Beyond the Bar
| Publication year | 2023 |
| Pages | 19 |
Privilege Law 101 - Final Exam Revised and Updated
By Warren Moise.
Privilege law. Hate it! It's a snake in the grass, and I'll bet every day a lawyer manages to step on its head (except holidays) somewhere in this grayut state. Evidentiary privileges are controlled in the United States Courts by Federal Rules of Evidence 501 and 502 (as well as the common law, and relevant statutes and regulations) and in South Carolina's courts by Rule 501 (as well as the common law, and relevant statutes and regulations). Of course, constitutional law has its own body of rules relating to privilege.
So, here's a takeout exam for fun, which we'll grade leniently. And despite the fact that I'm already highly-paid for writing this column, an Apple (maybe a Dell computer) for the teacher will help your grade.
1. The big strong daddy is here to "handle" things
Daddykins showed up with his baby girl (she's 20 years old) in your office for every client meeting. Daddy is paying you to defend her against a DUI charge in Goose Creek so you included him with copies on all letters and produced the letters during discovery. Now, at trial, the other lawyer is cross-examining baby girl's daddy about everything said in your meetings and asking for copies of all letters. You object: "He's paying me, judge, not her." Does the judge:
(1) Agree with you and tell the other lawyer to shut up?
(2) Call you a goofball and allow the cross-examination?
(3) Take a break and call Justin Kahn to try and figure it out?
Answer: (2). Bubba, assuming there was a privilege, you sure as heck waived it. First, he's not your client. Floyd v. Floyd, 365 S.C. 56 (Ct. App. 2005). Second, you waived the privilege by producing the documents during discovery. Maybe it would've been best to speak to baby girl in private.
2. Miss Transactional Lawyer
Betty Boo, who won the Cali Award for Real Estate Transactions in law school, didn't take trial advocacy. "I ay takin' no trial ad. I gonna be a trans act ional lawyer," she'd said. And Betty was right. She never sets foot in the courtroom. Now her accounting-firm client and its former law firm are being prosecuted by the U.S. Attorney. "Cooperate with me and lemme see your file," says the co-defendant law firm." "We're all in this together." Criminal defense counsel leaves it up to Betty to handle. She does. "No way!" Betty replies to the codefendant. "Not until I get a signed common-interest rule agreement dotting all 'i's' and crossing every "˜t.' I don't want no U.S. Attorney getting a hold of any privileged stuff in my file."
Accordingly, Betty Boo drafted an ironclad common-interest-rule agreement and shares extremely relevant documents in her file...
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