The issue presented is whether communications between a non-client third party representing an individual client and counsel can ever be protected by the attorney-client privilege or the work product doctrine so as to protect Nelson’s communications with counsel in this case… Plaintiff argues there is no legal authority for the proposition that an individual seeking legal advice can delegate to a friend the responsibility of communicating to counsel and then have those communications protected by the attorney-client privilege. Were this a casual request of a friend, as portrayed by Plaintiff, the undersigned would heartedly agree [sic], however those are not the facts as presented.
Relying heavily on the analysis in In re Bieter, 16 F. 3d 929 (8th Cir. 1994) and the in camera review (“in chambers,” without the other side getting a peek) of a notebook of allegedly privileged documents, Judge Lynn found that, in the case over which he presides as special master, a best friend, Nelson, was “the functional equivalent” of Nielsen’s employee and therefore Nelson’s functioning as a conduit between Nielsen and Nielsen’s lawyers did not waive the attorney client privilege between Nielsen and his lawyers.
The ruling is not all that surprising in that courts are generally extremely deferential to the attorney-client privilege. In the Bohnen v. Nielsen case, though, it might have seemed a bit more complicated because Plaintiff alleges malicious prosecution, abuse of process and so on. If the communications between the conduit and counsel buttressed these allegations, can instructions to proceed along such lines be privileged, even if they were deemed to have been from the the client to the lawyer? SNK Corp. of America v. Atlus DreamEntertainment Co. Ltd., 188 F.R.D. 556, 573 (N.D.Cal. 1999) (discussing privilege waiver in the context of a claim for malicious prosecution).
April 27, 2015 Update: Imagine an executive who fires off a revealing confidential letter to her lawyer and, on further inquiry, an adversary learns that the executive hand-wrote the letter and her secretary typed it up and sent it. Think the letter is still privileged? I don’t have any Minnesota case law in hand but I think the answer is “yes” and I think it is not even a close call. But many cases do hold that, “In general, the presence of a third party at a communication between counsel and client is sufficient to deprive the communication of confidentiality.”
I think the point here is that the secretary is not really a “third party.” I expect courts would almost universally hold that the secretary is an agent of the client, that is, the executive. So the secretary’s access to the communication does not constitute a waiver of the attorney-client privilege between the executive and her lawyer.
When is a “third person” a “third party” as opposed to “an agent“?
What if the facts above are the same but we replace “the secretary” with “the executive’s best friend”? And what if the best friend is not simply functioning as a secretary but more as a best friend? What if the best friend is actually “calling the shots” or directing the lawyer to do things (based on his understanding of the interests and objectives of his close friend, “the client”)? I think it is maybe a little bit harder to call the “best friend” the “an agent” of the executive. Still privileged? Some courts have held that the question is whether “the third party is a person to whom disclosure of confidential attorney–client communications is necessary to advance the representation…” If so, the disclosure will not waive the privilege. That would seem to make the secretarial role within the privilege, but what about the case of the best friend?
These issues are now being considered in an audacious (some would say outrageous) on-going battle in Hennepin County District Court described in earlier posts (set out after the break). (Some are outraged by one side. Some by the other side.)
For 30+ years, Defendant Jeff Nielsen in the Bohnen v. Dorsey & Whitney, LLP, et al. lawsuit, has had a confidante, Tim Nelson. Nelson was tasked by Nielsen to talk to Nielsen’s lawyers on Nielsen’s behalf. The question pending before the Court is whether Nielsen can invoke the attorney-client privilege to shield from discovery communications between Nelson and Nielsen’s lawyers. (Here is the plaintiff’s “letter brief.” Here is Mr. Nielsen’s affidavit in which he makes his case to keep the privilege.) To make this fact pattern just a tiny bit more complicated, note that Mr. Nielsen does not have an email account but he runs things through his son’s email account (see Affidavit at Para. 12) or maybe it is just “an account [his] son set up for [Nielsen] in 2010 under [Nielsen’s son’s] name…” (THANKS DAD!) So there’s another conduit to think about, not just Nielsen to lawyers via Nelson…
Plaintiff’s counsel, Bob Hill, tells me that summary judgment motions have been argued and are now pending before Judge Sipkins. It seems to me that there are some interesting questions hanging in the balance, so to speak:
- Is there any point where a lawyer’s ethical duties (Rule 3.1, “Meritorious Claims and Contentions,” Rule 3.3(a)(1) “Candor toward the Tribunal”) place limits on how far lawyers can go in making legal arguments and bringing lawsuits on their clients’ behalf? This actually is a fairly easy answer, at least in part. The answer to question #1 is yes. At least from the point of view of the Minnesota Rules of Professional Conduct, a lawyer cannot knowingly bring frivolous lawsuits and then claim protection as a so-called “zealous advocate.”
