I have been warned not to waive my attorney-client privilege during my civil lawsuit, what does that mean?

1 September 2014

To understand the importance of the attorney-client privilege, initially, one must understand what information a party is generally entitled to during a lawsuit/litigation.  Generally, the other party is entitled to what you say to others about the facts of the lawsuit.  This needs to sink in because people are used to the world where another person cannot get information about communications they have with another unless someone tells them.  This is better known as the secret.  Well, in litigation, a party has the right to compel (that means require them with the force of law) to divulge the communications under what is called “Discovery” in a lawsuit.  In Discovery, parties have to share information, whether they like it or not, that is sought and reasonably calculated to lead to the discovery of admissible evidence.  Mass. R. Civ. P. 26(b)(1).  (This means, in general, there are no secrets and this is one reason why lawsuits are sometimes not filed.)  So, if you blab to your best friend about the lawsuit, generally, the other party gets to know what you said.  This can be quite damaging to a party’s interests in a lawsuit and there are an infinite amount of scenarios one can imagine where disclosure can be damaging.

   

Now let’s turn to what the privilege is and what its purpose is.  The attorney-client privilege is a legal right to withhold the content of communications between people, in this case communications between an attorney and a client, which would otherwise be discoverable.  The privilege only exists when there is: 1) a communication; 2) made between privileged persons; 3) in confidence; 4) for the purpose of seeking, obtaining, or providing legal assistance to the client.  On the federal level a similar formula for the attorney-client privilege has been cited: 1) where legal advice of any kind is sought 2) from a professional legal advisor in his capacity as such; 3) the communications relating to that purpose; 4) made in confidence; 5) by the client; 6) are at his instance permanently protected; 7) from disclosure by himself or by the legal advisor; 8) except the protection be waived.  US v. Mass. Inst. of Tech., 129 F3d 681, 684 (1st Cir. 1997).

The purpose of the attorney-client privilege is simple, “it encourages disclosures by client to lawyer that better enable the client to conform his conduct to the requirements of the law and to present legitimate claims or defenses when litigation arises.  Id.  See Upjohn Co. v. US, 449 U.S. 383, 389-90 (1981).  In layman terms, it allows a person to speak to their attorney and obtain legal advice without the worry what is said will be used against them.

The focus of this post is on waiver, which generally is the intentional relinquishment of a right, and in the context of the attorney-client privilege is doing something to give up the protection or not doing something to ensure it exists (which should be referred to as forfeiture, but to conform to slippage in legal parlance we will continue to refer to it as waiver).  One way you can waive the privilege is simply to blab what you said to your attorney or what he said to you, which is simple enough to understand.  XYZ Corp. v. US (In re Keeper of Records), 348 F.3d 16, 22 (1st Cir. 2003).  So, don’t talk about a lawsuit when you are involved in one at the cocktail party, at the gym, or at the water cooler at work.

Another way one can possibly waive their attorney-client privilege is to bring a third party into a meeting with your attorney.  It is common for a person to bring a third party to a meeting with an attorney without realizing or having any thought that there could be a danger in doing so.  It should be understood, that the presence of the third party generally defeats the attorney-client privilege.  That means, having a meeting with your lawyer with a third party present, the communications are not protected.  (This does not include agents of the lawyer, like a paralegal of the law office.) There can be exceptions found where the attorney-client privilege continues even when a third party is in the meeting.  US v. Mass. Inst. of Tech., 129 F3d 681, 684 (1st Cir. 1997) (noting and citing to other decisions ruling that information shared with “secretaries, interpreters, counsel for a cooperating co-defendant, a parent present when a child consults with a lawyer” were still privileged despite the presence of the third party); Deloury v. Deloury, 22 Mass. App. Ct. 611, 613 fn.1 (1986) (noting presence of grown daughter for “moral support” in contemplation of filing a divorce proceeding did not waive attorney-client privilege). 

 

The legal question appears to center around the client’s intent that the communication was to be confidential, but that subjective intent alone may not be found to be “sufficient.”  US v. Mass. Inst. of Tech., 129 F3d 681, 684 (1st Cir. 1997).  It appears to the author from the case law that the question of whether the attorney-client privilege is waived by the presence of a third party in a meeting with an attorney is almost decided on a case-by-case basis because who “closely related persons” are and whose presence is “vital” or “appropriate” to a consultation can be debatable.  Id.

