WFTV - STRICKLAND filed complaint against Baez!

[Chezhire]

Remember when thinking about whether or not someone other than JBaez asked DCasey to "go get Caylee" or to "bring her home," seems to me that the only way that Cindy, George, Lee, or anyone else, for that matter, could "persuade" DCasey to do so is if he's already violated the privilege by letting a 3rd party know that he even knows where she is/might be/etc. :waitasec:

 

[Hell's Belle]

Remember when thinking about whether or not someone other than JBaez asked DCasey to "go get Caylee" or to "bring her home," seems to me that the only way that Cindy, George, Lee, or anyone else, for that matter, could "persuade" DCasey to do so is if he's already violated the privilege by letting a 3rd party know that he even knows where she is/might be/etc. :waitasec:

I think that DCasey "breached a duty of confidentiality" rather than "violated the privilege." I'm not trying to quibble. I think the analysis is easier when these distinctions are made, particularly on the possible waiver issues.

 

[Marina2]

Remember when thinking about whether or not someone other than JBaez asked DCasey to "go get Caylee" or to "bring her home," seems to me that the only way that Cindy, George, Lee, or anyone else, for that matter, could "persuade" DCasey to do so is if he's already violated the privilege by letting a 3rd party know that he even knows where she is/might be/etc. :waitasec:

Ahh...that simplifies a lot! Thanks.

 

[Chezhire]

I think that DCasey "breached a duty of confidentiality" rather than "violated the privilege." I'm not trying to quibble. I think the analysis is easier when these distinctions are made, particularly on the possible waiver issues.

I feel the distinctions are very important, for obvious reasons, such as writing about them in motions, memoranda, etc.

The privilege is between DCasey and the lead attorney working for Casey, and it's called the attorney work product privilege. It is the attorney work product privilege that allows JBaez to speak freely with DCasey and without fear of a disclosure adverse to his client. In LA, if the PI gives the information he received from the attorney to a 3rd party, it's called a violation of the attorney work product privilege.

Perhaps this will help you to understand the verbiage that is appropriate:

SNIPPED: "... plaintiffs' motion for the Rainwater Statement was untimely and in violation of the work product privilege when its failure to amend the substance of its answers to interrogatory number 11 misled the plaintiffs and the trial court...."
See Masters v. Courtesy Ford Co., Inc., 758 So.2d 171, La.App. 2 Cir.,1999.

and yet another:

SNIPPED: "...witness could properly be required to answer, in a pretrial discovery deposition, all questions of fact in regard to his appraisal of property and method and manner used in making the appraisal and such order could not be construed as a violation of the work product statute ..."
See State Through Dept. of Highways v. Riverside Realty Co., 152 So.2d 345, La.App. 1963.

 

[Themis]

Some have stated that JB and his agent, DC didn't have any duty to report an unfound, unclaimed dead body and that he had a duty to keep the attorney-client confidentiality. Not true. If there is a state statute that requires a person finding a dead body to report it, it must be reported. The report does not have to say how the body was found, but just that it was found. Not reporting the same is a professional ethics violation. Telling a private investigator under an attorney's hire to violate the reporting laws is also a violation of professional responsibility rules; an ethics violation. So, does Florida have such a statute requiring reporting of finding a dead body? Indeed it does.