- A more difficult question, for Jude Sipkins as he ponders over the pending motions, is whether “over-zealous advocacy” can result in legal liability on the lawyers for abuse of process, malicious prosecution, and other causes of action (the complaint is here) or are these legal claims that can be brought only against the client?
- And another difficult question is who decides where the line is between a “zealous advocate” and an “over-zealous advocate”? The judge or the jury? Regardless, does one have to have expert testimony to establish where that line is? What kind of expert(s)? (Bohnen seeks a jury trial.)
May 27, 2014 Update: (Under the headline: “Oh, It’s a Lovely War…” (Latest Developments in Nielsen v. Bohnen (and others) v. Nielsen (and others)):
The seemingly endless Nielsen v. Bohnen v. Nielsen battle brings ‘Oh it’s a lovely war!’ to mind, a World War I song from the trenches (slightly revised):
Up to your waist in water, up to your eyes in slush, using the kind of language that makes the sergeant blush,
Who wouldn’t love civil litigation?
That’s what we all enquire.
Don’t we pity the poor civilian sitting by the fire.
Updated/Revised Original Post from March 4, 2013 (Originally under subject line: Kafkaesque, Orwellian, or Just Absurd? Take Your Pick): You see a person committing a crime, you call the police to report the crime, and this precipitates years of civil litigation AGAINST you by the person whom you witnessed committing the crime. The wrong-doer accuses you of having had some kind of improper motive for reporting the crime. Your professional life is tarnished by empty accusations and baseless lawsuits launched against you by the convicted wrong-doer. Your family is strained financially and otherwise as you find yourself in a world of civil litigation pain. It all traces back to that fateful call to the police.
It’s ridiculous, right? It’s unbelievable? It’s a bizarre, twisted, dystopian vision.
Unfortunately, it is real, and here in Minnesota. Don’t take my word for it. Read on… (and read on for the case’s latest developments)…
Minnesota Litigator also covered the lawsuits rising out of this imbroglio here.
On dark days, it seems that our justice system is working OK for powerful people and large institutions, even in some cases when they are undeserving or downright destructive, while the justice system does not seem available to the powerless (note, for instance, Mike Unger’s earlier post, “Too Small to Succeed”?).
On the other hand, the law is like a multi-dimensional tug of war between different social factions, whether government v. private citizen, “big business” against consumers, etc., vacillating around a center-point but never settling on it. As we head into the Spring of 2013, the days grow longer, the weather, warmer and brighter. Fair weather feels overdue literally, maybe judicially as well, and maybe nicer days are ahead.
May 9, 2013 Update: Courts are not to be used for harassment, intimidation, retribution, or as weapons for economic warfare. Whether courts were, in fact, used in this way by Dorsey & Whitney, George Eck, Foley & Mansfield PLLC, Thomas Pahl, and Jeffrey Nielsen remains to be seen but that is what Plaintiff Stephen Bohnen’s complaint against these defendants alleges. And that complaint has now withstood defendants’ motion to dismiss (in part) before Hennepin County Judge Thomas M. Sipkins. (The complaint is here.)
Judge Sipkins has stayed the lawsuit pending before him, however, in favor of a related one pending before the Minnesota Court of Appeals on interlocutory appeal from a related case in Washington County pending before Judge Stephen M. Halsey.(Total aside: Judge Halsey is, to my knowledge, the only sitting Minnesota judge with his own blog. Anyone know of any others?)
May 26, 2014 Update: It seems that one Nielsen v. Bohnen chapter may finally be over. (Here is Judge Halsey’s latest and likely (nearly?) last word.) (That is, until another appeal?) Stay tuned for the next installment of Bohnen v. Nielsen, which is on-going.