Legal Questions for Our VERIFIED Lawyers #1

[rhornsby]

Whoops I think we have 2 crossing topics. I wasn't talking about the waiver of conflict of interest.

My question is, MN has now been accused of lying and is being forced to defend himself personally in open court regarding his motives, his integrity and such. At least part of the direct accusation comes from his prior client CA through direct communications with the defense lawyers. (JB included a direct e-mail to him from CA in his court filing).

Now my question is, isn't one of the few times that the sanctity of attorney client privilege gets broken or dissolved, when you as the attorney are forced to defend yourself in court from this sort of accusation by your client? Particularly when accused of lying or acting without integrity?

And once the privilege is dissolved, it's all dissolved. MN could then talk about or write about ANYTHING he witnessed while working for the A's?

I'm not looking to defend MN or speculate on the truth of the claims on any side. Just wondering if that very act of dragging CA's accusations against her lawyer into this and forcing him to answer them before the court, is enough to undo that privilege?

On a side note, how does the court and public now deal with issues of privilege with BC? Can he be called as a witness regarding this specific matter? The defense filing is outlining events that took place regarding him, and for which he is the direct witness? yet the event referenced was him generating work product and research for his client, who is not the defendant?

Am I wrong in thinking this is a mess any way you look at it?

faefrost a waiver to defend oneself is limited to the extent necessary to defend oneself against a specific claim, it does not act as a complete waiver to all confidential communications and authorize you to divulge confidential material to make a buck.

 

[rhornsby]

I believe faefrost was talking about a possible waiver of attorney-client privilege since CA makes accusations against her former attorney, Mark Nejame. You might need to back read to get the whole gist of where she got that.

I understood the question and my answer is the same. AZ's answer was correct as well. A waiver of a privilege is limited to the extent necessary to defend oneself, and it is not waived because private correspondence is made public.

But at the end of the day, I fault Mr. Conway for not asserting the Anthony's privilege and moving to block Mr. Nejame's representation of Equsearch. But then again, considering his landlord is Mark Nejame, he has a conflict of interest himself - which might explain why he has not done so.

 

[merker]

I was wondering if there was a confidentiality/privacy warning in MN email.

Wouldn't a lawyer have that as a footer on every email sent from them?

What if MN had one and JB or someone in the daisy chain removed it and then forwarded it to someone else?

(apologies for my lack of terminology and if they are repeat questions)

 

[nums24]

So did Baez violate this rule by forwarding the Nejame/Conway/Anthony emails to the press?


In order to maintain confidentiality under Rule 4-1.6(a), Florida lawyers must take reasonable steps to protect confidential information in all types of documents and information that leave the lawyers’ offices, including electronic documents and electronic communications with other lawyers and third parties.

Snipped from http://www.floridabar.org/tfb/tfbetopin.nsf/SearchView/ETHICS,+OPINION+06-2?opendocument

The duties of a lawyer when sending an electronic document to another lawyer and when receiving an electronic document from another lawyer are as follows:

(1) It is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications.

 

[beach]

I understood the question and my answer is the same. AZ's answer was correct as well. A waiver of a privilege is limited to the extent necessary to defend oneself, and it is not waived because private correspondence is made public.

But at the end of the day, I fault Mr. Conway for not asserting the Anthony's privilege and moving to block Mr. Nejame's representation of Equsearch. But then again, considering his landlord is Mark Nejame, he has a conflict of interest himself - which might explain why he has not done so.

First, Thanks...I studied your answer and the linked post after I posted that response to you and realized that it was I who had misunderstood your answer. :blushing:

In re. the bold - If there really is a conflict of interest regarding Nejame (and I am not convinced there is, but realize that relevant info may have come to light after the waiver was executed), then I agree with you. I had no clue that MN was Conway's landlord. It shouldn't be a conflict, but I totally see your point with that assertation.

Bottom line - Mark Nejame has done a LOT of work for a long time now representating TES, so.... I don't see how it would be fair for them to be victimized by ripping the counsel of their choice out from under them at this late date.