The 2008 Florida Statutes

Title XXIX
PUBLIC HEALTHChapter 406
MEDICAL EXAMINERS; DISPOSITION OF DEAD BODIESView Entire Chapter
[SIZE=-1]406.50 Unclaimed dead bodies or human remains; disposition, procedure.--All public officers, agents, or employees of every county, city, village, town, or municipality and every person in charge of any prison, morgue, hospital, funeral parlor, or mortuary and all other persons coming into possession, charge, or control of any dead human body or remains which are unclaimed or which are required to be buried or cremated at public expense are hereby required to notify, immediately, the anatomical board, whenever any such body, bodies, or remains come into its possession, charge, or control. Notification of the anatomical board is not required if the death was caused by crushing injury, the deceased had a contagious disease, an autopsy was required to determine cause of death, the body was in a state of severe decomposition, or a family member objects to use of the body for medical education and research. [/SIZE]
[SIZE=-1](1) The person or entity in charge or control of the dead body or human remains shall make a reasonable effort to determine: [/SIZE]
[SIZE=-1](a) The identity of the deceased person and shall further make a reasonable effort to contact any relatives of such deceased person. [/SIZE]
[SIZE=-1](b) Whether or not the deceased person is entitled to burial in a national cemetery as a veteran of the armed forces and, if so, shall make arrangements for such burial services in accordance with the provisions of 38 C.F.R. For purposes of this subsection, "a reasonable effort" includes contacting the county veterans service office or regional office of the United States Department of Veterans Affairs. [/SIZE]
[SIZE=-1](2) Such dead human bodies as described in this chapter shall be delivered to the anatomical board as soon as possible after death. [/SIZE]
[SIZE=-1](3) Nothing herein shall affect the right of a medical examiner to hold such dead body or remains for the purpose of investigating the cause of death, nor shall this chapter affect the right of any court of competent jurisdiction to enter an order affecting the disposition of such body or remains. [/SIZE]
[SIZE=-1](4) In the event more than one legally authorized person claims a body for interment, the requests shall be prioritized in accordance with s. 732.103. [/SIZE]


[SIZE=-1]For purposes of this chapter, the term "anatomical board" means the anatomical board of this state located at the University of Florida Health Science Center, and the term "unclaimed" means a dead body or human remains that is not claimed by a legally authorized person, as defined in s. 497.005, for interment at that person's expense. History.--s. 6, ch. 28163, 1953; ss. 15, 35, ch. 69-106; s. 22, ch. 73-334; s. 1, ch. 91-168; s. 1, ch. 96-251; s. 1, ch. 2002-204; s. 141, ch. 2004-301. Note.--Former s. 245.06. [/SIZE]

http://www.flsenate.gov/statutes/in...earch_String="dead+body"&URL=CH0406/Sec50.HTM

 

[spqr]

Chezhire,

:clap:


Weeelllll...that little ole afidavit Casey recently signed under oath DOES come to mind...
Perjury, anyone?!?!?!

I have a legal question for you...on the affidavit that JB filed, where Casey added her own paragraph in her own writing and then signed...does that in affect negate her right to remain silent? By that staement, she has in effect chose not to remain silent and is basically "testifying" without taking the stand. TIA.

 

[Chezhire]

SNIPPED: "Some have stated that JB and his agent, DC didn't have any duty to report an unfound, unclaimed dead body and that he had a duty to keep the attorney-client confidentiality. Not true. If there is a state statute that requires a person finding a dead body to report it, it must be reported. The report does not have to say how the body was found, but just that it was found. Not reporting the same is a professional ethics violation. Telling a private investigator under an attorney's hire to violate the reporting laws is also a violation of professional responsibility rules; an ethics violation. So, does Florida have such a statute requiring reporting of finding a dead body? Indeed it does...."

Brilliant, simply brilliant. I've never thought of using this myself...
You ought to call the SA - bet they'd be ever so pleased! I know I would if I were them!
:gold_crown:

:saythat:

 

[Crabcake23]

There's 14 pages in this thread, too much to catch up on. Can someone tell me in a nutshell what's going on?

 

[Hell's Belle]

I feel the distinctions are very important, for obvious reasons, such as writing about them in motions, memoranda, etc.

The privilege is between DCasey and the lead attorney working for Casey, and it's called the attorney work product privilege. It is the attorney work product privilege that allows JBaez to speak freely with DCasey and without fear of a disclosure adverse to his client. In LA, if the PI gives the information he received from the attorney to a 3rd party, it's called a violation of the attorney work product privilege.

Perhaps this will help you to understand the verbiage that is appropriate:

SNIPPED: "... plaintiffs' motion for the Rainwater Statement was untimely and in violation of the work product privilege when its failure to amend the substance of its answers to interrogatory number 11 misled the plaintiffs and the trial court...."
See Masters v. Courtesy Ford Co., Inc., 758 So.2d 171, La.App. 2 Cir.,1999.

and yet another:

SNIPPED: "...witness could properly be required to answer, in a pretrial discovery deposition, all questions of fact in regard to his appraisal of property and method and manner used in making the appraisal and such order could not be construed as a violation of the work product statute ..."
See State Through Dept. of Highways v. Riverside Realty Co., 152 So.2d 345, La.App. 1963.

