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November 20, 2009

Comments

centralcal

Tom: This is why I love your blog! I am sure this will get picked up by Insty - it is simply too good not to.

Excellent questions, all!

Charlie (Colorado)

It will be interesting to see just how dumb Holder is on this.

As dumb as he needs to be.

Pagar

What about taxpayer privilege? My personal view is that no lawyer who has been employed by a terrorist should ever be allowed into DOJ.

peter

Like I said, the Stuyvesant grad ain't that smart, and he looks smart compared to his boss, the Harvard Law grad.

anduril

How dumb is Holder? This dumb: he works for a president who's a Harvard lawyer and he didn't bother to consult with him on this thorny, thorny issue. Right?

Gregory Koster

Holder will pretend to be as dumb as the situation needs him to be. That will depend on the state of the polls when the situation comes to a head. watch for lots and lots of "inadvertent" Geo. W. bashing during the trials, with all sorts of lurid exposes. Enough of this may weary public opinion, making the polls go south enough for a mistrial or outright dropping of the prosecution. The lawyers will laugh out loud at this prediction, mocking its supposed naivete. They weren't laughing when the Philly Black Panthers called in their chits and got off. So too here.

JM Hanes

JOM vets will take special, ironic, interest in this defense of Holder, penned by Jack Goldsmith and our old pal Jim Comey, identified -- for street cred, one presumes -- as "a deputy attorney general and U.S. attorney in Manhattan during the Bush administration."

They speculate about what the Attorney General "probably considered" and the "likely" basis of his decisions -- and are just about as convincing as Holder was. In a bizarre conjunction, while acknowledging that the KSM trial will require unprecedented security, they simultaneously suggest that there is no reason to think it will make New York "a bigger target than it has been since February 1993." My opinion of Comey hit rock bottom a long time ago, but I'd have expected better from Goldsmith.

glenda

Well, I ranted @ Holder's incompetence and bad judgement, especially in regards to real enemies of America, deleted it....In summary....
Eric Holder is a low quality human being. He is the "Rev.J Wright" of justice..!

hit and run

TM:
I am not a lawyer but in my extensive viewing of "Law and Order" I have never heard of a lawyer refusing to identify themselves to the authorities. Surely if these lawyers did work for the terrorists it is not a secret?

Hmmm...

RIPPED FROM THE HEADLINES...

Have you seen a list of clients Obama represented while at http://campaignspot.nationalreview.com/post/?q=Y2E3N2RhMjQ2NjA3YTdiMDc1MzE2NDUwZmUxMGQ4MzU=>Davis, Miner, Barnhill and Gallard?

anduril

They speculate about what the Attorney General "probably considered" and the "likely" basis of his decisions...

Heh. Why didn't they just cite Holder's testimony? Surely that should be dispositive as to what he intended? Agreed, Comey and Goldsmith look damn silly, speculating in print about the state of mind of an AG who just testified under oath. If he was unable to make himself clear to the US Senate, what's the point in speculating about his intent? Just assume he didn't have a clue what he was doing and work from there. If he wants to make a clean breast of it at some point, fine, but why waste time with silly games?

anduril

Credit where credit's due, hit. The Sun Times is the newspaper of choice of Chicago's black population, yet the ST is trying to root this info out. Otherwise, the MSM is appallingly uninterested.

MarkO

One piece mentioned that Holder and Obama were seasoned litigators. From here on out, every night, I will pray to have them both on the other side of every case I have, especially if DOT joins in.

Someone here squeak up and sing their llitigation praises. Compare and contrast with, say, David Boies.

AJB

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/19/MNFH16JM02.DTL
http://www.mcclatchydc.com/detainees/story/38773.html
http://www.mcclatchydc.com/homepage/v-print/story/76294.html

Good thing we can just assume that everbody ever held at Gitmo was guilty. How would you feel if I were to call the lawyers for the Duke Lacrosse guys "rape defenders"?

bad

I would "feel" that you are wrong.

bad

...as well as know that you are wrong.

AJB

Excellent reubttal. You've clearly shown that the facts are on your side, what with your litany of citations and all.

bad

AJB, JOM has been there and done that over and over. Google and read all about it.

Captain Hate

How would you feel if I were to call the lawyers for the Duke Lacrosse guys "rape defenders"?

