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Book Burning

Call the Fahrenheit 451 squad.  A former intern for an anti-death-penalty organization is writing a book, and the organization wants it suppressed.  Karen Sloan has this story in the NLJ.

The Louisiana Capital Assistance Center claimed that Alexandria Marzano-Lesnevich is violating attorney-client privilege in her writings, which have appeared on her Web site and in a literary journal. Marzano-Lesnevich was a law clerk at the center during the summer of 2003, when she was a student at Harvard Law School.
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Marzano-Lesnevich's attorney, Lori Mince, told the Associated Press that her client has not disclosed any confidential information. Mince has filed court documents arguing that Marzano-Lesnevich isn't bound by attorney conduct rules.

"Her core position is, 'There's nothing privileged about what I'm saying and you can't get a court to order me not to talk,' " Mince said.

Marzano-Lesnevich, who lives in Massachusetts, is working on a book about the prosecution of Ricky Langley, a sex offender who was convicted of killing a 6-year-old boy in 1992. Langley is one of the center's clients.
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"I knew most of our clients were guilty," she wrote. "It was part of why I had chosen to spend my summer working at the firm."
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The center alleged that Marzano-Lesnevich's writings would also hurt the center's ability to collect donations and other financing.

That last part, I suspect, is the center's real problem.  If it were more widely known that almost all, perhaps truly all, of the center's clients are actually guilty of horrible crimes, a good portion of the people presently donating will decide there are better priorities for their limited donation funds.


So it's alright to violate attorney client privilege then, so long as someone is doing it to clients of whom you disapprove? I had no idea you had become such a moral relativist.

As the story states very plainly, Ms. Marzano-Lesnevich denies that anything she is publishing constitutes attorney-client privilege material.

It is common with the capital defense bar to make extravagant claims of privilege, going far beyond the actual privilege.

There is also the matter of the constitution. Prior restraints are not favored, and one would think that a group representing capital defendants would be familiar with the Constitutional rights of others.

federalist --

I think you missed the Con Law class where it was revealed that prior restraints are disfavored EXCEPT when the thing being priorly restrained would embarrass favorite liberal causes like abolitionism. Then they're OK.

My bad. I had forgotten about that little known codicil to the US Constitution.

Well, if her lawyer says it, it must be true then. After all, he isn't representing a criminal defendant. While it is a novel question, courts have in fact held that prior restraints can be employed to prevent the dissemination of attorney-client privileged communications in capital cases. State Record Co. v. State, 332 S.C. 346 (S.C. 1998) (upholding trial court injunction prohibiting the media from disseminating the contents of a videotape containing privileged communications between defendant and his attorney in a capital murder case). Is it possible that you need a refresher on First Amendment law, not me?

One odd state court decision does not First Amendment law make. You'll have to do better than that. We don't ban books here in the US. I didn't bother to read the case, but I am wondering if there are some distinguishing facts, e.g., impropriety in the procurement of the video.

It's not the only such decision. Take a look at the Eleventh Circuit's decision in United States v. Noriega, 917 F.2d 1543 (11th Cir. 1990), which prevented CNN from airing a tape of Manuel Noriega talking to his counsel. And against this, I am just hearing alot of bloviating and hot air; no actual caselaw. As for impropriety, violation of the attorney client privilege, if it occurred, by an actual employee of defense counsel seems plenty improper to me.

Ok, I bit, and read the Noriega case. I wasn't aware that the current dispute implicated the fair trial right of one of the clients of the defense center. Since that's what the Noriega case turned on, I'd say you're citing me some pretty inapposite caselaw, since it appears that the trials are long over. And "bloviating"?? All I said was that prior restraints on speech are disfavored, which is a completely accurate statement of the law.

And then I read the SC case. Same thing--turns on defendant's right to a fair trial (and probably the surreptitious recording). If there's no trial pending, I'd suggest it's back to the drawing board for you.

You and I are not destined to agree on much I am sure. I can't help but suspect though, that your views are colored by your antipathy towards the client whose interests are at stake in this case.