 

[LambChop]

First, Thanks...I studied your answer and the linked post after I posted that response to you and realized that it was I who had misunderstood your answer. :blushing:

In re. the bold - If there really is a conflict of interest regarding Nejame (and I am not convinced there is, but realize that relevant info may have come to light after the waiver was executed), then I agree with you. I had no clue that MN was Conway's landlord. It shouldn't be a conflict, but I totally see your point with that assertation.

Bottom line - Mark Nejame has done a LOT of work for a long time now representating TES, so.... I don't see how it would be fair for them to be victimized by ripping the counsel of their choice out from under them at this late date.

I always thought that was how the A's retained BC as their lawyer because MN probably recommended him. My guess is BC offered to represent them figuring he could control CA...... We're all entitled to make mistakes..... jmo

 

[AZlawyer]

Thanks, that answered my questions perfectly. It's defending charges of criminality or civil liability, and not simply defamation. (if I am reading you right?). He has to have more at risk then simply his good name.

re: BC I was wondering if the simple fact that the questions revolve around activities that occurred while he was doing specific work for his clients caused an issue? I mean yeah he can say "I was here and they let me look at the files" with no problem. But does he bump into an issue if they ask "well specifically which files did you look at?", "which ones did you mark for followup", "why"? etc. Would those types of questions be getting into the work product for his clients? Is there a line in there somewhere that he can't cross unless given leave by his clients?

Right, he can't reveal confidential info just to defend his reputation (again, unless Florida ethics rules are different from AZ's, but from rhornsby's response I would guess they are the same on that point).

Re: BC, there might be a problem with him answering the questions you posed, but I'm not sure why anyone would be asking him those questions.

I was wondering if there was a confidentiality/privacy warning in MN email.

Wouldn't a lawyer have that as a footer on every email sent from them?

What if MN had one and JB or someone in the daisy chain removed it and then forwarded it to someone else?

(apologies for my lack of terminology and if they are repeat questions)

I don't remember if he included such a warning, but the existence or non-existence of a "footer" wouldn't make any legal difference here. The privilege doesn't prevent the client (e.g., Cindy) from revealing the information to a third party (e.g., JB). Then, since the client would have waived the privilege by doing so, there would be nothing to prevent the third party from forwarding it again.

So did Baez violate this rule by forwarding the Nejame/Conway/Anthony emails to the press?


In order to maintain confidentiality under Rule 4-1.6(a), Florida lawyers must take reasonable steps to protect confidential information in all types of documents and information that leave the lawyers’ offices, including electronic documents and electronic communications with other lawyers and third parties.

Snipped from http://www.floridabar.org/tfb/tfbetopin.nsf/SearchView/ETHICS,+OPINION+06-2?opendocument

The duties of a lawyer when sending an electronic document to another lawyer and when receiving an electronic document from another lawyer are as follows:

(1) It is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications.

No. (1) If there was any confidential information in the emails as to Cindy, she waived her right to keep that information confidential by sending it to JB, and (2) this provision really relates to confidential information belonging to the lawyer's own client.

 

[nums24]

No. (1) If there was any confidential information in the emails as to Cindy, she waived her right to keep that information confidential by sending it to JB, and (2) this provision really relates to confidential information belonging to the lawyer's own client.

Thank you for your answer AZ. I guess my question wasn't clear enough. I was referring to Baez releasing the communication of the other attorneys, regardless if Cindy released it or not. What standing does he have to do that, to me that seems unethical.

 

[merker]

Right, he can't reveal confidential info just to defend his reputation (again, unless Florida ethics rules are different from AZ's, but from rhornsby's response I would guess they are the same on that point).

Re: BC, there might be a problem with him answering the questions you posed, but I'm not sure why anyone would be asking him those questions.




I don't remember if he included such a warning, but the existence or non-existence of a "footer" wouldn't make any legal difference here. The privilege doesn't prevent the client (e.g., Cindy) from revealing the information to a third party (e.g., JB). Then, since the client would have waived the privilege by doing so, there would be nothing to prevent the third party from forwarding it again.