Since the state attorney general ruled that the charges should have never been brought, I'd say you'd be pretty damn stupid.

stevesturm

You all - and I'm including you, Tom - are missing the big point. This isn't about whether Holder is or isn't going to name names. Holder would love to have this issue go on about disclosure, for it diverts attention from the real offense:

Obama and Holder have put attorneys who not too long ago were VOLUNTEERING to represent terrorists in charge of various aspect of our anti-terror programs. These lawyers weren't forced to represent scum, they - and their firms - leaped at the chance to do so and often did so without charge.

And it doesn't matter if these attorneys recuse themselves from matter involving their specific 'clients'. Attorneys may claim otherwise, that attorneys don't necessarily have to sympathize with the clients to provide them with representation, but I feel - and I think most of the public would agree - that attorneys who VOLUNTEER to represent our enemies have something wrong with them... and shouldn't be within 100 miles of formulating and enforcing policy.

Where's Glenn Beck when you really need him?

clarice

It's not relevant in this instance and I do not mean to detract from your fine post, TM, but under some circumstances the information that someone has conferred with and engaged someone else as counsel is privileged information.

I recall reading just yesterday in the obituary of Mr. Miller a prominent white collar atty who represented many high profile attys that he knew more entries into the Wh than did the secret service and had secretly been secretly engaged by a number of presidents.

Extraneus

I feel a Barry Manilow song coming on.

AJB

I can't beleive you fucking wingnuts think that those Duke white boys were innocent.

You don't even bother trying to hide your racism anymore, do you?

centralcal

AJB: To quote the great Rick Ballard:

Piss Off.

In other good news, there is this:

Bill Moyers is leaving weekly television.

The New York Times' Elizabeth Jensen reports that the PBS newscaster is retiring from his Friday night program, "Bill Moyers Journal," on April 30, 2010.

"Bill Moyers Journal" launched in April 2007.

Jensen reports that it was Moyers' intention to retire at Christmas this year, but PBS asked him to stay on through April to help raise funds.

"I am 75 years old," Moyers told Jensen. "I feel it's time."

Yep, bud, it is way past time.

Captain Hate

Go troll somewhere else, Oyster Boy. You've already had your tiny glowbull warming nuts kicked into your body cavity and now you're spoiling for another beatdown with bullshit racism charges, the last refuge of a loser. Nice job of your avatar changing because of your IPI disguiser, a true sign of a loser.

bgates

Good thing we can just assume that everbody ever held at Gitmo was guilty.

Who needs assumptions? Holder's going to run fair trials to determine guilt, and he's assured convictions and death penalties will follow. If the trials produce not guilty verdicts by any of the completely unforeseeable circumstances we've been talking about, Holder and Obama assure us the not-guilty will be held in prison for the rest of their natural lives.

Jane

I think most of the public would agree - that attorneys who VOLUNTEER to represent our enemies have something wrong with them... and shouldn't be within 100 miles of formulating and enforcing policy.

Steve,

I disagree with the first part of your statement but not the second. I don't think you have to have something wrong with you to volunteer to represent someone who has been deemed entitled to representation, for a lot of reasons, anymore that you have to have something wrong with you to represent Hasan or Timothy McVeigh. To a certain degree that is about the toughest job a lawyer can have. OTOH I'd up your 100 miles to 1000.

anduril
...under some circumstances the information that someone has conferred with and engaged someone else as counsel is privileged information.

I recall reading just yesterday in the obituary of Mr. Miller a prominent white collar atty who represented many high profile attys that he knew more entries into the Wh than did the secret service and had secretly been secretly engaged by a number of presidents. If so, do you know what the reasoning for that was?

clarice,

1. Were the identities of the high profile attorneys whom he had represented covered by the attorney-client privilege?

2. Were the identities of the presidents whom he had represented covered by a privilege, and if so was it the attorney-client privilege or was it some sort of executive privilege?

anduril

Addendum: if the identities of the high profile attorneys were covered by the attorney client privilege, do you know what the reasoning was, and do you know whether the privilege was asserted in the face of attempts to discover their identities?

narciso

The problem is Jane, is that was part of the massive public relations campaign coordinated
by Saudi and Kuwaiti clients, to demonize the US military and intelligence services,
uncovered by Deborah Burlingame. They don'r belong in the courtroom at all, because of what and how they behaved, abrogating Geneva's
requirements

clarice

I gathered from the obituary the identities of the presidents he represented was covered by the attorney-client privilege--executive privilege would not apply to a private counsel .