Needless to say, the case law on the subject is mixed and it is not always legally clear whether the presence of a third party will waive the privilege.  This means, instead of creating an issue the other side can argue in its favor and taking the risk that a court many months from a meeting with your attorney determines that the attorney-client privilege does not exist because there was a third party in the room, the safer move is to never enter a meeting with an attorney with any third party present. 

   

In the event that you are involved in a lawsuit/litigation or are facing one and have concerns over the attorney-client privilege or other concerns, feel free to give this office a call.

I am facing a motion for summary judgment in Massachusetts, what is it and what should I do?

9 August 2014

A motion for summary judgment is a way a party to litigation moves (asks) a court to grant it judgment (they win) prior to a trial on the merits (where people testify in court, etc).  It is typically filed after the discovery period of litigation has ended.  That means it is filed after the parties have shared the documents and information (facts) they were required to according to the rules of civil procedure.  The standard language that you will find in most motions for summary judgment is basic enough to relay what the motion is all about, that is usually something like this: summary judgment is appropriate as materials show that there is no genuine issue as to any material fact and the [plaintiff/defendant] is entitled to judgment as a matter of law.  The procedural rule permitting a motion for summary judgment is Rule 56 of the Massachusetts Rules of Civil Procedure.

Overall, the other party is arguing that, based on the facts established, or at least not reasonably disputable, that if you applied the law to these facts, it would win.  It is also saying that there is no reason for a trial and its concomitant time and expense.  Of course, a judge would decide this motion as only a jury is assembled for a trial. 

We will break down some of the parts.  One part is that the moving party is saying that there is no “genuine” issue over material facts.  It means that a party cannot dispute something based on a position or opinion that is too speculative or simply wishful thinking unsupported by the facts.  It has been described “an issue of fact is ‘genuine’ if the record [facts established in case] taken as a whole could lead a rational trier of fact to find for the moving party.”  Brooks v. Peabody & Arnold, LLP, 71 Mass. App. Ct. 46, 50 (2008).  This means the judge will place himself in the position of a hypothetical “trier of fact” [which means either a judge or jury that would decide the matter at trial] and consider whether any rational fact finder could rule the other way.  In other words, to allow the motion is to say, no reasonable person would think this fact is not established.

The other important question is whether all the “material” facts are established.  This means that there could be a genuine dispute over a fact, but it is not a “material” fact.    A moving party “need not prove that no factual disputes exist, only that there is no genuine dispute over a material fact.”  Town of Norwood v. Adams-Russell Co, Inc., 401 Mas. 677, 683 (1988).  The moving party is saying all the material facts, the facts that matter, are established.  It has been described that a fact is material only if it might provide a basis for a fact finder to find in favor of the nonmoving party.  Jenzabar, Inc. v. Long Bow Group, Inc., 82 Mass. App. Ct. 648, 649 (2012).  It has also been described that a fact is material if it has a bearing on the outcome of the case.  Jupin v. Kask, 447 Mass. 141, 145-46 (2006).  There are many other important issues, such as timing and evidence, when facing a motion for summary judgment that must be addressed.

Simply put, a motion for summary judgment is serious business.  If allowed, it will end the case or if it is a partial motion for summary judgment, decide at least a part of the case.  If the motion is not allowed, a trial is necessary. 

If you are facing a motion for summary, you are facing what could be the end of the road; essentially, it is now or never on whether you will obtain help.  If you need help, feel free to give this office a call.

In defense of Judge Robert S. Murphy Jr.’s June 11, 2014, Order finding Iheanyi D. Okoroafor in contempt of court at the Belchertown District Court.

16 July 2014

There has been much ado over the jailing of a retired 73 year-old man by Massachusetts District Court Judge Robert S. Murphy, Jr. over the failure to pay $508.27 as reported in the Boston Globe on July 2, 2014.  As a cursory review of the on-line comments about the story illustrate, not much provokes more debate than how debt collection should work and what exemptions society should allow.   Those comments also show a widespread ignorance of the basics of the debt collection process in Massachusetts.  Before attempting to defend Judge Murphy’s actions, a few basic pointers are in order.

