I Am Not a Lawyer

Not all of my articles are killed by cruel, cruel fate. I was lucky enough to write a short piece for GC California’s March issue on the in-house attorney-client privilege. (Link requires premium access subscription to callaw.com; sorry.) So when I ran across another piece on corporate attorney-client privilege today, it caught my eye.

My article had to do with a California Court of Appeal decision affecting the in-house lawyer’s privilege. This column, written by Jones Day partner David Booth Alden, focuses on pointing out that not all courts see privilege as applying to both parties in the relationship. Clients, in this case companies, are protected in their confidential communications with their counsel. But counsel may or may not be protected in their communications with the client. That is, legal advice given in response to a direct request is sometimes discoverable! That’s because some courts have found that privilege is a one-way street. The article really only goes into a recent trial court decision in Pennsylvania, but mentions a couple of other places where courts have defined the privilege as a one-way street. It all seems to rely heavily on caselaw, which doesn’t help clarify much. I strongly suspect that trying to sum it up neatly would give me a headache.

Now, let me liven things up a bit with an unrelated Ninth Circuit ruling. (Yes, it’s come to that.) I spent most of yesterday working for a copywriting client on immigration stuff, and found out that U.S. immigration law penalizes people for crimes involving “moral turpitude.” You are inadmissible if you’ve been convicted of such crimes, and you can be deported after being convicted of one, even if you’ve got a green card. Alas, moral turpitude is not well-defined, and even though the old-fashioned notions inherent in the phrase make me laugh, it’s serious business. Judging by what the Ninth puts out, courts seem to spend a lot of time deciding which crimes qualify. Today, the Ninth decided in Tall v. Mukasey that counterfeiting a mark (CA Penal Code sec. 350(a)) does qualify as a crime involving moral turpitude, because it’s essentially theft. They don’t explicitly say so in the opinion, but I think we’re talking about fake Gucci purses and the like. So that’s one definition of moral turpitude.