That's not the only instance I recall when attorneys have hidden the names of their clients just the most recent.
"
Courts have declared that the fact of an attorney-client relationship itself need not always remain privileged information (National Union Fire Insurance Co. of Pittsburgh v. Aetna Casualty & Surety Co., 384 F.2d 316 [5th Cir. 1967]); the privilege may be upheld, however, if the very existence of an attorney-client relationship could prove to be incriminating to the client (In re Michaelson, 511 F.2d 882 [9th Cir. 1975], cert. denied, 421 U.S. 978, 95 S. Ct. 1979, 44 L. Ed. 2d 469 [1975]). The attorney-client privilege does not always protect the client's name or the amount paid to an attorney (Wirtzv. Fowler, 372 F.2d 315 [5th Cir. 1966]). "
LUN

anduril

It appears that the Comey/Goldsmith article's leaves unaddressed the underlying reason for Holder's decision: the rash and unnecessary campaign promise to shut down Gitmo. Note their reasoning:

Mohammed is many things: an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the U.S. criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs.

The question, then, is: with no end to al Qaeda's war against the US in sight--since presumably it will only end when al Qaeda chooses to end it and the US agrees to call it quits on that basis--what is the rush to try KSM in any forum? He can be held to the end of the war. Fine.

They continue by noting two reasons that tell against using military commissions:

One reason commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the commissions' validity. This uncertainty has led to many legal challenges that will continue indefinitely -- hardly an ideal situation for the trial of the century.

...

In either trial forum, defendants will make an issue of how they were treated and attempt to undermine the trial politically. These efforts are likely to have more traction in a military than a civilian court. No matter how scrupulously fair the commissions are, defendants will criticize their relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them. Some say it is wrong to give Mohammed trial rights ordinarily conferred on Americans, but a benefit of civilian trials over commissions is that they make it harder for defendants to complain about kangaroo courts or victor's justice.

These are both political reasons that have nothing to do with either justice for those who were murdered or with defense of the nation. It is unbecoming for the US to submit to pressure of that sort in such grave circumstances.

This trial is likely to tax the US judicial system sorely. The federal judiciary is not used to conducting show trials, but that is in effect what Obama has publicly demanded that they do. The judge--and any appellate courts that more than likely will handle this case--will be under enormous pressure to bend to the president's public demand for a guilty verdict and a death sentence.

This last part is amusing, too:

The potential procedural advantages of military commission trials are relatively unimportant with obviously guilty defendants such as Mohammed, but they help explain the attorney general's related decision last week to consign five men accused of attacking the USS Cole to a military commission. Holder indicated that he was doing so in part because the Cole was a military target outside the United States, but that reason does not hold up. The Pentagon was a military target, many aspects of the Sept. 11 attacks were planned abroad, and the Cole attack is already the subject of a federal indictment in New York.

It is more likely that Holder decided to use a commission system still learning to walk because the Cole case is relatively weak and will benefit from the marginal advantages the commission system offers the government.

It almost appears that Comey and Goldsmith are publicly offering Holder what they believe will appear to be a better and more believable rationale than he came up with himself.

anduril

if the very existence of an attorney-client relationship could prove to be incriminating to the client

In Obama's case it's more than likely a matter of political inconvenience. Courts will no doubt bend over backwards in his behalf.

MarkJ

Word on the street has it that Eric Holder is working on a self-improvement book. Here are some working titles:

DARE TO BE STUPID...THE ERIC HOLDER WAY!

ERIC HOLDER: WHAT-ME-WORRY?

HOW TO LOSE CASES AND INFLUENCE TERRORISTS

START THE INSANITY!

MEN WHO HATE PEOPLE...AND THE AG'S WHO LOVE THEM

Tom Maguire

"but under some circumstances the information that someone has conferred with and engaged someone else as counsel is privileged information."

I can almost sort of see that - if, for example, Tim Geithner had engaged a high-priced tax specialist before not paying his taxes a few years back, I could see where he would want to keep that secret later.