The cites show me only what verbiage is used in Louisiana. Regardless of what verbiage is used in a 1963 case from Louisiana, analytically the work product doctrine does not function in the same way that the attorney-client privilege does and waiver issues are analyzed differently.

 

[Chezhire]

The cites show me only what verbiage is used in Louisiana. Regardless of what verbiage is used in a 1963 case from Louisiana, analytically the work product doctrine does not function in the same way that the attorney-client privilege does and waiver issues are analyzed differently.

Sorry, wasn't avoiding your post, as I'd already looked at FL, but I was busy
congratulating our esteemed poster, Themis, for her ever-so-brilliant post!

Anyhoo, here ya go:

SNIPPED: "... Because the trial court's orders would result in a violation of the work product and the attorney-client privilege, they depart from the essential requirements of the law and would result in irreparable harm, appropriately reviewable by certiorari jurisdiction. Once disclosed, the privileges are lost and no subsequent relief can be provided by appeal...."
See Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148, Fla.App. 3 Dist.,2008.
Westlaw link: http://web2.westlaw.com/result/defa..._SSSA684885321294&cfid=1&rlti=1&eq=Welcome/53

The verbiage above is the judge's HOLDING, discussing violations of both the work product privilege, which IS what I've been discussing in this thread, and the attorney client privilege, so it doesn't get any clearer than that.

 

[ThoughtElf]

Brilliant, simply brilliant. I've never thought of using this myself...
You ought to call the SA - bet they'd be ever so pleased! I know I would if I were them!
:gold_crown:

:saythat:

Could this be a statute that Judge Strickland might already have cited in his complaint? In support of misconduct/ethical investigation?

 

[Chezhire]

Could this be a statute that Judge Strickland might already have cited in his complaint? In support of misconduct/ethical investigation?

T? Do ya think it could be?
I'm convinced it could be a basis for a complaint for a violation of a FL law...

LOVELOVELOVE Themis' legal analysis on this thread tody!!!!!
:woohoo:

 

[Hell's Belle]

Sorry, wasn't avoiding your post, as I'd already looked at FL, but I was busy congratulating our esteemed poster, Themis, for her ever-so-brilliant post!

Anyhoo, here ya go:

SNIPPED: "... Because the trial court's orders would result in a violation of the work product and the attorney-client privilege
, they depart from the essential requirements of the law and would result in irreparable harm, appropriately reviewable by certiorari jurisdiction. Once disclosed, the privileges are lost and no subsequent relief can be provided by appeal...."
See Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148, Fla.App. 3 Dist.,2008.
Westlaw link: http://web2.westlaw.com/result/defa..._SSSA684885321294&cfid=1&rlti=1&eq=Welcome/53
The verbiage above is the judge's HOLDING, discussing volations of both the work product privilege, which IS what I've been discussing in this thread, and the attorney client privilege, so it doesn't get any clearer than that.

It's possible for a fact pattern to give rise to a finding that both have been violated, but that doesn't mean that both always would be. Here is a 3/27/2009 Florida appellate case: http://74.125.95.132/search?q=cache...ida&cd=4&hl=en&ct=clnk&gl=us&client=firefox-a

There are essential distinctions between an immunity from discovery based on the work product doctrine and the attorney-client privilege. First, they have different sources * * * The principles governing application of the attorney-client privilege and work product immunity and exceptions to their application – differ.

Does it get any clearer than that? I actually think this has been mooted by the fact that there is a Florida statute on point regarding reporting the discovery of a dead body, so the point that I have been attempting to make about the waiver analysis being different for work product immunity from discovery differing from attorney-client privilege is no longer much at play.

 

[Chezhire]

SNIPPED: "... Does it get any clearer than that? the point that I have been attempting to make about the waiver analysis being different for work product immunity from discovery differing from attorney-client privilege is no longer much at play...."

I never said there weren't differences, nor have I said that "something" could not violate both.
To the contrary, my posts on this thread make that pretty crystalline.
I have, for example, said the following re: the distinctions betwen the 2 privileges:

See my post, clarified, above. I think we agree that if Casey tells JBaez X, then X is protected by attorney-client privilege.

IF JBaez goes on to tell X to the PI he's hired to help him investigate the case, THAT communication is not protected by the attorney client privilege, it's protected by the attorney work product privilege, the purpose of which is to allow an attorney a sphere of protected space within which to work without fear of disclosure adverse to his client.