First, yes there are no debtor’s prisons.  That means if you do not have the means to pay, you do not go to jail for failure to pay, or to force you to earn to pay through forced hard labor, for your debt.  But if you do have the means, a court can order you to pay.  And you do go to jail (as Mr. Okaroafor arguably did) for failure to obey an order.  So, yes, people can and do go to jail for not paying a debt (that our society believes you have the means to pay, as determined by a judge applying the applicable exemption laws).

 

Second, the process Mr. Okaroafor was in was not small claims court, although that apparently was the court that rendered the initial judgment, it was really the supplemental process session at work here.  This is the session where straight up this-guy-now must-pay-me type collections occur.  Typically, a creditor gets a judgment and then files a separate action in the supplemental process session if it choose that path for collections, and many do.  Sometimes, for whatever reason, the author has observed a small claims judgment obtained in the small claims session just automatically roll into supplementary process.  What this means is that in the supplementary process session, the legal fact that you owe the money has been established, and that question is off the table so to speak.

A side note is in order.  In general, pro se litigants often argue something off point at a hearing due to their lack of knowledge and understanding as to what the particular hearing they are appearing at is to decide.  Doing this indicates a lack of knowledge of procedure and can hurt the pro se litigant’s credibility to argue legal arguments.  In the supplementary process session, this translates into a pro se trying to argue the merits of the case, when, as Judge Murphy correctly stated to Mr. Okoroafor when he did this very thing, “that ship has sailed.”  It is very common occurrence in the supplementary process session to the frustration of the clerk or judge presiding.  To avoid this waste of time, for example, one of the clerks in the supplementary process session in Springfield District Court regularly announces before the session starts to all in the courtroom that it is not the place or time to argue the merits of your case.  This announcement is analogous to the no parking sign “Don’t even think of parking here” that we all see in places that are tempting to illegally park in.  The point is, day after day when pro se litigants raise this, it becomes difficult for the human beings involved, even if they are supposed to be professional lawyers, clerks, or judges, not to become frustrated.

Third, civil contempt is the act of knowingly violating a clear and direct court order that you had the ability to follow.  This is the end of the road for debtors.  And what all people need acknowledge is that society needs that force to keep it civilized.  Somehow, we all instinctively know (and must rationally acknowledge) that there has to be an end of the line, and in debt collection, it is to be jailed by civil contempt for a debt someone has the ability to pay with non-exempt income.

Now with these basics in mind, the author will turn to defending Judge Murphy’s order and then make a few equitable observations based only on a review of the on-line Boston Globe July 2, 2014, article and the audio recording of the hearing at issue.  First, it appears that there was an order already in place before Judge Murphy found Mr. Okaroafor in contempt.  The prior order required Mr. Okaroafor to make payment before the hearing and he did not comply.  And Mr. Okaroafar had been to multiple hearings involving orders to pay that he did not comply with before.  It is true that Massachusetts pension income is exempt from collection and that was the only income the debtor stated he had personally at the hearing. 

  

However, all of this about Judge Murphy not following exemption laws, and more specifically, being ignorant that Massachusetts pension income is exempt, appears not to be as deserved as reported because there is more to consider here.  Judge Murphy did not act alone.  If the contempt finding was wrong, the responsibility for it is shared with the judge that issued the prior order to pay that Judge Murphy was enforcing, as it should be safe to assume that the issue of whether Mr. Okaroafar was required and had the ability to pay was decided in the affirmative at a prior time.  We are assuming here that at the prior hearings the other judge(s) did not have adequate basis to make the order, such as learning that Mr. Okaroafor had non-exempt assets or income to satisfy this $508.27 debt.   Yes, Judge Murphy made a mistake, but he did correctly believe he had an obligation to enforce the prior judge’s order.

Second, debtors in supplementary process are required to complete a form listing their assets and income and expenses.  Did Mr. Okaroafar complete this form?  Or did he refuse?  If there was a form, what appeared on it?  Is there more information that was before Judge Murphy when he made his decision?

