Released to Third Parties: Public Policy Calls for at Least the Strictest Application of the Attorney-Client Privilege

The attorney-client privilege is the oldest evidentiary privilege known to the common law. It exists to encourage clients to openly communicate with their attorneys. Some commentators, however, have questioned the value of the privilege and called for its elimination. This policy debate, though unlikely to influence typical privilege disputes, is important when the application of the attorney-client privilege is unclear. One example is when a client conveys information to her attorney with the intent that the attorney draft a document to be released to a third party. This Note seeks to shed light on the arguments for and against the application of the attorney-client privilege to this scenario, and concludes that public policy calls for a strict application of the privilege

The Attorney-Client Privilege and Information Disclosed to an Attorney with the Intention That the Attorney Draft a Document To Be Released to Third Parties: Public Policy Calls for at Least the Strictest Application of the Attorney-Client Privilege

The attorney-client privilege is the oldest evidentiary privilege known to the common law. It exists to encourage clients to openly communicate with their attorneys. Some commentators, however, have questioned the value of the privilege and called for its elimination. This policy debate, though unlikely to influence typical privilege disputes, is important when the application of the attorney-client privilege is unclear. One example is when a client conveys information to her attorney with the intent that the attorney draft a document to be released to a third party. This Note seeks to shed light on the arguments for and against the application of the attorney-client privilege to this scenario, and concludes that public policy calls for a strict application of the privilege

Attorney-Client Privilege, Ethical Rules, and the Impaired Criminal Defendant, The

Attorneys who represent possibly incompetent defendants charged with criminal conduct face difficult ethical issues, implicating professional duties of loyalty, zealous representation, and confidentiality-as an ethical question and as a matter of the law of evidence. The principles of agency underlying the attorney-client relationship are also implicated when the defendant\u27s capacity is in doubt. In the ordinary criminal case, the client has at least implicitly authorized his lawyer\u27s conduct. But if the defendant is impaired, the client may not have the mental capacity to authorize the attorney\u27s actions. Defense counsel representing the possibly incompetent criminal defendant will often be the only one with relevant information about her client\u27s incapacity. This information, related in confidence, may suggest that the client has difficulty in rationally understanding the charges against him and cannot assist his counsel. Under current rules, limited options are available to the defense attorney. She is required to alert the court to the possibility that her client is incompetent, but the attorney- client privilege, ethical rules, and the criminal defense attorney\u27s role, as presently understood, do not allow the attorney to disclose her client\u27s confidences. This prohibition results in trials or in guilty pleas by defendants who may not be competent to proceed, thus, violating due process. Such an outcome is contrary to the fundamental values of justice in our criminal adversary system. This Article argues that the importance of competence to the proper functioning of the adversary system requires that the criminal defense attorney be permitted to disclose client statements for the purpose of determining incompetence. Part II reviews Medina v. California, in which the Supreme Court suggested that a criminal defense attorney could testify about a client\u27s competency at competency hearings. Part III explores the legal standard of competency, its application to the criminal defendant, and the elusiveness of the concept of rationality. Part IV examines the attorney-client relationship. Part V discusses the attorney- client privilege and the ethical rules relative to competency proceedings. Finally, Part VI argues that an exception to the attorney-client privilege and the ethical rules is warranted in order to permit the criminal defense attorney to disclose client confidences which impact the client\u27s competence and explores the implications of this exception

Should Public Relations Experts Ever Be Privileged Persons?

This Comment addresses the issue of whether, and under what circumstances, a lawyer’s communications with a public relations expert, whose advice is only valuable to the extent that it is communicated fully and freely with the attorney, will be protected by the attorney-client privilege. This Comment focuses on the role of public relations firms in the criminal law context, where constitutional concerns often arise. The author begins by laying out the history and background of the attorney-client privilege, and how the defense lawyer’s role has changed as a result of the rise of mass media. The Comment then goes on to explore the recent case law from the Second Circuit involving public relations firms and their applicability to the attorney-client privilege. From these cases the author synthesizes what she believes are the relevant factors used to decide whether the privilege attaches to public relations firms. Applying these factors the Comment argues that in orderr for our system of adjudication to be fair and just, we must permit attorneys to engage the media through assistance of public relations experts to whom the attorney-client privilege reaches

