Think Twice About Posting Your Story Too Soon

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Think Twice About Posting Your Story Too Soon

Postby schmieg » Sat Jun 08, 2013 12:06 am

I just posted this on the main page due to changes in the way Attorney Client Privilege is dealt with in Ohio. Anyone who wants to talk about their case (something we discourage) should read this first:

http://ohioccw.org/201306085085/attorney-client-privilege.html
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Re: Think Twice About Posting Your Story Too Soon

Postby BB62 » Sat Jun 08, 2013 5:57 am

So, is the story/law telling us that if one says ANYTHING to anyone outside of speaking with one's attorney, the attorney can be put on the stand?

If so, my question is "How much/how deeply can the client's attorney be questioned about what their client may have told to a third party?"

IOW, what is the "substance of attorney-client communications"? What you told the attorney, or what he told you?

If one relates how an event unfolded, generally, in an internet posting, but specifically to one's attorney, is one's attorney at risk for testifying?
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Re: Think Twice About Posting Your Story Too Soon

Postby BobK » Sat Jun 08, 2013 6:49 am

The Akron News article you linked on the main page was pretty interesting.

Under the old law, if a person made any statements at deposition, then the attorney could be compelled to testify! :shock: That is pretty shocking, and was also apparently pretty obscure.

Under the new law, the scope of attorney testimony is also an interesting question. For example, assume I discuss issues A, B, C, and D related to my case with my attorney. I mention to my friend, "My attorney told me not to worry about issue D." Pretty clear my attorney can now be compelled to testify about issue D. But is the scope limited to that question? What about issues A-C?

The whole question of attorney-client privilege is interesting to me because I am involved with a fair amount of civil litigation at work. There, I have investigators, adjusters, insurance companies, internal counsel, external counsel, sometimes dozens of people involved in one of my cases. Sometimes it seems like half of my emails get tagged with the old "This e-mail and all attachments to it are for the intended recipient(s) only. It contains privileged information regarding an investigation taken at the direction of legal counsel.".
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Re: Think Twice About Posting Your Story Too Soon

Postby sodbuster95 » Sat Jun 08, 2013 7:36 am

BobK wrote:Sometimes it seems like half of my emails get tagged with the old "This e-mail and all attachments to it are for the intended recipient(s) only. It contains privileged information regarding an investigation taken at the direction of legal counsel.".

Then toss in the I.R.S. mandatory disclosure and those certainly get fun on long email chains. I've seen emails that (printed out) were dozens of pages long but the actual content was a tiny fraction of the length. One person hits "reply" with a simple "OK" and several more paragraphs of legal boilerplate get added. :roll:
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Re: Think Twice About Posting Your Story Too Soon

Postby schmieg » Sat Jun 08, 2013 8:44 am

BB62 wrote:So, is the story/law telling us that if one says ANYTHING to anyone outside of speaking with one's attorney, the attorney can be put on the stand?

If so, my question is "How much/how deeply can the client's attorney be questioned about what their client may have told to a third party?"

IOW, what is the "substance of attorney-client communications"? What you told the attorney, or what he told you?

If one relates how an event unfolded, generally, in an internet posting, but specifically to one's attorney, is one's attorney at risk for testifying?

If privilege is destroyed, then pretty much anything the client said is fair game on questioning for the attorney. In most cases, what the attorney said is not that relevant unless someone is trying to show a motive for the client's actions, but such a desire would more likely be on cross examination as the client tries to implicate the attorney in wrong-doing, sometimes as payback to the attorney for accepting a client who is a loser and destroyed privilege in the first place.
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Re: Think Twice About Posting Your Story Too Soon

Postby schmieg » Sat Jun 08, 2013 8:47 am

BobK wrote:The Akron News article you linked on the main page was pretty interesting.

Under the old law, if a person made any statements at deposition, then the attorney could be compelled to testify! :shock: That is pretty shocking, and was also apparently pretty obscure.

Under the new law, the scope of attorney testimony is also an interesting question. For example, assume I discuss issues A, B, C, and D related to my case with my attorney. I mention to my friend, "My attorney told me not to worry about issue D." Pretty clear my attorney can now be compelled to testify about issue D. But is the scope limited to that question? What about issues A-C?

The whole question of attorney-client privilege is interesting to me because I am involved with a fair amount of civil litigation at work. There, I have investigators, adjusters, insurance companies, internal counsel, external counsel, sometimes dozens of people involved in one of my cases. Sometimes it seems like half of my emails get tagged with the old "This e-mail and all attachments to it are for the intended recipient(s) only. It contains privileged information regarding an investigation taken at the direction of legal counsel.".