No. (1) If there was any confidential information in the emails as to Cindy, she waived her right to keep that information confidential by sending it to JB, and (2) this provision really relates to confidential information belonging to the lawyer's own client.

Open mouth, sit at puter...shoot Urself...TY
That's what I thought
CA:banghead:

 

[AZlawyer]

Thank you for your answer AZ. I guess my question wasn't clear enough. I was referring to Baez releasing the communication of the other attorneys, regardless if Cindy released it or not. What standing does he have to do that, to me that seems unethical.

I can't think of any actual ethics rules it would break (but again I'm thinking of AZ ethics rules rather than FL ethics rules lol).

Maybe what you mean is not that it seems "unethical" but that it seems "sleazy." Which it does.

 

[ynotdivein]

I can't think of any actual ethics rules it would break (but again I'm thinking of AZ ethics rules rather than FL ethics rules lol).

Maybe what you mean is not that it seems "unethical" but that it seems "sleazy." Which it does.

Slightly OT but in re: the part RBBM above--I am half giggling at the idea that ethics rules would vary state to state, and half sad at same concept.

And here is my serious question for our (much appreciated) lawyers: how can legal "ethics" differ state to state?

I mean, it seems that several lawyers from different states may agree that some legal conduct or other would qualify as "sleazy" but how can the same conduct be deemed ethical in one state and unethical in another? What does the term "legally ethical" mean, exactly?

TIA and again, much appreciation for all the information you share so selflessly!

 

[rhornsby]

Bottom line - Mark Nejame has done a LOT of work for a long time now representating TES, so.... I don't see how it would be fair for them to be victimized by ripping the counsel of their choice out from under them at this late date.

Why? There are over 70,000 lawyers in Florida, and thousands of those live in Orlando. Of all the attorneys they asked to represent them, why approach the former attorney of the defendant's parents.

Tim Miller has dealt with plenty of lawyers before, he knew the risks - as did Nr, Nejame.

 

[faefrost]

I understood the question and my answer is the same. AZ's answer was correct as well. A waiver of a privilege is limited to the extent necessary to defend oneself, and it is not waived because private correspondence is made public.

But at the end of the day, I fault Mr. Conway for not asserting the Anthony's privilege and moving to block Mr. Nejame's representation of Equsearch. But then again, considering his landlord is Mark Nejame, he has a conflict of interest himself - which might explain why he has not done so.

Thanks.

As a follow-up regarding BC, is it unusual that he seems to permit the direct communications between CA and the defense? Including apparently him sharing his communications with him with JB? And does that pose any risks for his actual clients (such as the "incestuous child molester" bus headed GA's way right now)? In a nutshell, from a lawyers point of view does it seem odd or ineffective that he has not cut down on these sorts of communications, and insisted that they be limited to the defense giving the parents status reports only?

 

[AZlawyer]

Slightly OT but in re: the part RBBM above--I am half giggling at the idea that ethics rules would vary state to state, and half sad at same concept.

And here is my serious question for our (much appreciated) lawyers: how can legal "ethics" differ state to state?

I mean, it seems that several lawyers from different states may agree that some legal conduct or other would qualify as "sleazy" but how can the same conduct be deemed ethical in one state and unethical in another? What does the term "legally ethical" mean, exactly?

TIA and again, much appreciation for all the information you share so selflessly!

To clarify, I don't have any reason to think including MN's email as an attachment to that filing would be unethical (i.e., in violation of the rules of legal ethics) in ANY state--just sleazy IMO considering that there was no genuine point to be made by doing so.

Legal ethics are governed by sets of rules adopted by individual state courts (usually proposed by bar associations). They are very similar across most states at this point, but not identical. If you violate those standards, you might get censured, suspended, disbarred, etc.

