Lawyer-Client Privilege Debated in High Court

WASHINGTON (CN) - The Supreme Court heard arguments Monday over whether an order to disclose materials supposedly covered by the attorney-client privilege meets the criteria for immediate appeal.

Generally, appeals can only be sought once a final decision is reached. There are only limited exceptions to that general rule.

In the Cohen v. Beneficial case, the Supreme Court established 3 requirements for a category to be allowed immediate appeals. First, that the outcome of the case would be determined by the issue. Second, that the matter appealed must be collateral to the merits, and third, that immediate appeal be vital in reviewing the case.

The case now before the Supreme Court is associated with a class action that was filed against Mohawk Industries Inc., a carpet company. The class action charged the company with hiring illegal aliens, resulting in lower wages for legal workers.

In a separate occasion, Norman Carpenter, who worked as a supervisor at the company, was fired after he complained that many of the employees were illegal.

Carpenter said that he was required to meet with Juan Morillo, Mohawk's outside counsel in the class action, to talk about his complaint. He alleged that Morillo tried to convince him to withdraw his report, which would have surely looked bad for the company in the class action.

When the plaintiffs in the class action learned of Carpenter's dismissal, they sought an emergency evidentiary hearing to collect evidence on the circumstances of his dismissal.

At the same time, Carpenter's lawyers tried to gain access to documents from Mohawk that were linked to his communications with Morillo, as well as the reasons behind his termination.

Mohawk refused to release the documents, citing the attorney-client privilege.

After Carpenter filed a motion to compel production, the district court found that the attorney-client privilege did apply, but that Mohawk had waived the privilege in relation to the class action.

Mohawk did not agree that it had waived its privileges.

The district court judge ordered that Mohawk release the documents, but the company appealed and the judge stayed the order.

Mohawk pursued an immediate appeal to the 11th Circuit Court of Appeals to get the district court judge to vacate the order, but the supervisor, Carpenter, claimed the court of appeals lacked jurisdiction to review the district court's discovery order, arguing for the dismissal of the appeal.

The 11th Circuit determined that Mohawk should indeed release the documents, but recognized a circuit split on the issue.

A major point of debate is whether the attorney-client privilege is important enough to merit collateral order review.

Mohawk argued that the importance of the attorney-client privilege in the legal system is such that it merits a status that allows for immediate review.

Carpenter, disagreed, saying the privilege is less important than some categories that have already been denied for immediate appeals, like constitutional rights. He argued that such an allowance could flood the appellate courts with appeals.

 "Do you really think that confidentiality right is any more important to the proper functioning of society than, let's say, the protection of trade secrets?" Justice Antonin Scalia asked Mohawk's lawyer Randall Allen.

Justice Stephen Breyer expanded on that point.

"Husband-wife, priest-penitent, psychiatrist and patient... all of those are privileged," he said, noting at the same time that none justify a collateral appeals, nor do trade secrets.

"If we grant your collateral appeal," Breyer continued, "don't we have to equally grant it in every situation where a judge arguably makes an erroneous ruling on a question of privilege?"

Allen said he was worried the adversary lawyer could use the information against his client.

"So there is a remedy," Justice Sonia Sotomayor said. "After final judgment, if the information was disclosed erroneously, the court sets aside the judgment, sends it back, and says, you can't use it in the future and so make your case without it."

But the fact that cases which get immediate appeal often have the government or government officials as a party brought scrutiny from Chief Justice John Roberts.

"Does that distinction make sense to you?" Roberts asked of Judith Resnik, lawyer for the respondent. "Government lawyers get the privilege, private lawyers don't?"

Roberts then answered the question many of the justices asked of Allen of Mohawk. "This is not like the other privileges, priest-penitent, other evidentiary privileges," he said, "because it is the privilege that allows lawyers to protect the interests in those other cases."

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