Privileged PR? Not This Time, Says California Court

In the first decision of its kind in the state, a California appellate court may have opened the door to extending attorney-client privilege to a litigant’s public relations team.

On March 15, in Behunin v. Superior Court Los Angeles County, a three-judge panel took the position that a public relations firm hired to advise on strategy or to influence media coverage of a litigant could be protected under attorney-client privilege, in the same manner as a third-party expert or other litigation consultants. The court emphasized, however, that extending the privilege is contingent upon the litigant’s ability to prove that the information shared with the public relations firm was “reasonably necessary” from a legal standpoint.

In the case, the court held that a businessman involved in litigation with Charles R. Schwab over the fallout of an unsuccessful real estate venture could not use attorney-client privilege to protect the information shared between his attorney and a public relations firm hired to create a website in support of his case. Significantly, the panel reasoned that “without some explanation of how the communications assisted the attorney in developing a plan for resolving the litigation, [the Plaintiff] would not be able to show such communications were reasonably necessary to accomplish [the Public Relations firm’s] purpose in representing Behunin.”

Read the full opinion here.

New York City Bar: Prosecutors’ Duty to Disclose Held Broader Than Brady Standard

According to a recent opinion from the New York City Bar’s Ethics Committee, a prosecutor’s ethical obligation to disclose evidence favorable to a defendant is broader than the constitutional minimums imposed by the Supreme Court in Brady v. Maryland.

Under the holding in Brady, prosecutors are only required to provide  the defense with exculpatory evidence that is “material either to guilt or to punishment.” The materiality standard in Brady has been the subject of great criticism, prompting a divide on the issue of whether the lawyer conduct rule governing prosecutors’ disclosure contradicts federal constitutional standards.

New York City Bar’s Ethics Committee concluded that New York Rule of Professional Conduct 3.8(b) requires a prosecutor to turn over to the defense any exculpatory evidence regardless of whether the prosecutor believes it is “material.” Opinion 2016-3 reaffirms the position taken by the ABA in 2009, which advised that the ethical obligations imposed by Rule 3.8 are more demanding than the standard in Brady, because Rule 3.8 requires disclosure of any evidence or information favorable to the defense regardless of the prosecutor’s assessment of the impact on a trial’s outcome. The New York opinion also notes that under Rule 3.8 favorable information must be provided to the defense “as soon as reasonably practicable,”regardless of the timing requirements of other substantive law.

The New York City opinion can be read here.