But I tossed in a cite to a Campaign Spot piece suggesting that the normal practice is disclosure, which would make more sense here - I can see the attorney not wanting to advertise his association with the terrorist but why would the terrorist care? (Of course, the ability to keep the relationship secret may make it easier for the terrorist to retain counsel... hmm.)

stevesturm

But weren't the attorneys who VOLUNTEERED to represent these terrorists quite open about their involvement? It seemed for many of them that it was a badge of honor. It's only now that they have something to hide?

narciso

A number of persons, Benjamin Wittes, Phillip Bobbitt, even Andrew McCarthy, if memory serves have wanted to introduce National Security Courts or some other mechanism. But is dubious what would be the precedent or
even statutory authority for such a thing.

clarice

Yes--the normal course is disclosure TM,And the Geithner example is a perfect example of an exception to the normal opractice.

steve--they did volunteer and made no secret of those cases we know about. What if someone feared he'd been picked up on an NSA sweep and consulted counsel about it--a person not under indictment or publicly known to have any connection with terrorism>

PD

Good thing we can just assume that everbody ever held at Gitmo was guilty.

Or at least a select few who have already stated that they're guilty.

Matthew Crandall

AJB:

Name a prisoner at Gitmo that wasn't captured on the field of battle, and who hadn't taken up arms against or soldiers? And they were fighting against us minus uniforms, ranks, identification, etc. They should have been lined up and shot as spies--- it would have been perfectly legal under international law and would have saved us a bunch of trouble.

PD

Huh. I just don't understand why this doesn't have an Amazon sales rank higher than #439,333.

JM Hanes

TM:

I should think disclosure would be an absolute prerequisite for employment at the DOJ -- an issue in which the public, not just Congress, per se, would also have a compelling "right to know" interest, as the Congressional Q&A suggests. Surely the judicial standard of appearances seems of paramount importance for DOJ lawyers and officials as well, perhaps in this case above all others.

1057

Ambassador Jon Hunts ma

"Having achieved a positive atmosphere it is now important to begin implementing," he said.

Obama on the Afghan war. Iraq war. Pak conflict. So, now that you understand his pain, he will do something as long as you understand his pals from Harvard get cash.

Not his fault: he wanted to pain all the anti PLOs and those Japanese and Korean leaders were so mean and had to have those strokes. The Chinese did buy in with the HUD guarantee, so it's not like GM not buying what Buffet wanted bought. Asia should be happy and not worry about the accidents, heart attacks and pain, I mean weather, for a while.

Neo

Eric Holder seems to be on a one man crusade to reabilitate the name of Alberto Gonzales.

And here I thought you were supposed to be a bright guy to become USAG.

clarice

Yes, JMH--perhaps disclosure to the Atty General so that he can avoid a conflict of interest situation, but to the Congress and public?

In lawfirms, when a new client isunder consideration--all members of the firm are told and asked t divulge internally any potential conflict with past or present clients before the representation is undertaken. But that doesn't mean to me that in the exceptional case where the client would be injured by the mere fact of having consulted with counsel or a particular counsel (say an expert on money laundering),that does not mean the atty's obligation to keep the privilege doesn't apply outside the firm.
While the analogy between internal firm disclosure and disclosure to the AG as oposed to public disclosure isn't a perfect one, I think in most cases the same rules would apply.

Neo

PD: Customers Who Bought This Item Also Bought ..
Rules for Radicals by Saul D. Alinsk
Quotations From Chairman Mao Tse-Tung by Tse-Tung Mao
The Plan: Big Ideas for Change in America by Rahm Emanuel

Ann

JM Hanes:

Welcome back!!!! Now all we have to do is find the real Kim. :)

clarice

The Comey/Goldsmith rationale(strong cases to court..weak ones to military commissions) was suggested earlier by Eric Posner at Volokh.

I'm not surprised by Comey--he targetted the vice president's ffice with his buddy Fitz precisely because his ego was wounded when he lost battles with Cheney and Libby on protections to be granted terrorists in the WOT.

I don't know much about Goldsmith.

Agian Ithink that rationale misses with Graham did not--it is not workable inthe field. The guys doing the detention and interrogation have to know instatntly if this is a detention of an illegal combatant or a criminal defendant.

All the rest is nonsensical B.S. by people who haven't any common sense or practical experience of battlefield conditions.

