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U.S. Supreme Court

ABA Gets ‘Shout Out’ in Oral Arguments About Attorney-Client Privilege

Posted Oct 6, 2009 8:01 AM CDT
By Debra Cassens Weiss

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An ABA amicus brief got the attention of Chief Justice John G. Roberts Jr. in oral arguments yesterday on the right to appeal an adverse ruling on attorney-client privilege.

The National Law Journal noted the ABA mention, saying Roberts “offered a rare shout-out to the American Bar Association.” The ABA brief (PDF) says parties should be able to immediately appeal when a judge rules they have waived attorney client privilege.

Roberts mentioned the brief when addressing Yale law professor Judith Resnik, who represents a fired worker seeking access to interviews by his company’s general counsel. "We--I, at least--look at a brief of the American Bar Association and view that as a representation of how the people affected here, the lawyers, view the value of the privilege and what will happen to it," Roberts said. Briefs from law professors may take the opposite side, he said, but they "aren’t the ones who deal with this question on a day-to-day basis and have to worry about going to jail."

According to the NLJ account, several justices appeared skeptical that the attorney-client privilege should be protected more than any other privileges. Justice Antonin Scalia talked about the protection of trade secrets and offered this hypothetical: Is there a right to an immediate appeal of a ruling if a judge orders the release of the formula for Coca-Cola?

Justice Samuel Alito Jr. offered a different view. He said the 3rd U.S. Circuit Court of Appeals allowed collateral appeals and "it didn’t seem to me that the sky was falling."

The case is Mohawk Industries v. Carpenter.

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