Employees and Attorney Client Privilege

Attorney Client Privilege, Florida Criminal Defense Attorney, Tampa criminal defense attorney, White Collar,
What Happens When the Boss Hires Your Lawyer?

What Happens When the Boss Hires Your Lawyer?

Sometimes a corporation will hire a lawyer for an employee, officer of the corporation, or a board member. Historically, the corporation or your boss might have been motivated to save the company or himself by disclosing or trying to force disclosure of information that had been shared with corporate attorneys, attorneys representing employees or officers of the corporation that may have been protected by the attorney client privilege. The feds used to have a policy that considered companies as “not cooperating” if they paid attorney fees for employees or failed to share attorney-client work product and confidences with prosecutors. Lack of cooperation can add or subtract from a sentence or penalty in the event of a conviction.
The Department of Justice DOJ has discontinued a policy that may have encouraged the company to sell out its employees. The DOJ guidelines are intended to protect a company’s attorney-client privilege, work product, and employees’ right to counsel. Therefore, assuming the information shared with the lawyer was privileged, the company will not be penalized in plea negotiations or sentencing for helping protect the rights of its officers or employees.

Can the Boss Force a Lawyer to Discuss Attorney Client Privileged Information with the Cops?

No. Your boss cannot force a lawyer to discuss Attorney Client Privileged Information with the cops. Here is a summary of the Department of Justice DOJ Policy on Attorney Client Privilege
  • Credit for cooperation will depend on the disclosure of relevant facts, not on the corporation’s waiver of attorney-client privileges;
  • A corporation’s payment of attorneys’ fees for employees is not a factor in determining cooperation;
  • A corporation’s participation in a joint defense agreement with employees does not preclude credit for cooperation;
  • Whether the corporation has sanctioned or retained culpable employees is not a factor in determining credit for cooperation;

Can Your Lawyer Discuss Attorney Client Information with the Cops, if You are Fired?

No. “Yet the privilege’s many nuances easily result in loss of the privilege when the attorney does not pay close attention to the details of the communication.” See Link to American Bar Business Law Review of the Attorney Client Privilege below.  Historically, it has been the DOJ’s policy to give credit to a corporation in exchange for its cooperation, but what exactly a corporation must do to earn such credit? According to Deputy Attorney General Mark Filip, the new guidelines reflect the DOJ’s “commitment to two goals: safeguarding the attorney-client privilege and preserving the DOJ’s ability to investigate corporate wrongdoing effectively.”
Important Note: The guidelines do not apply to investigations by other federal agencies such as the Securities and Exchange Commission and the Environmental Protection Agency.

Attorney Client Privilege, Florida Criminal Defense Attorney, Tampa criminal defense attorney, White Collar,
Target Letter

What Happens When the Boss gets a Target Letter?

Your boss gets a letter that begins like this. Dear Target: This letter is to advise you that you are now a target of a Federal Grand Jury investigation in this District involving your activities . . . . you can review a sample target letter here. A letter like this should be taken very seriously.

Tampa Federal Defense Attorney – Sample Target Letter

See also: 
DOJ revises how it deals with corporate probes
Maintaining the Privilege: A Refresher on Important Aspects of the Attorney-Client Privilege

911 Recorded Call Violates Florida Wiretap Statute

Wiretap 934.03(2)(g)2

Florida Criminal Defense Attorney notes that a call from a 911  dispatcher TO a crime scene violated the Florida Wiretap Statute “section 934.03(2)(g)2, which the court broadly construed to allow an emergency agency to intercept and record  any  wire communication in order to acquire necessary information to render aid and assistance.” Complete Opinion Follows:

Case Excerpts:
“On January 17, 2010, a dispatcher with the Escambia County Sheriff’s Office, received a 911 call from a woman reporting a disturbance occurring at her daughter’s house next door.  The woman gave the dispatcher the telephone number for that residence, and the dispatcher called the number to see if anyone there needed police assistance.  After the line was answered, the dispatcher heard screaming and yelling in the background.  No one said anything on the line; the line was simply open, and the dispatcher could hear a male threaten to shoot everyone in the house and himself.  This call was recorded.”
“Section 934.03 prohibits the intentional interception and disclosure of wire, oral, or electronic communications without the parties’ consent or court authorization.  However, an employee of an agency operating an emergency 911 system may lawfully intercept and record incoming wire communications on designated “911” telephone numbers and published nonemergency telephone numbers staffed by trained dispatchers at public safety answering points only.  It is also lawful for such employee to intercept and record outgoing wire communications to the numbers from which such incoming wire communications were placed when necessary to obtain information required to provide the emergency services being requested.”
§ 934.03(2)(g)2, Fla. Stat. (2009) (emphasis added)
“[T]he trial court erred in denying his motion to suppress an audio recording made by a 911 dispatcher . . . .”
911 Call in Your Case? Call 813-222-2220

Junk Science and Federal Criminal Defense

Florida Federal Criminal Defense Attorney, W.F. ”Casey” Ebsary, Jr. just returned from a great seminar on fighting the admissibility of Junk Science in federal criminal cases.
To attack Junk Scientific Evidence, one must look beyond the practitioners of the field itself. State of Maryland v. Bryan Rose, K06-0545 (Cir. Balt. Co. 2008) (“general acceptance of latent print identification by its practitioners does not constitute general acceptance by the ‘scientific community’ . . .”); United States v. Saelee, 162 F.Supp.2d 1097 (“Finally, the evidence does indicate that there is general acceptance of the theories and techniques involved in the field of handwriting analysis among the closed universe of forensic document examiners. This proves nothing.”). In most cases, the Government has not and will not be able to produce anyone beyond law enforcement technicians.
The seminar is available for free here: Junk Science in Federal Courts
Thanks to Attorney Frank Godbold.

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