Can official information protected by attorney-client privilege be shared with personal lawyer? During a homeowners association executive session, the board members were given a briefing protected under attorney-client privilege. A board member is now concerned about his/her personal liability due to the (in)action of the board as a whole. The Association's lawyer (hired to represent the Association, not individual homeowners) presented the board members with information about prior case law which directly affects how the Board should handle a specific topic. Before giving his presentation, the lawyer stated that the "following information I am going to share is protected by attorney-client privilege. It is being given to you in the official context of being elected board members. You may not share this information outside of this meeting without the express permission of the Board by way of vote." Can an individual share with his/her personal lawyer, attorney-client privilege protected information learned while acting in his/her official capacity, in order to determine personal liabilities?
Attorney-Client privilege is a one-way duty: The Attorney has to maintain protected information in confidence. It's a professional duty supported in law. There is no corresponding duty for the Client to maintain anything in confidence. The client can waive the privilege at will. Some sample limitations to waivers are governed by Federal Rule Evidence 502. (Granted, in this scenario the concerned board member may be bound by some confidentiality agreement or fiduciary obligation as a consequence of service on the board, or membership in the association, but that's a different matter.) The ABA points out , in its article "How to Lose Attorney-Client Privilege" that: Either voluntary or inadvertent disclosure to outside or non-covered recipients, professional advisors outside the privilege, and experts and consultants, can result in waiver as a matter of law. In this "Ten Things" article the author points out: Business advice, however, is never privileged and – for in-house counsel in particular – the line between the two can appear blurry. ... If a document that is otherwise privileged is shared with third parties, then the privilege is lost. ... A common misperception among the business is that all confidential information is privileged or if they label the communication as privileged they can keep the documents out of the hands of third parties. As we’ve seen, this is not correct and the fact that there is a non-disclosure agreement or other type of confidentiality agreement in place will not make a document privileged nor will it preserve the privilege if it is disclosed to a third party.
Revealing such information might be an example of an Invasion of Privacy tort, specifically &quot;Disclosure of Private Facts&quot;. Not all US states recognize this tort. The Findlaw page on &quot;What is Invasion of privacy&quot; says: Public disclosure of private facts laws protect your right to keep the details of your private life from becoming public information. For example, publicizing facts about a person's health, sexual conduct, or financial troubles is likely an invasion of privacy. While state laws vary, the general elements of this tort are as follows: 1.The defendant publicized a matter regarding the private life of the plaintiff; 2.The publicized matter would be highly offensive to a reasonable person; and 3.It is not of a legitimate concern to the public. To publicize a private matter, laws generally require that the private information is disseminated in such a way that it is substantially certain to become public knowledge A linked sub-page of the above says: Generally, disclosure to one or two people does not constitute a public disclosure unless there is an implication that the information should be spread around. The Digital Media law Project's page on &quot;Publication of Private Facts&quot; says much the same thing. The 1976 law review article &quot;The First Amendment Privilege and Public Disclosure of Private Facts&quot; by Samuel Soopper Discusses this tort in some detail, although it mostly focuses on publications by the news media where first amendment issues are in play. It seems as if such a tort case might be hard to bring because of the small number of people to whom the fact was disclosed. A claim for Intentional Infliction of Emotional Distress might fit such a situation, but this would depend on the specific facts of the case, and again, on the state where the issue would be tried. In any case, this would not be a criminal action, and a lawyer would have to be consulted to better determine if a civil action could be pursued.
Does the above represent a conflict of interest for the associate and/or company X? Yes. This is in violation of, for instance, rule 1.9 of Michigan Rules of Professional Conduct (MRPC). See also Ulrich v. Hearst Corp., 809 F.Supp.229 (1192). Commentary in MRPC regarding Lawyers moving between firms explains: there is a presumption that all confidences known by a partner in the first firm are known to all partners in the second firm. See also Audio Mpeg, Inc. v. Dell, Inc., 219 F.Supp.3d 563, 574-575 (2016): Though the attorney in question has not made an appearance in this case, he &quot;could have&quot; — and did — &quot;obtain[ ] confidential information in the first representation that [is] relevant&quot; here. [T]he surety that he received confidential information from Plaintiffs [...] weighs heavily in favor of W&amp;S being disqualified even though he is not working on this case. [...] Moreover, the attorney possesses confidential information which could harm Plaintiffs if used by one of the W&amp;S attorneys who has appeared in this case and works in his office. Your description reflects that, in his former employment, the junior associate has confidential information which can be used in a way materially adverse to the interests of the former client. The junior associate violated the aforementioned rule insofar as X already &quot;start[ed] a countersuit or [took] another action&quot; using the junior associate's knowledge. This warrants disqualification of X's law firm as in Audio Mpeg. But disqualification might not suffice. X itself might already have become aware of the disclosure by the junior associate. That enables X to use that information even if it switches law firms. This might estop X from asserting counterclaims, at least those that otherwise would be covered by the tolling of the statute of limitations in this multi-year litigation.