However, since the above post gets off track from what our posts have been discussing TODAY, which was my proper usage of the phrase "violated the privilege," to recap, I posted the following today:

Remember when thinking about whether or not someone other than JBaez asked DCasey to "go get Caylee" or to "bring her home," seems to me that the only way that Cindy, George, Lee, or anyone else, for that matter, could "persuade" DCasey to do so is if he's already violated the privilege by letting a 3rd party know that he even knows where she is/might be/etc. :waitasec:

Whereupon you quoted my post above and attempted to correct my verbiage:

I think that DCasey "breached a duty of confidentiality" rather than "violated the privilege." I'm not trying to quibble. I think the analysis is easier when these distinctions are made, particularly on the possible waiver issues.

Now that I've provided this thread with FL case citations reflecting that it is a violation of the attorney work product privilege (or a violation of the attorney client privilege, should one care to discuss same) I think that about covers this dialogue.

 

[TheCynic]

Some have stated that JB and his agent, DC didn't have any duty to report an unfound, unclaimed dead body and that he had a duty to keep the attorney-client confidentiality. Not true. If there is a state statute that requires a person finding a dead body to report it, it must be reported. The report does not have to say how the body was found, but just that it was found. Not reporting the same is a professional ethics violation. Telling a private investigator under an attorney's hire to violate the reporting laws is also a violation of professional responsibility rules; an ethics violation. So, does Florida have such a statute requiring reporting of finding a dead body? Indeed it does.



The 2008 Florida Statutes

Title XXIX
PUBLIC HEALTHChapter 406
MEDICAL EXAMINERS; DISPOSITION OF DEAD BODIESView Entire Chapter
[SIZE=-1]406.50 Unclaimed dead bodies or human remains; disposition, procedure.--All public officers, agents, or employees of every county, city, village, town, or municipality and every person in charge of any prison, morgue, hospital, funeral parlor, or mortuary and all other persons coming into possession, charge, or control of any dead human body or remains which are unclaimed or which are required to be buried or cremated at public expense are hereby required to notify, immediately, the anatomical board, whenever any such body, bodies, or remains come into its possession, charge, or control. Notification of the anatomical board is not required if the death was caused by crushing injury, the deceased had a contagious disease, an autopsy was required to determine cause of death, the body was in a state of severe decomposition, or a family member objects to use of the body for medical education and research. [/SIZE]
[SIZE=-1](1) The person or entity in charge or control of the dead body or human remains shall make a reasonable effort to determine: [/SIZE]
[SIZE=-1](a) The identity of the deceased person and shall further make a reasonable effort to contact any relatives of such deceased person. [/SIZE]
[SIZE=-1](b) Whether or not the deceased person is entitled to burial in a national cemetery as a veteran of the armed forces and, if so, shall make arrangements for such burial services in accordance with the provisions of 38 C.F.R. For purposes of this subsection, "a reasonable effort" includes contacting the county veterans service office or regional office of the United States Department of Veterans Affairs. [/SIZE]
[SIZE=-1](2) Such dead human bodies as described in this chapter shall be delivered to the anatomical board as soon as possible after death. [/SIZE]
[SIZE=-1](3) Nothing herein shall affect the right of a medical examiner to hold such dead body or remains for the purpose of investigating the cause of death, nor shall this chapter affect the right of any court of competent jurisdiction to enter an order affecting the disposition of such body or remains. [/SIZE]
[SIZE=-1](4) In the event more than one legally authorized person claims a body for interment, the requests shall be prioritized in accordance with s. 732.103. [/SIZE]


[SIZE=-1]For purposes of this chapter, the term "anatomical board" means the anatomical board of this state located at the University of Florida Health Science Center, and the term "unclaimed" means a dead body or human remains that is not claimed by a legally authorized person, as defined in s. 497.005, for interment at that person's expense. History.--s. 6, ch. 28163, 1953; ss. 15, 35, ch. 69-106; s. 22, ch. 73-334; s. 1, ch. 91-168; s. 1, ch. 96-251; s. 1, ch. 2002-204; s. 141, ch. 2004-301. Note.--Former s. 245.06. [/SIZE]

http://www.flsenate.gov/statutes/in...earch_String="dead+body"&URL=CH0406/Sec50.HTM

With all due respect, I'm not sure discovery of a body would at all be considered coming into 'possession, charge or control.' It doesn't appear to me that's the intent of this law. It appears to be aimed at those involved in the handling of human remains.