PD

Well, they also buy Beck, Malkin, and Palin.

anduril

clarice, I just read the Michaelson case. You cite it in support of the proposition that "the privilege may be upheld, however, if the very existence of an attorney-client relationship could prove to be incriminating to the client." However, to the contrary, Michaelson (the attorney) was held in contempt for refusing to disclose details of his representation (including fee arrangements) of a client who had been granted use immunity. The Court of Appeals upheld the lower court and found "no merit in any of appellant's allegations of privilege."

I make no claims to expertise in re privilege, however my understanding is that the attorney-client privilege is normally asserted by the client.

The court states the general principle in its opinion:

the authorities are clear that the (attorney-client) privilege extends essentially only to the substance of matters communicated to an attorney in professional confidence. Thus the identity of a client, or the fact that a given individual has become a client are matters which an attorney normally may not refuse to disclose, even though the fact of having retained counsel may be used as evidence against the client. [case citations omitted] To be sure, there may be circumstances under which the identification of a client may amount to the prejudicial disclosure of a confidential communication, as where the substance of a disclosure has already been revealed but not its source.

I'm afraid I'm not ingenious enough to come up with an example. However, the statement even though the fact of having retained counsel may be used as evidence against the client contradicts what has been advanced on this thread, I think.

Obviously, none of this applies to the DoJ attorneys, as you said, since their representation of terror clients would already be public record. A certain amount of digging by an enterprising reporter or by Senate staffers should turn up the names of the lawyers.

I'm still puzzled by the lawyer in the obit. Assertion of the privilege would only follow upon a demand by some competent authority, like a court--correct? Does the obit really say that there was such a demand that he successfully resisted? Wouldn't the privilege have been a matter for the client(s) to assert? If the clients predeceased the attorney, the issue would appear moot--the mere fact of representation could hardly harm them at that point.

anduril

clarice, I'd have to look it up, but I believe Goldsmith's ego was also seriously bruised in the GWOT legal wars within the administration.

Sue
"Going Rogue" was released this week and its print run already has been increased from 1.5 million copies to 2.5 million, HarperCollins announced Friday.

2.5 million. Unbelievable.

Sue

Sorry, wrong thread.

clarice

anduril--I'm too tired to go thru your last long post in detail.

Obviously the claim was ridiculous in Michaelson since the client had been granted use immunity.

In the obit that wasn't a legal argument--just an example of cases where counsel's obligation to clients (ex presidents) had kept him from disclosing his representation of them.

Here's the clearest examply my sleepy head can come up with when the obligation to a client requires that absent a waiver, the lawyer should not ordinarily disclose the representation.
Lawyer Smoothie is a well-known counsel who only represents criminal defendants in money laundering cases. He never handles any other kind of case at all. The govt is looking into money laundering . Mr, Probity has engaged Lawyer Smoothie to advise him about some transactions he'd been involved in.

Unless Mr Probity needs Lawyer Smoothie to represent him in a matter on record. Lawyer Smoothis should disclose that representation to no one IMO.

PD

Unbelievable.

Mmm, not really!

And more power to her.

Fresh Air

OT--

Hey, where is Kim? The biggest damn AGW story in years has broken and we have no thread on this? I'm going through the downloaded files now. You wouldn't believe the cover-up these people have going on.

TM--

Put up a thread on this, will you please?

BR

Testing.

BR

Hm, interesting. I tried to post something about Kim and got a strange msg from "Webpage."

BR

I'll persist.

Yeah, where's our Kim? What was that site where he recently wrote he live-blogged JOM during the height of the Libby trial, when he couldn't log on here? Maine weather something.

We'll have to send out a search party :)

BR

And I'll persist some more:

If you can't log on here, try with a different email. Use variations in preview till you find your regular avatar, if you want to. Just changing a letter from lower case to upper case can change an avatar.

BR

Shouting at the devil - I wonder if using the word "b a n," then somehow b a n s the commenter.

BR

Typepad, unban Kim.

BR

The problem with Holder is that Obama placed him.
The problem with Obama is that Chavez placed him.

See LUN.

BR

The tool, the thank you, and the result.

">http://obamaisabitch.files.wordpress.com/2009/07/barack-obama-pissing-on-america.jpg">

Donald

Ya know, I was down at the Westin Diplomat Resort in Hollywood Florida (I mention this because I just want to say, never, ever stay there) when I heard about the prosecutions. I started bitching about Holder's and the DOJ attorney's who were going to prosecute had been working for firms engaged in the defense of these whatever they ares.

