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

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

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

Las Vegas Metropolitan Police Department v. The Center for Investigative Reporting, Inc., a California Nonprofit Organization, 136 Nev. Adv. Opn. No. 15 (2020)

Pursuant to NRS 239.010, the Nevada Public Records Act (NPRA), governmental entities are required to make available to the public, nonconfidential public records that the governmental entity has in its legal custody or control. If a governmental entity denies a request for public records, the person requesting such records may seek a court order to compel production. NRS 239.011(1). If the party requesting such records prevails, that party is entitled to receive attorney fees and costs. NRS 239.011(2). This case asks whether the requesting party is entitled to receive attorney fees and costs when the parties reach an agreement that gives the requesting party access to the requested records before the court enters a judgment on the merits of the case. In response to this question, the Court adopts the catalyst theory, which provides that, “attorney fees may be awarded even when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation.” Accordingly, the Court affirms the district court’s decision that the Respondent, The Center for Investigative Reporting, Inc., is entitled to receive attorney fees and costs in a reasonable amount, pursuant to the NPRA under NRS 239.011(2)

See No Fiduciary, Hear No Fiduciary: A Lawyer’s Knowledge Within Aiding and Abetting Fiduciary Breach Claims

Fiduciary liability for attorney conduct generally extends only to direct clients of legal services. Over the last few decades, however, the lawyer’s role has expanded. Following this trend, fiduciary liability also has expanded to allow third-party claims in certain limited circumstances. One example is the attorney aiding and abetting a client’s fiduciary breach claim. One of the key requirements for liability under this claim is the attorney’s knowledge of his client’s fiduciary relationship with the third party alleging the breach. Within those jurisdictions that have accepted the claim, there are two approaches to the knowledge element. The first is the constructive knowledge standard that permits liability if the attorney knew or reasonably should have known of the fiduciary relationship. The second approach is the actual knowledge standard that requires overt and obvious evidence of fiduciary knowledge. In addition to these standards, a third approach ignores the knowledge element entirely: the qualified immunity standard that protects attorneys against third-party liability as long as the conduct falls within an attorney-client relationship. This Note argues for the rejection of constructive knowledge and adoption of either the qualified immunity or actual knowledge standard for numerous doctrinal and policy reasons while maintaining the claim’s original policy goals

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

Legal fee restrictions, moral hazard, and attorney profits

When attorney effort is unobservable and certain other simplifying assumptions (such as risk neutrality) hold, it is efficient for an attorney to purchase the rights to a client's legal claim. However, the American Bar Association Model Rules of Professional Conduct prohibit this arrangement. We show that this ethical restriction, which is formally equivalent to requiring a minimum fixed fee of zero, can create economic rents for attorneys, even though they continue to compete along the contingent-fee dimension. The contingent fee is not bid down to the zero-profit level, because such a fee does not induce sufficient attorney effort. We thereby provide a political economy explanation for these restrictions.