I would argue that if that is all you say, privilege is not destroyed as you did not discuss details. A general statement that you met with your attorney and he said you don't have to worry does not really get to the substance of what was discussed.

Of course, you can bet the attorney on the other side will have a different view.

BTW, before I retired, all of my faxes and most of my emails had similar disclaimers.
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Re: Think Twice About Posting Your Story Too Soon

Postby BobK » Sat Jun 08, 2013 9:25 am

schmieg wrote:BTW, before I retired, all of my faxes and most of my emails had similar disclaimers.

The sad part is that is only an excerpt of the full disclaimer attached to my emails. :lol: :lol: :lol:
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Re: Think Twice About Posting Your Story Too Soon

Postby Bombarde32 » Sat Jun 08, 2013 10:37 am

I don't know if this is relevant or not, but I from time to time consult for attorneys as an expert. Several have told me that anything spoken (e.g., phone call) is covered by attorney/client privilege, but any emails and attachments are discoverable evidence. My takeaway has been to restrict sensitive matters to telephone only. (That way, only the NSA can know about it. :roll: )
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Re: Think Twice About Posting Your Story Too Soon

Postby Werz » Sat Jun 08, 2013 12:03 pm

schmieg wrote:
BB62 wrote:So, is the story/law telling us that if one says ANYTHING to anyone outside of speaking with one's attorney, the attorney can be put on the stand?

If so, my question is "How much/how deeply can the client's attorney be questioned about what their client may have told to a third party?"

IOW, what is the "substance of attorney-client communications"? What you told the attorney, or what he told you?

If one relates how an event unfolded, generally, in an internet posting, but specifically to one's attorney, is one's attorney at risk for testifying?

If privilege is destroyed, then pretty much anything the client said is fair game on questioning for the attorney. In most cases, what the attorney said is not that relevant unless someone is trying to show a motive for the client's actions, but such a desire would more likely be on cross examination as the client tries to implicate the attorney in wrong-doing, sometimes as payback to the attorney for accepting a client who is a loser and destroyed privilege in the first place.

That's actually the unspoken risk. Communication is a two-way street. What the client has already blabbed is water under the bridge and will need to be established by sufficient evidence in order to abrogate the privilege, anyway. That to which the attorney testifies will be limited to the "same subject" disclosed by the client, so as to the client's interests, it's largely just corroborative. The attorney is likely to be more nervous about acknowledging what the client told the attorney and what advice the attorney gave the client.
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Re: Think Twice About Posting Your Story Too Soon

Postby Werz » Sat Jun 08, 2013 12:13 pm

Bombarde32 wrote:I don't know if this is relevant or not, but I from time to time consult for attorneys as an expert. Several have told me that anything spoken (e.g., phone call) is covered by attorney/client privilege, but any emails and attachments are discoverable evidence. My takeaway has been to restrict sensitive matters to telephone only. (That way, only the NSA can know about it. :roll: )

That's BS. To the extent there's a privilege, the privilege exists for oral communications as well as written communications. The real issue there is evidence. It's easier for someone to deny, falsify, minimize or otherwise "spin" what was said in an oral communication which was not recorded. That's a lot harder to do that with a written communication.

As to defense experts in criminal cases, there were also discovery motives for not reducing opinions and conclusions to writing, but under the new discovery rules, that is no longer an option.
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Re: Think Twice About Posting Your Story Too Soon

Postby Bombarde32 » Sat Jun 08, 2013 12:24 pm

Werz wrote:
Bombarde32 wrote:I don't know if this is relevant or not, but I from time to time consult for attorneys as an expert. Several have told me that anything spoken (e.g., phone call) is covered by attorney/client privilege, but any emails and attachments are discoverable evidence. My takeaway has been to restrict sensitive matters to telephone only. (That way, only the NSA can know about it. :roll: )

That's BS. To the extent there's a privilege, the privilege exists for oral communications as well as written communications. The real issue there is evidence. It's easier for someone to deny, falsify, minimize or otherwise "spin" what was said in an oral communication which was not recorded. That's a lot harder to do that with a written communication.

As to defense experts in criminal cases, there were also discovery motives for not reducing opinions and conclusions to writing, but under the new discovery rules, that is no longer an option.


This makes a lot of sense. I have been presenting testing studies and interpretations/conclusions. If it is spoken, someone can always back-pedal and massage what was said. Written communications, much harder to do. I appreciate the clarification!
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