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Sunday, July 26, 2015

Did Cosby's Lawyer blow the Attorney-Client Privilege?

Monique Pressley, a Public Defender Service alum, among other distinguished credentials, is one of Bill Cosby's new lawyers.  In an appearance on CNN, she explained that, on the one hand, "I'm not going to reveal client confidences. I'm counsel for Mr. Cosby and anything that he says to me is said in confidence."  But in the next breath she explained: "when his attorneys speak we are speaking for him. So when we speak and say that he denies all of the allegations and accusations then that is the statement of Bill Cosby."  I wonder if she might have blown the attorney-client privilege with that sort of statement. 

Many courts hold that "[t]he attorney-client privilege does not apply to communications that are intended to be disclosed to third parties or that in fact are so disclosed. It has been held that the disclosure of any meaningful part of a purportedly privileged communication waives the privilege as to the whole."  United States v. Rockwell Int'l, 897 F.2d 1255, 1265 (3d Cir. 1990).  If a statement "was intended for public relations purposes rather than legal purposes" it "is not privileged." Burton v. R.J. Reynolds Tobacco Co., 200 F.R.D. 661, 677 (D. Kan. 2001).  I have no doubt that an attorney legal review of client information to be sent to a public relations firm could well be privileged.  But if, as apparently happened here, a client engages attorneys to directly perform public relations rather than legal functions--or in any event to be a media representative--the client's statements to them are not privileged.  So, Ms. Pressley, do tell--what else did Mr. Cosby say?

UPDATE:  Thanks for the comments.   I agree with BDG and others that a lawyer trying a case speaking to the press, even about client testimony, would not operate as a waiver.  What I consider critical is that Ms. Pressley was apparently performing "public relations rather than legal functions," which I believe to be true based on the following. 

As of July 27, the two cases in ED Pa on PACER involving a William H. Cosby Jr., Green v. Cosby, 2:15-mc-00144-JP and Constand v. Cosby, 2:05-cv-01099-ER, reflect neither a notice of appearance nor a motion for pro hac vice admission of Ms. Pressley.  Green v. Cosby is related to two D. Mass. cases.  Ms. Pressley does not appear on the counsel list for either case.  She is not listed as counsel in Huth v. Cosby in the California Court of Appeals or Supreme Court.  Cosby's lawyers filed a major motion on July 21 in Constand v. Cosby; Ms. Pressley's name was not on it.   

Based on her non-involvement in the actual litigation of the cases, I take her precisely at her word when she was quoted as saying: "'My primary focus is to try to ensure that the reporting by the media is paying attention to the facts' in Cosby's latest legal filings, Pressley told USA Today this week."  That is, her job is to shape the media coverage, not to deal with the litigation as such.  Accordingly, there is strong authority that her work is not privileged:

Case law makes clear that “[a] media campaign is not a litigation strategy.” Haugh v. Schroder Inv. Mgmt. N. Am. Inc., 2003 WL 21998674, at *3 (S.D.N.Y. Aug. 25, 2003) (“Some attorneys may feel it is desirable at times to conduct a media campaign, but that does not transform their coordination of a campaign into legal advice.”). Thus, to the extent BGR was performing public relations functions, its participation in attorney-client communications resulted in a waiver—even if those functions were related to the various litigations in which Egiazaryan was embroiled.

Egiazaryan v. Zalmayev, 290 F.R.D. 421, 431 (S.D.N.Y. 2013).

his efforts have been concentrated heavily in media and public relations, lobbying, and political activism. But communications, even between lawyer and client, are not privileged unless they are made for the purpose of rendering legal advice or, to use another formulation, unless they relate to the rendition of “professional legal services.”

In re Chevron Corp., 749 F. Supp. 2d 141, 165 (S.D.N.Y.), aff'd sub nom. Lago Agrio Plaintiffs v. Chevron Corp., 409 F. App'x 393 (2d Cir. 2010).

JPMA asserts the privilege with respect to advice regarding lobbying, public relations, dealing with the media, and other non-privileged matters. Advice on these topics is not privileged, even if the advice comes from an attorney.

In re Bisphenol-A (BPA) Polycarbonate Plastic Products Liab. Litig., No. 08-1967-MD-W-ODS, 2011 WL 1136440, at *3 (W.D. Mo. Mar. 25, 2011).  As Mark Lamont Hill, Morehouse Professor of African American Studies, explained, she was hired to create credibility as a spokesperson.  Talking to the press about a case might well be a J.D.-preferred position, but certainly one does not have to be admitted to the bar to do it.  I mean, she's a minister, too, but her managing a media campaign is not covered by the clergy privilege.