Imagine instead that: (1) you work as a partner at a securities firm, (2) one of your associates decides to publish a book with privileged information obtained from privileged communications with a client you represent in litigation; and (3) the publication of that book would irreperably disadvantage your client in the very litigation they retained you to represent them in.

Would you really have difficulty arguing that the associate should be restrained? I doubt it.

Would it be outrageous for the court to conclude that your client's right to a fair civil trial would be harmed by the wrongful publication of this privileged information and enjoin the publication, based on the balancing of interests that the court would be required to consider? I don't think so.

Fairness requires evenhandedness, even to clients you despise, but perhaps you disagree . . .

My, how we've shifted. I went from "bloviating" to my view is just colored by my dislike of criminals. And you went from citing inapposite caselaw to thinly veiled ad hominem (couched in a "let's agree to disagree" tone--cute).

As for your hypo, there are a number of issues--first, with respect to the facts at hand, there is no trial pending, civil or criminal. Second, the associate is an officer of the court representing a client, which changes the analysis. The woman here was not a lawyer at the time of the alleged "representation."

I was going to let your last sentence slide--but I've decided against that. Evenhandedness most certainly does not require the twisting of the law in favor of a murderer, particularly in a manner that does violence to the First Amendment. It seems clear here that even under an expansive reading of cases you cite, there would be zero authority to permanently enjoin the publication of the book in question. So it seems to me that you are willing to trample the rights of others for the benefit of a child-killer. Who is the one who is not being evenhanded?

Thanks for playing. Bring some more game next time.

I'm glad my hypo made you uncomfortable; it should have, and it wouldn't change much if the person betraying your trust was a summer intern, or an investigator employed by your office, or a summer associate. In either event, they are acting on your behalf, are your agent and you are ultimately responsible. The client still has an entirely justified expectation that their confidences aren't going to be spilled out all over the newspapers.

Langley is being represented in a capital habeas case, and that counts as litigation, even if it's not as "important" in your mind as representing Goldman Sachs in connection with SEC litigation, or a wealthy millionaire charged with corporate fraud. The attorney- client privilege needs to count for something in either event, whether or not you, or I, or the general public, have justified or unjustified antipathy for the client in question. Situational ethics aren't pretty and nothing you can say will justify them.

Langley is being represented in a capital case . . . . um so what. The cases you cited have to do with trials, not habeas, and the two are quite different--one big difference, no jury in a habeas case. Hence, the fair trial issues are simply not present here. And given the rules against prior restraint, my guess is that the motion here borders on frivolous.

I don't really understand where you get off thinking that I don't think that attorney-client privilege is important. Nothing I have said in here indicates otherwise. To be blunt, I don't particularly feel sorry for the child-killer here, but I don't advocate breaking his confidences either, and were I the bar authorities, I would punish it. I don't particularly care for Nazis, communists and other assorted nuts. However, I do care about their right to speak. That doesn't make me a Nazi, commie or anything else, it simply means that I believe in free speech.

Let's look at your argument here. At first, you cited cases and said that I was bloviating because I didn't deal with them, although, as I suspected they were inapposite. So now that you've been wiped out on the law, you whine about a capital murderer's alleged confidences being blown and accuse me of situational ethics. All because I pointed out that prior restraints are disfavored and the cases you cite don't support your position?

All in all, pretty weak. Start with getting the law right, and then you can play with the big dogs. Otherwise, stay on the porch.

Well, I went to all the trouble to register a name that I hope satisfies the new policy of this site, adopted since my last post, so I guess I'll respond one last time. I find the myriad minor distinctions you make and shift from pretty thin: Oh, those cases involved a criminal trial, not post-conviction litigation. Oh, that would be a civil case where you might (but might not) be seeking a jury trial, this is a quasi-civil case where the judge will decide if your constitutional rights are violated. Oh, that hypo involved an associate, this case involved a summer intern who was the attorney's agent. In my mind, general principles matter more than ths kind of niggling pettifoggery. But far be it from me to deprive you of the last word. Go for it, Federalist, you big dog you! The floor is yours.

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