Some extremely fat lady with a very strong northeastern accent, poked her overly bloated pie hole into my face across a beach chair and told me I hated Obama. She had also loudly spent about 10 minutes gloating about how Oprah was gonna destroy that bitch Palin. I had not injected my piehole into her space to tell her to shut the f*** up.

To which I replied: "What's that got to do with anything?" She also called me a liar. I did not tell her how grotesequly obese she was and how annoying her accent was. Then I continued drinking my frozen rum runner and reading my history of the Arab-Israeli Wars by some dude named Chaim Herzog. What a book! Cause I like light reading at the beach.

Pagar

IMO, there is no chance that Chavez pulled that on his own. One needs to look at who Chavez works for.

anduril

clarice, I'm not buying your example.

Obviously, no lawyer should disclose communications from a client unless authorized to do so by the client--or ordered to do so by a court that rules on the privilege issue. The same would be true of a clergyman or doctor. However, to acknowledge the fact of representation and no more is not a violation of the privilege, except in the most unusual circumstances.

The Michaelson stated the general rule as:

the identity of a client, or the fact that a given individual has become a client are matters which an attorney normally may not refuse to disclose, even though the fact of having retained counsel may be used as evidence against the client.

Again please not: even though the fact of having retained counsel may be used as evidence against the client.

Can you find a case in which a lawyer was reprimanded for disclosing the mere fact of representation? I would be very surprised. The Michaelson court offers some hypothetical parameters, such as a situation in which the identification of a client may amount to the prejudicial disclosure of a confidential communication, as where the substance of a disclosure has already been revealed but not its source?

As I said, I'm not ingenious enough to devise an example of such a situation, but your example is clearly not within those parameters.

As for the lawyer in the obit:

your version #1: I gathered from the obituary the identities of the presidents he represented was covered by the attorney-client privilege...

your version #2: In the obit that wasn't a legal argument--just an example of cases where counsel's obligation to clients (ex presidents) had kept him from disclosing his representation of them.

It appears to be as I initially thought. This is an example of a professional simply being discrete about his services to clients. If a client requests that a lawyer treat the fact of their relationship as confidential he should do so in the absence of some higher obligation--but the mere fact of representation it is not a privileged matter absent some very unusual circumstances.

Wikipedia's article on Attorney-client privilege is brief but very good on the general rule--for anyone who wants to get a good idea of what sort of communications are privileged.

matt

we are in the bearded spock universe.....only explanation for all this weirdness....

Letalis Maximus, Esq.

The government law firm conflict rules are different from those in a private firm.

You can look it up.

clarice

anduril, it used to be that privilege was held to cover only communications between a lawyer and his client but the model rules expand that to cover the very fact of the reprsentation itself:

Model Rules of Professional Conduct
Client-Lawyer Relationship
Rule 1.6 Confidentiality Of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

anduril

clarice, I don't understand why you're trying to confuse this issue.

The Model Rule does not speak to disclosure of the fact of and attorney-client relation, but only to "information relating to the representation of a client." What does that phrase mean? A clear indication can be obtained from the exceptions to the privilege that the Model Rule provides.

Each one of the exceptions that the Model Rule enumerates very clearly presumes that the information to be revealed relates to a communication of substantive information that the client made to the lawyer--not the mere fact of an attorney client relation. Thus it's equally clear that "information relating to the representation of a client" refers to substantive communications of the client to the attorney, not to the mere fact of an attorney-client relation.

Now, granted, a discrete professional will go the extra mile and will maintain the confidentiality of the relation in most circumstances, simply as not being anyone else's business. But that is a matter of professional practice and of maintaining a trusting relationship--it does not have a bearing on the actual nature of the privilege that courts have recognized.

But there is recent case law on this whole issue. Here is a summary of the recent cases which directly address revelation of an attorney-client relationship (as well as a brief further comment re the attorney-client relation in general):

In United States v. Leventhal, 961 F.2d 936 (11th Cir. 1992), Robert Leventhal, an attorney in Florida, refused to disclose to the IRS the names of clients who had paid him over $10,000 in cash. Leventhal's clients had wished to remain anonymous, and Leventhal argued that the attorney-client privilege gave them that right. Leventhal cited the Florida Rules of Professional Conduct, which require disclosure of confidential client information only in rare circumstances. The federal government sued Leventhal. The court ruled that disclosing the clients' identities revealed only the existence of an attorney-client relationship, a simple factual matter that is not within the scope of the privilege. Therefore, Leventhal was compelled to reveal the sources of the payments.

