From: IN%"unicorn@schloss.li" "Black Unicorn" 29-APR-1996 02:21:48.23
On Sun, 28 Apr 1996, E. ALLEN SMITH wrote:
Given discussions as to attorneys holding passphrases, et al, perhaps a tutorial from the lawyers on the list (yourself and others, since disagreements among J.D.'s have been known to happen) on what attorney-client confidentiality does cover?
Proposed FRE 503 probably has the best codification of the prevailing common law on the subject. I reproduce it in part below. Typos are mine.
Thank you.
Note the confidentiality requirement. A client is estopped from claiming privilege if he discloses the content of the communication to a third party not connected to the attorney-client relationship.
Understandable.
The identity of the client and the existance of the attorney client relationship are not confidential. There are some exceptions.
What are the exceptions?
Communications regarding future crimes or frauds are not protected.
I kind of knew that already... as should others.
Stolen property may be held by an attorney for a reasonable time for inspection purposes, but must be returned to the rightful owner or the attorney will be a receiver of stolen goods and participating in an ongoing crime. Privilege will thus not apply. In re Ryder, 263 F.Supp. 360 (E.D.Va 1967). (Some courts will permit the attorney to refuse to disclose the source from which he obtained the property, however). Consider this in the context of trade secrets.
A good point... although if it hasn't been proven whether something is stolen (e.g., an encrypted piece of data sent to the attorney), I would hope that privilege would still obtain. Of course, there would be the question (also important for First Amendment issues) of whether information that the recipient can't understand is communication.
All states have laws against destroying or concealing evidence. The attorney who advises his client to destroy evidence is a co-consiprator. Privilege does not apply. Clark v. State, 261 S.W.2d 339 (Crim. App Tex. 1953). (Interesting to wonder if advising a client to encrypt evidence is 'concealing' it).
A good question. Of course, again there's the point of what if the attorney has investigated the matter and decided that no crime is being committed, but that the material should be destroyed because it could be embarrasing, lead to other problems (e.g., civil lawsuits), etcetera. If a court later decides that the attorney was wrong, would privilege still obtain, and would the attorney be a co-conspirator? I would hope the answers would be yes and no.
Most of them aren't anonymous, either... although that does give me the thought of going to one outside the US and its reporting requirements. They'd know who I was (or at least the address it was going to), but at least nobody else would know. Any suggestions, since you've been writing of the joys of nymdom recently?
I suggest you use a forwarding service, sign up with your nym name, and provide the address of a P.O. box for them to forward to, also in the name of your nym.
The P.O. box signed up in the name of the nym would be a problem, however, given the current laws on ID necessary for this. Of course, this assumes not using fake ID (including that of a fictitious employer). I've gotten a couple of P.O. boxes in my own name recently (not wanting to disclose my current address), and they did want a couple pieces of ID. I should check what ID they will accept. -Allen