The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism

This article attempts to accomplish two distinct but related objectives. First, it initiates the proposed systematic study of the Office of the Attorney General by examining its early role. Second, it explores how these early experiences help to answer today\u27s questions. To those ends, part I examines the establishment of the Office of the Attorney General. Studying the genesis of the office and contrasting it to the other significant offices created by the First Congress, such as the Secretaries of Foreign Affairs, War, and Treasury, reveals the priorities and concerns of these early legislators, many of whom had been instrumental in drafting the Constitution. This study reveals that the First Congress approached the question of presidential control with a useful mixture of sensitivity and pragmatism that is insufficiently appreciated today Part II examines the frustrations Edmund Randolph, the first Attorney General, experienced in the office, focusing particularly on his efforts to persuade the courts to enforce Congress\u27s first pension act for disabled veterans of the Revolutionary War. In Hayburn’s Case, a 1792 case well known for its implications for the role of the federal judiciary, Randolph, on behalf of the United States, petitioned the Supreme Court for a writ of mandamus ordering a lower court to administer the Invalid Pensions Act of 1792. But the Court refused to allow the Attorney General to make his motion. Because the Court did not issue a written opinion in the case, it has been difficult to probe its reasoning. However, the unpublished personal notes of Justice Iredell, coupled with contemporaneous newspaper accounts, letters, and other Supreme Court decisions, suggest that the Court\u27s principal concern was whether the President and the Congress had sufficiently authorized the Attorney General to make such a motion. These efforts by Randolph to secure enforcement of the pension law, offering the Supreme Court its first opportunity to consider the respective roles of the President and Congress in controlling the Attorney General, provide us with an excellent, hitherto unexplored, opportunity to examine the early role of the Attorney General.16 Studying this experience reveals that many of the current tensions in our tripartite system of government were evident at its inception. From the beginning, there were questions about whom the Attorney General represented, who should and would control the incumbent Attorney General, and what it means to represent the interests of the United States. In addition, one sees the beginnings of the notably vibrant and enduring debate between those who see the federal courts merely as resolvers of private disputes and those who believe they serve a special function as interpreters and protectors of the Constitution. Finally, part III explores the extent to which these early experiences can contribute to modern debates. As the Article indicates, some of the precise uncertainties and frustrations confronting early Attorneys General already have been resolved. However, many fundamental questions remain: Can Congress order an Attorney General to act without regard to the views of the President? Can Congress place law enforcement responsibilities in the hands of individuals outside presidential control? Can the Attorney General act without clear congressional authorization? The early history cannot answer these questions. Indeed, those who find clear answers in this history are probably distorting the history. But the approach taken by the framers and early interpreters of the Constitution can and should inform our debate

No Good Deed Goes Unpunished: How the New Hampshire Probate Court Has Strengthened the Power of the Attorney General in Charitable Trust Suits

As Americans increasingly use estate planning tools to provide for their favorite charities, the charitable trust is an important instrument that fits uniquely into general trust law. While charitable trusts are similar to private trusts to a great extent, there are also some critical differences between the two vehicles, especially regarding their enforcement. Specifically, state attorneys general play a special role in the enforcement of charitable trusts. This Note examines this special role of the state attorney general—namely, how trustees interact with the attorney general, arguments for why the role of the attorney general needs to be reformed or eliminated, and arguments in support of letting the attorney general maintain his or her power in these charitable trust cases. After considering the historical background on charitable trusts, this Note analyzes a recent New Hampshire case, In re Nashua Center for the Arts, as an example of how the New Hampshire Probate Court affirmed the power of the state Attorney General in this charitable trust setting. In that case, several groups of concerned citizens tried to intervene when the trust for Nashua Center for the Arts, part of the Edith Carter estate, announced it would relocate its funds to the Currier Museum of Art in Manchester, New Hampshire. The court denied their motions to intervene because only the state Attorney General has the power to represent them—the parties did not have standing to intervene on their own. The Note then explores other New Hampshire cases, Massachusetts cases, and legal disputes in other states to provide additional perspectives. This Note concludes that while the court’s decision in In re Nashua Center for the Arts initially seems like a harsh injustice for the nonprofits in Nashua that felt entitled to make use of the funds from Edith Carter’s estate, the court correctly applied the existing law. The outcome of the case should remind nonprofits and citizens in New Hampshire that, while the state has held itself out as one of the most progressive states for trust law, the significant powers held by the state Attorney General will not be limited any time soon

