Why isn't a misfiled attorney-client memo fair game for use in a trial?

Question

This question is regarding the misfiled DOJ letter that explained why they have a poor case.

It appears that the case is going to move forward with the letter removed, with the letter scrubbed and sealed, and with everyone in the case pretending this mistake never happened.

But I don't understand why that's the case. Why should everyone pretend this never happened? Is it impossible to use this to strengthen the case in court somehow? Is something implying "even their own lawyers don't believe their own arguments" not something you're allowed to point out in court? Is there a legal duty to ignore attorney-client-privileged material that the attorney released by mistake, or is NYC just somehow feeling bad for DOT and trying to be nice?

Answer 1

Is there a legal duty to ignore attorney-client-privileged material that the attorney released by mistake, or is NYC just somehow feeling bad for DOT and trying to be nice?

As I understand it, this would be governed by Federal Rule of Evidence Rule 502(b), which protects inadvertently disclosed attorney client privileged communications.

(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).

Applying this test, (1) clearly applies, as it wasn't intentional. Factor (2) maybe applies - I am not sure. Factor (3) also applies; this was the purpose of the filing that the DOJ made to seal the record and ask the parties to delete the document if they downloaded it.

Why should everyone pretend this never happened? Is it impossible to use this to strengthen the case in court somehow? Is something implying "even their own lawyers don't believe their own arguments" not something you're allowed to point out in court?

When we talk about attorney-client privilege, we usually talk about how this privilege allows a client to be open and honest with their attorney. But there's a second thing it does: it allows the attorney to be open and honest with their client about their odds of winning. This is particularly important if the client is about to embark on a years-long legal battle that is going to cost a great deal of taxpayer money.

Without this, an attorney would have to balance two goals: to accurately communicate the odds of winning to the client, but also avoid speaking too negatively of the lawsuit in case their communication leaks.

Answer 2

canada*

Solicitor-client privilege is the client's to waive.

In the case that a lawyer inadvertently discloses information that would be protected by solicitor-client privilege, that is not an automatic waiver of the privilege. See R. v. Ward, 2016 ONCA 568 at para. 35:

Inadvertent disclosure does not necessarily mean that privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:

• The way in which the documents came to be released;

• Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;

• The timing of the discovery of the disclosure;

• The timing of the application;

• The number and nature of the third parties who have become aware of the documents;

• Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing party; and

• The impact on the fairness, both actual or perceived, of the processes of the court.

(These or similar factors also apply whether when disclosure is due to the client's inadvertence.)

You ask:

Is something implying "even their own lawyers don't believe their own arguments" not something you're allowed to point out in court?

It would be irrelevant, unless the case turns on a defence based on legal advice. If the substantive legal argument is weak, it is sufficient to just point that out and make your own legal argument. Nothing is added, legally, by pointing out that the other side believes their argument to be weak.

In court, it is extremely rare that a lawyer's belief is relevant to the issue. In almost all circumstances, all that matters is the evidence about material facts, and the lawyer's submissions about the law. The lawyer is only stating their argument, not their belief. A typical phrase used by a lawyer putting a legal argument to the court is, "I submit that..."

E.g. if the question before the court is whether something is a thing of value, all that matters is what the legal test is, and what the material facts are. Whether the lawyer advised the client that it was a thing of value or not does not change whether it is in fact a thing of value.

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