Ethics. Handling Confidences Carefully

• Author: Bruce A. Green
• Pages: 13-14

13VOL 46 | NO 3 | SPRI NG 2020

In 1948, the Kravitches won a land-

mark victory in the U.S. Supreme Court

for Georgia shrimpers who challenged

South Carolina shrimping regulations. In

1961, they represented Richard J. Reynolds,

one of the richest men in the country, in

his divorce.

Nearly 30 years after her return to

Savannah, Phyllis Kravitch became the

first female president of the Savannah

Bar Association, but only after pointedly

refusing to accept an offer to be the bar

association’s secretary, a position normally

given to a lawyer right out of law school.

Soon thereafter, the Chatham County

Courthouse was consumed by talk of who

might run to succeed a retiring superior

court judge. One day, another lawyer re-

marked to Phyllis: “If you weren’t a wom-

an you’d be perfect.” She called him the

next day: “You talked me into it.”

Phyllis turned down campaign contri-

butions from lawyers and contributions of

more than $100. She soon realized that, for

the most part, lawyers are the only con-

tributors to judicial campaigns. But she

was able to mobilize support from decades

of practicing law: Former clients would

call to offer help, and she would ask them

to invite their friends and neighbors over

so that she could come talk to them. By

the time of the election, she had met most

of the voters in Chatham County. In 1976,

she became the first woman elected to

the superior court bench in Georgia. Two

years later, President Carter nominated

her for a seat on the Fifth Circuit.

Phyllis was surprised by the letter from

the nomination commission explaining

that several people had put forth her name

and asking her to complete an application

form. When she demurred—“The Fifth

Circuit’s for the likes of Learned Hand

and Elbert Tuttle”—her sister Sally had

a ready response: “Learned Hand is dead

and Elbert Tuttle is already on that court.”

After a little convincing from her sis-

ter, Phyllis filled in the forms and went to

Atlanta to be interviewed by the nomina-

tion commission. While she waited in a

courthouse anteroom for her interview,

a committee member walking through

asked her to fix him a cup of coffee. Phyllis

told him that she’d be glad to, if only he’d

be so kind as to show her where it was

kept. He apologized once he realized she

didn’t work at the courthouse. When the

committee’s chairman introduced them

later that day, Phyllis told him, “Oh, I

think we’ve met.” At which point, the man

who needed his coffee apologized again.

The interview was quick, and in short or-

der her nomination sailed through the

Senate and she became the third woman

appointed to a seat on a U.S. circuit court

of appeals. (Florence Allen was appoint-

ed to the Sixth Circuit by FDR in 1934;

Shirley Hufstedler was appointed by LBJ

to the Ninth Circuit in 1968.)

Even after she was appointed to the

bench, it took some time for Judge Kravitch

to be recognized. Judge Kravitch was in

New Orleans for her first sitting on the

Fifth Circuit. It was raining. So she and

her two women law clerks waited outside

their hotel for a cab to take them to court.

But as the hotel doorman started to usher

them into a cab, two men with briefcases

cut them off. “I’m sorry ladies, but we have

important business.” An hour or so later,

Phyllis Kravitch led her colleagues into the

courtroom. There, sitting before her, were

the men with important business.

At conference, the presiding judge was

puzzled. “What in the world happened in

that first argument,” he wondered. “That

was one of the best briefs I’ve ever seen.

I was looking forward to oral argument,

but that lawyer was so nervous he could

hardly put two sentences together.”

Phyllis Kravitch knew what had hap-

pened, but she remained silent. She never

regretted her silence at conference. She

did regret that she didn’t speak at the oral

argument. It was her very first day, she

often recalled. Had she only had a little

more experience, she would have smiled

at the attorneys and said: We met ear-

lier; don’t worry about it, but you really

shouldn’t steal a cab.

It was like her to take the insult in

stride. It was like her to not let it change

who she was or how she behaved. And it

would have been like her to smile. She

faced the world with that smile, a touch

bemused and sometimes a trifle weary

but always generous and rich with hard-

earned wisdom. q

ETHICS

Handling

Confidences

Carefully

BRUCE A. GREEN

The author is the Louis Stein Chair at Fordham

University School of Law.

Suppose that during the discovery phase

of a lawsuit, you assert that the attorney-

client privilege protects documents con-

taining your communications with your

client—but the court disagrees. For exam-

ple, suppose the court finds that a public

relations expert attending your meeting

with the client, or with whom you shared

confidential communications, was not

needed to assist you in providing legal

services. Therefore, the court concludes

that the attorney-client communications

were not privileged or that the privilege

was waived. May the client blame you for

failing to do what was necessary to estab-

lish and preserve the privilege? Might you

even be at risk of professional discipline

for having failed to protect the privilege?

The professional conduct rules of many

U.S. jurisdictions have a provision based

on Rule 1.6(c) of the ABA Model Rules of

Professional Conduct, requiring lawyers

to “make reasonable efforts to prevent the

inadvertent or unauthorized disclosure

of, or unauthorized access to, information

relating to the representation of a client.”

Even without this specific rule, the or-

dinary duty of competence, from which