No, you are not obligated to provide the requested information. You're out of trial court and into the court of appeals, where the civil discovery rules have basically no effect. If the case gets kicked back to the trial court, you would likely be required to respond truthfully. To cover your bases and look responsible, the most proper thing to do would probably be to respond to the discovery requests, but answer with nothing but an objection to the requests on the basis that the Rules of Civil Procedure do not apply after the case has been dismissed. At that point, the burden is on the other party to make a motion to compel, which he probably won't do. And if he does, I'd expect the court to deny it summarily based on the dismissal.
Absolutely not. Lack of authority Law enforcement officers do not have the authority to grant immunity from prosecution. The decision to prosecute lies with the district attorney's office. Courts have sometimes held that a promise of immunity by a police officer can make resulting statements inadmissible, but that's it -- the state is not bound by the police officer's promise to not prosecute, except in exceptional cases. They can gather other evidence and prosecute anyway. Prospective immunity The contract claims to provide immunity against prosecution for future crimes. Contracts against public policy are void, and I'm having trouble thinking of something which is more against public policy than a license to commit crimes. No one can offer that immunity through contract. In a recent trial of a Boston mob boss, he attempted to claim that a federal prosecutor had given him immunity for any and all future crimes for some time period; the court did not accept that, because a license to break the law is not a valid contract. Public authority There is a situation in which certain officers can grant authority to break certain laws: to catch bigger criminals. However, for fairly obvious reasons, there are extremely strict rules on when this is valid, both on the government procedure side and the claiming-the-defense side. The defense can only work if the defendant honestly believed the government had authorized his actions, if the government actually had authorized them, or if he followed official government legal advice. In this case, the defendant has no idea if government officials have agreed to the terms; he would have approximately no chance of convincing anyone he legitimately thought that the government approved of his actions. They certainly wouldn't be actually properly authorized, and he hasn't sought advice from the government. Other issues Police aren't the only people on this site. An investigation tends to involve one or more non-government agents who provide testimony in court. No contract with a private party can stop them from testifying in a criminal trial; certain relationships mean testimony isn't allowed (e.g. a lawyer can't testify about dealings with their client without client permission), but regular users could be required to testify against the site operator (possibly on the basis of actual immunity). Sources Public authority stuff: this Justice Department page, plus some discussion in this order. Prospective immunity: that same order. Lack of authority: myriad readings.
The law on the web page is not current: as of the beginning of the year, RCW 23.86.030(1) reads (you'll find this under Sec. 9103) "The name of any association subject to this chapter must comply with part I, Article 3 of this act" and is otherwise unchanged. In Article 3, sec. 1301 governs names, giving the sec'y some discretion to deem a name to not be distinguishable from another, saying in (3) "A name may not be considered distinguishable on the records of the secretary of state from the name of another entity by virtue of...variation in the words, phrases, or abbreviations indicating the type of entity, such as "corporation," "corp.," "incorporated," "Inc.,". It does not list "co-op", but there is no legal requirement that the list be exhaustive. This discretion is, however, related to distinguishability. However, (4) then says An entity name may not contain language stating or implying that the entity is organized for a purpose other than those permitted by the entity's public organic record. and I think that means "no". Note that LLCs, LPs, LLPs, business corporations, nonprofit corporations and cooperative associations all have name requirements of the type "must contain" and "may not contain" (a cooperative association, oddly, has no "must contain" requirements). I would say that we have to conclude that "legislative intent" was to more closely align names and legal status, and the new "purpose-implication" language isn't brilliantly clear, but that is what the intent of the law is. This is one of those issues that could easily work its way to the Supreme Court, if someone wanted to make a state case of it.
The relevant law for you is ORC 4705.07. (A) No person who is not licensed to practice law in this state shall do any of the following: (1) Hold that person out in any manner as an attorney at law; (2) Represent that person orally or in writing, directly or indirectly, as being authorized to practice law; (3) Commit any act that is prohibited by the supreme court as being the unauthorized practice of law. (This is a prime example of legal language that cannot be interpreted on the basis of rules of English -- the issue is the meaning of "that person"). This does not prohibit you from giving an opinion as to what the law is, which is a right protected under the First Amendment. You would be in trouble if you said "This is my advice as a lawyer". Section 2 b.t.w. says that only the Supreme Court (of Ohio) can determine if a person has committed an act on their don't-do-it list. Rule 7 pertaining to their procedure is here. Section 2 therein enumerates the relevant categories, which fall under the categories "rendering of legal services for another" and "Holding out to the public or otherwise representing oneself as authorized to practice law in Ohio", which is what the statute says.
If the two lawyers will never be on opposing sides of a case, there's no conflict of interest and thus nobody cares. For example, two lawyers in different fields probably won't encounter a conflict. If the lawyers are involved in the same field, there's a risk of a conflict of interest. Normally, the lawyers can shield themselves from legal trouble by disclosing the conflict any time it comes up. Where possible, the lawyers should avoid such cases before the conflict even starts (i.e., a lawyer should not take a case if they believe that the other lawyer will be on the other side). Similarly, disclosing the relationship to their boss allows their boss to avoid assigning such cases. In short: Such a relationship could have consequences, but a competent, ethical lawyer is unlikely to experience them.