Saturday, November 07, 2009

On waiving attorney-client privilege to protect oneself

In a 2005 post [
Overzealous patent attorneys lead to client disenchantment
], IPBiz made reference to Parker B. Potter, Jr., Ordeal by Trial: Judicial References to the Nightmare World of Franz Kafka, 3 Pierce L. Rev. 195 (2005)["Since the mid 1970s, however, Kafka's name has appeared in more than 400 opinions written by American state and federal judges."]

In a 2009 post Welcome to Marikafka County, Arizona one has a description of a courtroom incident worthy of Kafka leading to a paradoxical ruling.

Radley Balko describes the incident:

As defense attorney Joanne Cuccia discusses her client's sentencing hearing with the judge, Maricopa County Sheriff's Department detention officer Adam Stoddard walks up behind her, and begins sifting through one of her files, which she has placed on the defense table. Remarkably, Stoddard then removes a document from the file and hands it off to another deputy, who then leaves the courtroom with it. They don't even bother to inform Cuccia, who has her back turned the entire time. The judge appears to have missed the incident as well.

Here's the interesting part as to the culprit Stoddard:

But Judge Gary Donahoe ruled that because the swiped document itself is protected by attorney-client privilege Stoddard wouldn't be able to mount his "keyword" defense, because the contents of the document can't be divulged. According to Heat City, Donahoe said Lozano would have to wave attorney-client privilege if he wanted to proceed with the hearing on whether Stoddard violated his rights.

Patent attorneys might see in this a variant of the "disclosing the patent opinion" issue.


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