Her hiring is ironic, because Ms. Pressley's twitter feed  contains an exchange which seems to support the victims.  On July 12, perhaps before she became involved in the case, she responded to a tweet asking: "If you could say one encouraging thing to a bullied victim, what would it be?" She answered: "Silence is not your friend.  Seek a safe space and speak up NOW.  There is strength in numbers."  I quite agree; I have not heard a theory on how the dozens of women could be lying.

Posted by Jack Chin on July 26, 2015 at 11:09 AM | Permalink

Comments

The update helps quite a bit in fleshing out the argument. The post may still be a bit overstated, but given that it’s a blog post, it certainly raises an important issue in a useful way. I’d again recommend DeStefano’s three articles for more in-depth treatment, especially the article about lawyers working with consultants (including PR consultants). It might be worth noting that (1) ACP is not limited to attorneys who have made general appearances in particular litigations; (2) some (but not all) of the cases cited in the update deal with discovery directly from PR firms and none of the cases cited in the update is squarely on point in terms of facts; (3) where ACP is not available, work product protection may be (as was true in the Haugh case); and (4) there’s an important issue about the scope of any purported waiver. Lots of judges frown up discovery directed at opposing lawyers (and there is appellate authority supporting that attitude), and I imagine that many would quickly rule that the attorney’s statement, “Cosby denies,” simply reflects something the parties knew when Cosby first filed his answer, and would not find the waiver to be broader than that.

All that being said, the issue of how to apply ACP and the ethics rules when cases are tried in the press in innovative ways is an important one, given the omnipresence of social media. Think about how George Zimmerman's lawyer created a website in anticipation of the homicide trial. I applauded that idea, despite some of the dangers it posed.

Posted by: John Steele | Jul 28, 2015 2:45:46 PM

Jack, I think you're right to press this issue, recognizing (as other commenters seemingly didn't) that it was intended as provocation, not bar review. Not to say I'd land the same place you did (Disclaimer: I was a federal prosecutor), but surely you're right that if client A directs attorney B to tell the public "I tried on the glove, and it didn't fit," client A no longer has an expectation of privacy as to that statement. The tricky part is parsing what Pressley said, and whether it fits that simple case. Is she saying, "Bill told me to tell you he didn't commit any of the alleged acts"? Or is she saying, "As Bill's counsel, I am authorized to state that our official defense-team position it that he's not guilty." Is it a statement of fact, or a preview of a legal position the team will take?

Also, of course, defense counsel routinely make these kinds of statements in cases with any publicity. I think it's fair, and interesting, to ask whether these statements ought to be subject to scrutiny for whether they waive any privilege, or at least more scrutiny than we usually give them. Perhaps one's normative views about whether it is desirable for counsel to try a case via the media could inform that scrutiny. But I think in the ordinary course of events, defense counsel inevitably almost have to say something like this, and if that were taken as waiving the privilege we'd be chilling an awful lot of defense-counsel communication.

Posted by: BDG | Jul 27, 2015 4:44:40 PM

This post is a joke, right?

If not, please keep Professor Chin away from students about to take the MPRE!

Posted by: Gloober | Jul 27, 2015 12:29:26 PM

"Isn't she just saying that she speaks on Cosby's behalf? That's just what it means to be someone's attorney."

"I'm counsel" is a better judge for me. Any number of people can speak on a person's behalf.

Posted by: Joe | Jul 27, 2015 10:25:51 AM

The rationale of the post might need to be fleshed out a little. Btw, if you are interested in the intersection of PR (public relations) and PR (professional responsibility), you might visit the SSRN page for Michele Beardslee DeStefano, who did a lot of research about how that plays out for corporate clients and then published a few articles about it.

Posted by: John Steele | Jul 27, 2015 10:21:21 AM

This posting is incorrect. There is no waiver here.

Posted by: Jojo | Jul 27, 2015 6:59:14 AM

I don't see how that is a waiver of privilege. Attorneys speak for clients all the time. A court filing is just another statement of a client that is made by an attorney. I don't see any difference, privilege-wise, between an attorney saying in to a judge, "Mr. Cosby denies plaintiff's allegations" and an attorney saying so the press. A judge is a third party just as much as a reporter.

Posted by: TJ | Jul 27, 2015 2:07:54 AM

You cannot be serious. The very next sentence is: "When you look at the recent filings, just as recently as two days ago in another case in Pennsylvania, those are the statements of Mr. Cosby." All she said was (effectively -- and in direct response to the interviewer's question) that she and Cosby's other attorneys speak for him, in court filings they have denied the allegations against him, and therefore he has denied the allegations against him.

Posted by: MattW | Jul 26, 2015 10:18:29 PM

Isn't she just saying that she speaks on Cosby's behalf? That's just what it means to be someone's attorney.

Posted by: Bruce Boyden | Jul 26, 2015 10:10:49 PM

No

Posted by: Huxtable | Jul 26, 2015 9:16:12 PM

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