Third, at the hearing, Mr. Okaroafor stated as one of his expenses his wife’s medical bills.  Although it is laudable to pay your spouse’s medical bills, it can be argued that such an expense is not necessary since it is essentially a gift to an adult third party, which is not to take priority over paying a judgment creditor.  Moreover, he stated his wife had insurance and social security income, which  supports the idea that money from Mr. Okaroafor to pay the bills was not needed even if it could be considered to take priority over paying a judgment creditor.  All of this could have been in Judge Murphy’s mind that day.  So, the error of his decision was more about not realizing Mr. Okaroafor’s income was exempt, and less about his actual ability to pay.

Fourth, Mr. Okaroafor was not a help to himself.  He did what many pro se debtors do at supplementary process hearings, try and argue the merits of the case that have already been decided. In addition, the author has a hard time believing that Mr. Okaroafor was not informed prior to the hearing, if not many times at the multiple collection hearings he was afforded over the 18 months since the judgment issued, that arguing the merits of the case was off-point at these types of hearings.  There are two points here, one that by doing this he most likely lost his credibility to make a legal argument, and more importantly, if it was believed he was repeatedly told “that ship had sailed” then by raising it repeatedly he was exhibiting a refusal to follow and acknowledge rules and procedure.  Not a wise choice when being subject to a contempt hearing and facing possible incarceration for not following orders. 

 

In addition, it was Mr. Okaroafor who was supposed to advocate for himself and had the most responsibility to argue that his income was exempt, but he did not.  After 18 months of collection proceedings, he had ample notice that he would have to defend himself.   The article stated that judges should “know and apply the law correctly” when dealing with unrepresented parties.  That may be true, but it is equally true that judges are also not to be advocates for one side, but instead impartial judges.  Keep in mind that there was another pro se litigant on the other side.  Who should he favor?   The answer is neither party.  This is not to say that a judge should ignore the law when it is before him, but the point is that just how far a judge is supposed to advocate for one party and not the other is debatable and there is a point that a judge can go to far in advocating for one side.  The judge’s proper role should be considered in any debate on the subject.

Another interesting fact on this point that did not appear in the article is that Mr. Okaroafor can be heard stating that he wanted to make payment arrangements.  But this was in stark contrast to his prior statements that he could not afford to pay and after the order was issued to put him in custody.  This indicates he may have thought he could have avoided the contempt at the last minute by offering to pay, but wanted to push it until the very end. 

Lastly, Judge Murphy was not mistaken in finding that Mr. Okaroafar did not comply with the prior order; he did not make the payment by the hearing date.  According to the article, there were many orders issued requiring him to pay and he repeatedly did not comply and raised the wrong argument when questioned.  Thus, Mr. Okaroafar had many orders to pay issued against him that he did not follow.  Yes, Judge Murphy apparently considered exempt income in finding Mr. Okaroafar could have complied with the payment order, and based only on the information presented at the hearing at issue, that was legally incorrect.  But he was correct that the payment was not made.

   

Some final, non-legal common sense points are in order.  The day Mr. Okaroafar was jailed he was entering a hearing where the question of whether he was in contempt of court was to be decided.  It is clear from the audio recording that Mr. Okaroafar was unfamiliar with the legal process in general and was not adequately prepared.  (For example, he thought at one point that the Massachusetts District Attorney’s Office could represent him).  Simply put, he should not have been there.   He never should have been playing with the fire of a civil contempt hearing.  The point is that you do not let your friend or loved one enter a civil contempt hearing after they have not paid and risk ending up getting jailed over a $508.27 debt.  Why wasn't this avoided?  Where were the friends and family?  Where were they at the hearing?  Why was the debt not paid for him?  Why, at the least, was he not armed with the correct legal argument by someone with that knowledge?

  

It is easy to rest the responsibility on Judge Murphy (and the rest of the government) and his legal mistake makes a good headline for the Boston Globe, but Mr. Okaroafar, those close to him, and the entire private sector have some responsibility here.  All of us, especially those wanting to point blame on some government official, should take some of the responsibility for the unfortunate result of what happened to Mr. Okaroafar on 11 June 2014.