Now, of course individual lawyers (or most of them anyway lol) do have their own personal ethical standards regarding the way they choose to practice law. But if you violate those standards, the Bar won't come after you.

Thanks.

As a follow-up regarding BC, is it unusual that he seems to permit the direct communications between CA and the defense? Including apparently him sharing his communications with him with JB? And does that pose any risks for his actual clients (such as the "incestuous child molester" bus headed GA's way right now)? In a nutshell, from a lawyers point of view does it seem odd or ineffective that he has not cut down on these sorts of communications, and insisted that they be limited to the defense giving the parents status reports only?

I think the word "permit" is tripping me up here. Let's keep in mind that there's no indication that BC has any kind of control over CA (or over JB for that matter).

Personally, if I were representing CA/GA, I would insist that JB route all communications through me, because I would be concerned that JB might be trying to steer the bus toward CA/GA/LA--and CA/GA/LA have not got the sense to get out of the way of the bus on their own.

BC also should have advised CA not to share their A/C privileged communications with any third party, including JB. But have we really seen any of BC/CA's communications in this case? Maybe just the comment "here's the email I sent MN" or whatever it was--I don't think that one is any big deal.

 

[ZsaZsa]

Why? There are over 70,000 lawyers in Florida, and thousands of those live in Orlando. Of all the attorneys they asked to represent them, why approach the former attorney of the defendant's parents.

Tim Miller has dealt with plenty of lawyers before, he knew the risks - as did Nr, Nejame.

Because Mr NeJame was willing to donate him time to them?
Perhaps because Mr NeJame expressed admiration for the work they do?
The TES organization depends on donations of all kinds to keep up it's good work..

 

[beach]

Why? There are over 70,000 lawyers in Florida, and thousands of those live in Orlando. Of all the attorneys they asked to represent them, why approach the former attorney of the defendant's parents.

Tim Miller has dealt with plenty of lawyers before, he knew the risks - as did Nr, Nejame.

Oh, Richard - one thing I respect about you is you make me work to support my argument! LOL

My answer to you would be "Why not?"

In support of my argument, I submit the following:


Exhibit 1: From the Jan. 20, 2009 hearing in which Judge Strickland presided -
[ame]http://www.youtube.com/watch?v=tUYPwHb7Hw4[/ame]

@ the 4:30 mark:

BC: "Just so my client's wishes are clear, they want to expedite the courts ability to rule on discovery issues and expedite the ability of the defense to receive discovery"....."They have instructed me to waive conflict regarding Mr. Nejame providing information and in regards. to Caylee’s minings of the remains out of compassion and concern not only for their daughter, but for them. So they have instructed me to waive conflict."

JS: "Having said that is there anything you want the Court to do? "

BC: "To rule expeditiously and correctly on any discovery."

(For the record, Brad Conways states no less than 3 times during the less than 2 minutes he spoke, that he was instructed by George & Cindy to waive conflict.)

I feel sure you have encountered clients that are ...er, difficult to control. :angel: Well, I imagine Cindy Anthony probably trumps them all. Something tells me that you would have responded much like Mark Nejame and withdrawn. So, we can blame Conway if you want, because I agree that he probably should have fought that point. However, I've got a hunch that he takes orders from clients more willingly than you or Mr. Nejame might.

Exhibit 2: Mark Nejames response to the press after the Jan. 20th hearing -
[ame]http://www.youtube.com/watch?v=rp-TNj55rls[/ame]

@ the 3:10 mark: (emphasis mine)

"For the life of me I cannot see where at one time having represented George and Cindy, that there is a conflict representing Texas Equusearch. Well, the goal for all was to find this child alive or not alive, so where would the conflict be? And the fact of the matter is Brad Conway stated on the record, very clearly, that if there was a conflict, it was waived, so there’s no issue."

