Attorney-client privilege doesn't protect businessman's communications with Mintz Levin, court rules
Documents prepared by a BigLaw firm aren’t protected by the attorney-client privilege because of a reasonable inference that its client intended to use the legal services to foster illegal conduct, a federal appeals court has ruled.
The Boston-based 1st U.S. Circuit Court of Appeals ruled on Dec. 9 in a case involving Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, report the National Law Journal (sub,. req.) and the Wall Street Journal Law Blog. The law firm’s conduct was not at issue.
The court said that due to the crime-fraud exception, the attorney-client privilege did not protect privileged documents related to the firm’s work for David Gorski. Gorski is a Massachusetts businessman accused of falsely claiming his company was owned by a disabled veteran to obtain government contracts. He is charged with conspiracy to defraud the federal government and wire fraud.
The court said its decision does not “bear on the conduct or intent of the lawyers involved, because the crime-fraud exception is triggered by the intent of the client.”
Gorski had sought Mintz Levin’s advice on a corporate restructuring after a change in regulations that required disabled veteran owners to work full-time at the business. Before the restructuring, two veterans were listed as minority owners in the business.
Gorski says he is innocent. The 1st Circuit said a prima facie case supporting the crime-fraud exception had been made, but it “does not reflect a finding on the ultimate question of whether Gorski acted wrongfully.”
A Mintz Levin spokeswoman told the Law Blog that “the court was clear that the decision does not ‘bear on the conduct or intent of the lawyers involved.’ ”
Gorski’s lawyer, Tracy Miner, told the Law Blog that she is disappointed with the decision. “One would think that courts would want to encourage, not discourage, business owners to seek expert legal advice on complying with complicated regulations,” she said in an email.
Third paragraph rewritten at 7:30 a.m. to eliminate incorrect description of the crime-fraud exception.