The U.S. Court of Appeals for the Sixth Circuit followed Leventhal in United States v. Ritchie, 15 F.3d 592 (1994), cert. denied, 513 U.S. 868, 115 S. Ct. 188, 130 L. Ed. 2d 121 (1994). Attorney Robert Ritchie had challenged the same IRS policy, but the court noted that Congress gave the IRS broad powers to ensure compliance with the tax code. Appeals court judge Alice M. Batchelder held that there was no "constitutionally protected liberty interest in spending large amounts of cash without having to account for it."

Attorneys have decried the federal government's position in such cases, but the attorney-client privilege remains useful as a defensive measure in more general circumstances. The privilege remains an exception to the general rule that individuals must testify to all facts within their knowledge.

http://law.jrank.org/pages/4547/Attorney-Client-Privilege.html

Now, one could legitimately argue that the Leventhal court was compelling disclosure not merely of the fact of the attorney-client relation but also of what the Model Rule calls "information relating to the representation of a client"--i.e., the form in which payment was made. I might even agree. Be that as it may, the fact remains that the actual holding of the case was that the existence of an attorney-client relationship, [is] a simple factual matter that is not within the scope of the privilege. Attorneys may decry that ruling, but a court ruling trumps the opinions of attorneys every time. There is, moreover, nothing in the language of the Model Rule that actually puts it at variance with the rule that courts have established and follow.

From the same source as above, here is the general description of the rule:

In the law of evidence, a client's privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it.

Again, the limiting phrase "communications ... made for the purpose of furnishing or obtaining professional legal advice or assistance" clearly goes well beyond the mere fact of the attorney-client relation.

Finally, it must be borne in mind that an attorneys claim of privilege is no more than his opinion unless it is asserted and ruled on by a court.

clarice

I haven't more time to spend on this--it seems we are in disagreement. I will note that in pdf form which I can't reproduce the NMex revision of its ethics law notes that the ABA new model adds this and suggests in the very fact of representation is confidential escept for the enumerated instances.

YMMV but in the examples I've given I would feel that absent a waiver I should not reveal the represenation.

clarice

Here I found it in another form I can copy:
"
1.6:102 Model Code Comparison
The principle of confidentiality is enlarged in several respects and narrowed in a few respects, compared with the corresponding provisions of the Code. One enlargement is that NMR 16-106(A) applies the confidentiality requirement to all information about a client "relating to the representation," while under the Code the confidentiality requirement applies only to information "gained in" the professional relationship that the client asks to be kept confidential or that would harm the client if disclosed. See EC 4-1, EC 4-2, EC 4-3, EC 4-4, DR 4-101(A), (B)&(C), and DR 7-102(B).
"

http://www.law.cornell.edu/ethics/nm/narr/NM_NARR_1_06.htm#1.6:200

anduril

No, no, no.

1. You haven't addressed the issue of what information about a client "relating to the representation" actually means.

2. You haven't addressed the court rulings. Model Rules are nice, but they don't bind courts.

3. You either didn't read the stuff you cite or you're deliberately obfuscating. You claim:

the ABA new model adds this and suggests in the very fact of representation is confidential escept for the enumerated instances.

Not only did I find nothing to suggest anything of the sort, but I also found this in the material you cited:

Further, it has been held that "inquiries into the general nature of legal services provided do not violate the attorney-client privilege because they involve no confidential information." Schein v. Northern Rio Arriba Elec. Coop., 122 N.M. 800, 932 P.2d 490 (1997).
Jim Hlavac

Rather than argue if there is this or that nuance of law or precedent on the matter consider this: If so many of the top lawyers at the Dept. of Justice feel they have to recuse themselves on any grounds from so many cases that the department has pending then what exactly are they doing, um, ah, 'working' there? If they cannot do the job because of conflicts of interest -- then fine -- they cannot do the job -- and should just quit. Then they would be free, to, um, move about the country.

clarice

Well, now, Jim, That is an excellent point.

