So pardon the ignorance, but I’d like to know whether attorney client privilege only prohibits the attorney from disclosing confidential information, or that it also protects other parties. Does it also allow the client to refuse to answer certain questions? Can the client, for example, confide everything in an attorney, then invoke the privilege categorically, assuming non-coterminousness with protection from self-incrimination.
Someone once told me that the Sopranos conducted all their discussion in their lawyers’ offices for this reason.
However, Wikipedia says that the privilege is invalid if the communication was conducted in the presence of others. So, if Joe talks with his attorney while walking on the sidewalk, the privilege drops?
Can a plaintiff request bench trial?
Is there an explanation for defendants’ greater frequency in filing motions for summary judgment?
With regard to coterminousness above, if a writer isn’t sure whether a word is in the dictionary, but attaching a suffix nevertheless results in a word that everyone can understand, is the usage of the word justifiably acceptable?
I’m going to leave the legal question alone since I don’t have an answer and even though I assume you’re not nearly as interested in this part of it, I just want to jump in and mention that assuming you’re talking about the TV show, this…
is very much not the case. Virtually all the discussions on the Sopranos took place at the Bing, at Satriales, at family gatherings, in Tony’s basement with the air handlers running (a few episodes where even based around this) and several other places. In fact, while I don’t want to say they never talked in a lawyer’s office, it certainly didn’t happen on any kind of a regular basis.
Attorney client privilege generally protects communications between attorney and client but does not protect information that exists independent of that communication. So if FACT 1 is true, you cannot make FACT 1 privileged simply by disclosing it to your attorney.
So if the opposition wants to know FACT 1, they can ask you about FACT 1, but they cannot ask you the substance of the communication with your attorney about FACT1.
Similarly, if you write a letter to your attorney about FACT 1, then that is privileged. If another document contains FACT 1, you cannot make FACT1 privileged just by turning that document over to your attorney.
Further, the attorney-client privilege is generally waived if another person is present during an otherwise privileged communication.
Also, in cases where a party has a right to a jury trial, that party must typically timely make an affirmative request for a jury trial and timely pay jury fees. If not, then the right to a jury is waived and defaults to a bench trial. So there is no need to request a bench trial… just don’t assert your right to a jury and you get a bench trial.
I’m not sure about the summary judgment issue. My guess is that if a plaintiff brings a lawsuit, then the plaintiff holds the cards (evidence). The defense wants to be able to rebut the evidence at trial. So the defendant files an MSJ to force the plaintiff to essentially disclose its evidence and legal theories before trial. Normally, this is done by pre-trial discovery, but sometimes an MSJ can be another method of pre-tial discovery.
A plaintiff is less likely to file an MSJ because doing so lays all the plaintiff’s cards on the table before trial. All the defendant has to do to defeat an MSJ is raise a single issue of fact that needs to be decided at trial and cannot be decided on an MSJ. If the defendant succeeds in defeating the plaintiff’s MSJ, then the defendant has now seen all the plaintiff’s cards and will be better prepared to defense the case at trial.
Not really, no. Generally, all the evidence submitted on an MSJ must be evidence that would be admissible at trial. Motions to determine admissibility and other evidentiary issues before trial are called motions in limine and typically occur immediately before trial.
Legal Professional Privilege covers all matters pertaining to the giving of legal advice. Communications made therein are privileged. The client does not have to tell what s/he told the Counsel. An example, if a client says to me that she did kill her husband, that is privileged and she cannot be asked whether she told me. She can be asked whether she killed her husband.
Re other people, strictly no, practically yes. A good lawyer maintains the highest standards and does not talk about a case’s details, whether privileged or not unless absolutely necessary. And its not unknown for other people to sit in on a conferance, parents with minors and even with young adults and at times a spouse.
On a bench trial depends on juridiction.
Summery judgement by a defendant will ordinarily be filed if the Claim filed makes no case to answer for the Defendant or where if the Plaintiff’s assertions even if accepted in full would not make the Defendant liable. As for increase in summery judgement applications, I have no idea whether or not there has been an “explosion”, I do know that the trend in most jurisdictions is for only geniuenly disputed matters to be taken to trial
In the US, either party can request a jury trial in a civil case. There can only be a bench trial if both parties (expressly or implicitly) agree that they do not want a jury.
SJ is primarily a defendant’s tool because to win on SJ, the plaintiff has to prove as to every element of the case that there is no disputed issue of fact, whereas the defendant can win on SJ by proving as to any single element of the case that there is no disputed issue of fact.
I am not your lawyer, and no lawyer-client relationship is intended or created by this comment. This is not legal advice; this is just anonymous chat.
Clarification (“that” is ambiguous): If you write a letter to your attorney about FACT 1, the letter is privileged but FACT 1 remains discoverable. See this explanation of the Costco case; it’s a bit dense and unreadable, but the gist of it is that the Supreme Court of California held that the entire letter sent between lawyer and client was privileged, including the recitation of facts therein.
However, if that other person is “present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted” then the privilege remains. For example, if the client speaks Spanish and the lawyer speaks English, an interpreter will be needed for them to communicate. The presence of the interpreter is “reasonably necessary for the transmission of the information” etc. and therefore does not destroy privilege. See Cal. Evid. Code section 952.
Re the Sopranos example, merely holding your crime-planning meetings in your lawyers office does not mean your meetings are covered by privilege. This is called the “crime-fraud exception” to the attorney client privilege. The lawyer’s services may not be used to plan a crime or fraud. See Cal. Evid. Code section 956.
Yep. I remember one motion for summary judgment a defendant brought against my client; of the thirty or forty pieces of evidence submitted, NONE were admissible (some due to lazy/sloppy lawyering and some because they were inherently inadmissible). I objected to the evidence on appropriate grounds, the judge sustained all my objections and therefore denied the motion because it was not supported by any evidence.
Also regarding SJ, a Defendant is typically someone with deep pockets like a corporation or an insurance company. A Plaintiff will be seen as a regular Joe, one of us.
As such, a Defendant desperately wants to win as a matter of law because when a jury gets involved, it typically wants blood.
IANAL - re 1. I suspect the privilege does not extend to planning future crimes. It only applies to matters relating to existing legal issues. If a lawyer is found to be facilitating crimes, then they stop being a lawyer pretty quick - as soon as the local bar associiation can remove their license.