Although the court held that the union representative in this case was acting as an agent of the attorney, attorneys should not carelessly assume that it is always OK to have a union rep. around while you discuss facts with your client.
In a footnote, the court warned, We do not suggest that an independent privilege exists for communications between an individual and his union representative. Nor do we imply that the presence of a union official while an individual discusses an ongoing investigation with his attorney never will abrogate a claim of privilege.
The court emphasized that its holding was limited to cases in which a third party is present solely to assist the attorney in rendering legal services to the client, and added that the third partys status as a union representative is immaterial to the question of the attorney-client privilege.
In other cases, a client could lose the privilege, if the union representative doesnt understand his role, and testimony at the privilege hearing reveals that.
In addition, review of privileges is for clear error (assuming the district court applies the proper legal standard). In a close case, the district court will be affirmed, regardless of whether it finds the privilege intact or abrogated.
Attorneys should also be aware of a district court case from New York, containing dicta very valuable to a party seeking abrogation of the privilege, In re Grand Jury Subpoenas Dated Jan. 20, 1998, 995 F.Supp. 332 (E.D.N.Y.1998).
The facts are admittedly not on point. Police officers suspected of criminal activity made statements to their union representatives with no counsel present. Based on the conversations, the unions retained counsel for the officers. When the representatives were subpoenaed, they attempted to quash the subpoena by trying to fit their communications with the officers into the attorney-client privilege, in a variety of ways.
Because of the significant factual differences, the actual holding of the case is not relevant to any case involving communications between a client and an attorney, with a union representative present.
However, dicta in the opinion goes further and suggests that the presence of a union representative could destroy the privilege.
The court wrote, A private person … generally has no need for a representative to communicate with an attorney. Only in extraordinary cases, as, for example, where a client needs an interpreter, or where he is so seriously injured that he cannot deal directly with counsel, has the attorney-client privilege been extended to the designated representative of an individual client. That is not this case. Each police officer was competent to discuss his concerns fully and frankly with licensed counsel without the assistance of a third party (cites omitted). Id., 995 F.Supp., at 340.
Later, the court wrote in a footnote, In oral argument, one of the officers defense attorneys noted that [police union representatives] had particular knowledge about precinct procedures that could be useful to his representation of his client. The point is irrelevant to the attorney-client issue before this court. The fact that defense counsel may some day wish to speak to one of the subpoenaed witnesses about these procedures does not mean that he could not communicate with his client without the assistance of the witness. To the contrary, defense counsel conceded at oral argument that they independently interviewed their clients after being retained. Id., at 340, fn.6.
In the case at bar, the plaintiffs presented no evidence to contradict or undermine the defense testimony that the union representative was there solely to assist the attorney.
In a future case, however, effective cross-examination and a careless answer by the client, attorney, or union representative could provide a factual basis for distinguishing the case at bar, and lead to a holding that the privilege was abrogated by the representatives presence.
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David Ziemer can be reached by email.