Anduril, I am talking about the code of ethics..When asked to reveal a client or trying to decide whether I can or should, I haven't time to get a bar ruling in the normal course of events and look to the rules. Of course they vary by state but as I said in the unusual circumstances I cited, I'd not disclose that information. If pressed by a judge or a tribunal, I'd seek guidance from the bar association, but trust me if my only area of practice is defending people charged with the crime of money laundering, I'm not listing my clients in Martindale Hubbell without their permission.

anduril

You're still evading the issue. No one is suggesting that you publicly advertise who your clients are. Are you really saying that if a judge asked you, Did you at any time have a lawyer-client relationship with XYZ--I ask nothing about the nature or scope of the relationship but only the bare fact of the relationship? you'd tell him to wait till you'd consulted the Bar Association? That runs counter to the cases and the ethics code provisions I've cited (and which you've ignored).

clarice

Under what circumstances is the judge asking, anduril because that would make a difference to me? Is it in connection with his executor's paying my bill or is it to include my client in a criminal invesigation or to discredit him in some way?
My comments were in response to TM's"I am not a lawyer but in my extensive viewing of "Law and Order" I have never heard of a lawyer refusing to identify themselves to the authorities. Surely if these lawyers did work for the terrorists it is not a secret?"

And I can imagine circumstances where I'd refuse to respond in a terrorist case to such a question if I had consulted with an unindicted, indeed unknown, associate of the accused.

Many years ago I knew a NY lawyer who was disbarred for refusing to turn over his diary of meetings with a movie star client to a grand jury investigation about communicsts. He claimed atty client privilege even about the meetings as I recall.

It was denied, he doctored the pages to remove her name and was found out and disbarred.
Posthumously-- years later-- the 2d circuit said the disbarment was wrong and his claim of privilege should have been sustained. He took the rap rather than breach what he considered a violation of his duties.

boris

if a judge asked ...

A more fair question might be "if special persecuter Gerrald Fitzpatrick asks ..."

clarice

Yes--as in the old case of the NY grand jury, it is more likely an investigator or prosecutor would ask than a judge. And it is more obvious in such a circumstance why a privilege may be involved.

anduril

Again, the Grand Jury demand went well beyond the mere fact of representation--his diary undoubtedly contained more than "on this date I entered into an attorney-client relation and on this date the relation was terminated." IMO, the 2nd Circuit was right--please tell them for me if you get the chance. :-) Of course, if the prosecutor had some plausible reason to believe that the film star was engaged in criminality of a nature that would endanger the public, that might well change the picture--everyone recognizes such exceptions.

The Leventhal ruling upheld requiring a list of clients sorted for amount and manner of payment. I would have thought that that might go too far, but obviously evidence of money laundering is not privileged. Clearly the court considered that lawyers are on notice as to the money laundering laws and cannot hide behind the privilege if they engage in business practices that include laundering of money.

anduril

But the Michaelson case illustrates the course for the lawyer to take if he has doubts--hold out until a judge issues an order.

clarice

As to your last point--exactly.
As to the diary in question, I believe the atty felt that even having her name made public in the course of the investigation would be damaging to her. I don't believe the undoctored diary had much detail except for her name and the dates of the meetings, but it's been so long and I cannot easily find the case online to confirm that.
In the heat of these things, prosecutors frequently cross over a line and get away with it as we know.

Sara (Pal2Pal)

I have a question of either Clarice or Anduril. It seems you are talking about revealing contact or representation in a court or legal setting. But isn't the real question, what the hell are these lawyers doing at DOJ in the first place?

Are you saying, Clarice, that during a vetting process, DOJ can not know that a potential hire is really a terrorist lawyer or terrorist sympathizer who has VOLUNTEERED to represent jihadis?

If that is the law, the law needs to be changed.

clarice

No--I am not talking about the DoJ situation as to which I said the obligation of the lawyer was to notify the Ag of any potential conflct. I have said at least twice--maybe more--that I was offering a caveat to TM's general proposition.

Sara (Pal2Pal)

Okay, I know you have said you were responding to Tom, but the discussion, for a non-lawyer gets confusing. I just wanted to clarify. Thanks.

DAVOD

""Mohammed's military tribunal was already under way when Obama came into office, stopped the proceedings and, eight months later, announced that Mohammed would be tried in a federal court in New York."

Maybe someone should check to see who joined th Justice department before they shut down the tribunals.

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Wilson/Plame