Power of Attorney Handbook, June 2006, revised

This booklet is designed to assist those who have been appointed as an attorney-in-fact, those who are considering the need for a power of attorney, or those who have an interest in the subject. This is a general overview of the laws governing powers of attorney and, like most general overviews it will apply in most situations, but not all. Small differences and individual circumstances can be very important in resolving legal problems and the general guidance provided by this booklet cannot take such differences into account. Keep in mind that the laws continually change and information in this booklet is not designed to take the place of legal counsel

Giving Meaning to “Meaningful Enough”: Why Trevino Requires New Counsel on Appeal

Generally, defendants cannot raise new claims in a writ of habeas corpus unless they can accomplish the difficult task of showing that they could not have raised the claims earlier. In 2012, the U.S. Supreme Court laid out an equitable exception that allows defendants to claim—for the first time in a writ of habeas corpus—that they had an ineffective trial attorney if their failure to make a timely claim was due to a second ineffective attorney or no attorney whatsoever. The exception, however, only applied to defendants in states that required ineffective assistance claims to be brought in collateral proceedings, as opposed to allowing the claims on direct appeal. However, a year later, when faced with inequity in Texas, the Court broadened the exception, applying it to any state that does not provide a defendant with a meaningful opportunity to initially raise that claim, regardless of the forum they chose. In doing so, the Court neglected to explain how “a meaningful opportunity” should be measured. This Note seeks to provide that explanation, arguing that it must depend on whether a defendant is provided with a new, unconflicted attorney on appeal. If the same attorney represents a defendant at trial and on appeal, a defendant cannot meaningfully challenge his lawyer’s performance at trial. If a defendant does not receive new counsel on appeal, habeas courts should consider claims of ineffective assistance regardless of the procedural history of the case

Misassigning Income: The Supreme Court and Attorneys\u27 Fees

This past term\u27s Supreme Court decision in Commissioner v. Banks and Commissioner v. Banaitis distorts foundational principles, known as assignment of income law, which help identify the person who must report income for federal tax purposes. The Court holds that assignment of income principles require a plaintiff to report as income the portion of a recovery paid to the plaintiffs attorney as a contingent fee. As a result, the plaintiff is taxed at excessively high rates, which may in some cases equal or exceed a confiscatory 100%. Taxing the plaintiff on the attorney-fee portion of a recovery also undermines the objective of federal fee-shifting statutes, which is to enable a prevailing plaintiff to act as a private attorney general by employing an attorney without cost. Although recent legislation changes the result in the future for specified categories of litigation, including a wide variety of civil rights and employment claims, there remain significant classes of cases, including nonphysical torts, physical torts with punitive damages, and environmental statutes with fee-shifting provisions, to which this recent legislation does not apply and in which plaintiffs will continue to be taxed unfairly under the Court\u27s decision

Understanding Duties and Conflicts of Interest--A Guide for the Honorable Agent

This article examines the importance of understanding agent duties and conflicts of interest, both for drafting a power of attorney that meets a principal’s objectives and for providing guidance to the agent who will act under its authority. Professor Whitton suggests that current custom and practice with respect to powers of attorney often overlooks the need to adjust agent duties to accommodate the principal’s expectations, thus resulting in inadvertent conflicts between the duty to do what the principal expects and default duties of loyalty. The article offers practical guidelines for identifying and reconciling these conflicts, as well as best practices to improve the agent’s understanding of the authority granted in the power of attorney, the principal’s expectations for exercise of that authority, and the duties an agent must meet when carrying out the principal’s expectations