 

[Chezhire]

With all due respect, I'm not sure discovery of a body would at all be considered coming into 'possession, charge or control.' It doesn't appear to me that's the intent of this law. It appears to be aimed at those involved in the handling of human remains.

Case law in some states reflects that the knowledge would be a violation.
I'm checking FL now, as I'm sure Themis alredy has...but I don't see her...

 

[Hell's Belle]

Now that I've provided this thread with FL case citations reflecting that it is a violation of the attorney work product privilege (or a violation of the attorney client privilege, should one care to discuss same) I think that about covers this dialogue.

If by "it" you mean that it is acceptable usage in Florida to use the phrase "violation of the the attorney work product privilege," I agree (though it is also acceptable usage to talk about work product immunity from discovery). We still have no idea what DCasey actually DID.

 

[Themis]

Here's another one that makes it a misdemeanor.

406.12 Duty to report; prohibited acts.--It is the duty of any person in the district where a death occurs, including all municipalities and unincorporated and federal areas, who becomes aware of the death of any person occurring under the circumstances described in s. 406.11 to report such death and circumstances forthwith to the district medical examiner. Any person who knowingly fails or refuses to report such death and circumstances, who refuses to make available prior medical or other information pertinent to the death investigation, or who, without an order from the office of the district medical examiner, willfully touches, removes, or disturbs the body, clothing, or any article upon or near the body, with the intent to alter the evidence or circumstances surrounding the death, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0406/ch0406.htm

 

[Themis]

Here's 406.11 describing the circumstances.

406.11 Examinations, investigations, and autopsies.--
(1) In any of the following circumstances involving the death of a human being, the medical examiner of the district in which the death occurred or the body was found shall determine the cause of death and shall, for that purpose, make or have performed such examinations, investigations, and autopsies as he or she shall deem necessary or as shall be requested by the state attorney:
(a) When any person dies in the state:
1. Of criminal violence.
2. By accident.
3. By suicide.
4. Suddenly, when in apparent good health.
5. Unattended by a practicing physician or other recognized practitioner.
6. In any prison or penal institution.
7. In police custody.
8. In any suspicious or unusual circumstance.
9. By criminal abortion.
10. By poison.
11. By disease constituting a threat to public health.
12. By disease, injury, or toxic agent resulting from employment.
(b) When a dead body is brought into the state without proper medical certification.
(c) When a body is to be cremated, dissected, or buried at sea.
(2)(a) The district medical examiner shall have the authority in any case coming under subsection (1) to perform, or have performed, whatever autopsies or laboratory examinations he or she deems necessary and in the public interest to determine the identification of or cause or manner of death of the deceased or to obtain evidence necessary for forensic examination.
(b) The Medical Examiners Commission shall adopt rules, pursuant to chapter 120, providing for the notification of the next of kin that an investigation by the medical examiner's office is being conducted. A medical examiner may not retain or furnish any body part of the deceased for research or any other purpose which is not in conjunction with a determination of the identification of or cause or manner of death of the deceased or the presence of disease or which is not otherwise authorized by this chapter, part V of chapter 765, or chapter 873, without notification of and approval by the next of kin.
(3) The Medical Examiners Commission may adopt rules incorporating by reference parameters or guidelines of practice or standards of conduct relating to examinations, investigations, or autopsies performed by medical examiners. History.--s. 6, ch. 70-232; s. 26, ch. 73-334; s. 1, ch. 77-174; s. 1, ch. 87-166; s. 29, ch. 97-103; s. 3, ch. 98-253; s. 48, ch. 2006-1.
http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0406/ch0406.htm

 

[Chezhire]

If by "it" you mean that it is acceptable usage in Florida to use the phrase "violation of the the attorney work product privilege," I agree (though it is also acceptable usage to talk about work product immunity from discovery). We still have no idea what DCasey actually DID.

The sole purpose of my posts in exchange with you today were to ensure that others reading our exchanges understood that it is proper to say a violation of the attorney work product privilege (in FL, in LA, and, I might add, a lot of other jurisdictions in the US,) which you'd said was incorrect. Nothing more, nothing less.

I've already offered my opinions as to what I believe is in Judge Strickland's complaint. No need to rehash those.