Whew! (and I must give thanks and credit to TWA for locating those video clips, per my request)

That said, for the sake of argument, let’s just all fold and show our aces.
The issue began when the defense encountered so many problems with the SODDI theory when they couldn’t pin anything directly on Jesse Grund, Amy Huzienga, Kio Marie Cruz, Roy Kronk, etal (lost count of the etal). So, plan B (or is it C? D? …. X?) is to fight like hell to secure a permit to fish in that lake with 4,000 charitable volunteers. God bless the guy who has any prior record (especially of violence!), even if he traveled from Alaska. JB & CM would be popping the champagne corks thinking they just found their ‘Get Out of Jail Free’ card.

Know what? If something were to happen where Nejame were forced to withdraw (which I highly doubt), why don't you promise us here to agree to represent TES? I would LOVE to see you take on Baez!

 

[RR0004]

Why? There are over 70,000 lawyers in Florida, and thousands of those live in Orlando. Of all the attorneys they asked to represent them, why approach the former attorney of the defendant's parents.

Tim Miller has dealt with plenty of lawyers before, he knew the risks - as did Nr, Nejame.

...maybe they chose him because he was one of the good ones (yourself included, of course)?

 

[ExpectingUnicorns]

...maybe they chose him because he was one of the good ones (yourself included, of course)?

. . . and isn't MN representing them pro bono? That would certainly narrow the field of choice!

 

[rhornsby]

The statement I was presented was "I don't see how it would be fair for them [Texas Equsearch] to be victimized by ripping the counsel of their choice out from under them at this late date."

And I would suggest that this very conflict/waiver disagreement is exactly why it would be fair to deprive them of counsel. Any business person who has worked with lawyers before would have seen it coming a mile away - so Tim Miller may be a nice guy, but he doesn't get to use ignorance as a defense in my book.

More importantly, what the attorneys represent about the breadth of the waiver is not the issue, it is what the client represents that is the issue. And not one of your videos has CA or GA saying that they waive confidentiality or to what extent. If you recall, Judge Strickland fully questioned Casey Anthony on her waiver of financial conflict - he did not let Mr. Baez make the representations.

And to further the point, it is ironic that in the same time-frame Mr. Nejame is on TV saying there is no conflict, his former clients are emailing him that they feel their is a conflict and withdraw their consent to his involvement with TexasEqusearch.

The best example would be to imagine a lawyer representing a husband in a divorce. Then suddenly - in the middle of the divorce - the lawyer wants to represent the wife's brother in a "business deal." While there may or may not be an actual conflict, there is clearly a perceived conflict - which is exactly what a lawyer is ethically required to avoid.

 

[nums24]

The statement I was presented was "I don't see how it would be fair for them [Texas Equsearch] to be victimized by ripping the counsel of their choice out from under them at this late date."

And I would suggest that this very conflict/waiver disagreement is exactly why it would be fair to deprive them of counsel. Any business person who has worked with lawyers before would have seen it coming a mile away - so Tim Miller may be a nice guy, but he doesn't get to use ignorance as a defense in my book.

More importantly, what the attorneys represent about the breadth of the waiver is not the issue, it is what the client represents that is the issue. And not one of your videos has CA or GA saying that they waive confidentiality or to what extent. If you recall, Judge Strickland fully questioned Casey Anthony on her waiver of financial conflict - he did not let Mr. Baez make the representations.

And to further the point, it is ironic that in the same time-frame Mr. Nejame is on TV saying there is no conflict, his former clients are emailing him that they feel their is a conflict and withdraw their consent to his involvement with TexasEqusearch.

The best example would be to imagine a lawyer representing a husband in a divorce. Then suddenly - in the middle of the divorce - the lawyer wants to represent the wife's brother in a "business deal." While there may or may not be an actual conflict, there is clearly a perceived conflict - which is exactly what a lawyer is ethically required to avoid.

BBM - Mr. Hornsby, Nejame started representing TES in January 2009, the Anthony's email is dated 02/10/2010. Does the timing change your opinion?


Anthony Email: http://www.wftv.com/pdf/24581637/detail.html

Nejame Article: http://www.nejamelaw.com/mark-nejame-in-the-news/equusearch-fighting-baez-request.htm