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FIGHTING HATE // TEACHING TOLERANCE // SEEKING JUSTICE
AUGUST 29, 2015
Richard Cohen Photo
Richard Cohen
President

Dear Gaston,

Ten years ago today, Hurricane Katrina devastated the Gulf Coast, killing nearly 2,000 people and displacing hundreds of thousands.

I’ll never forget the horrifying images of families stranded on rooftops, surrounded by the swirling floodwaters and begging for help – or the thousands of evacuees stuck in New Orleans’ Superdome for days without enough food or water.

Shortly after the storm, we opened a small office in New Orleans. Among our first priorities was ensuring that the city’s most vulnerable children were not left behind as the city rebuilt its school system.

In one of our proudest moments, we successfully litigated a pioneering lawsuit aimed at making the promise of the city’s new charter school system become a reality for all children, not just the privileged.

We also won justice for migrant workers who had come to the city to help rebuild it only to be exploited by employers who cheated them out of their wages.

After a decade, the recovery in New Orleans is still not complete. And neither is our work for the city’s children.

The coming battles won’t be easy. But we’re committed for the long haul.

On behalf of our clients, we thank everyone who has stood with us.

Sincerely,

Richard Cohen Signature
Richard Cohen
President, Southern Poverty Law Center
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Corporate Greed Destroy Poor People

Wnlace Corto  http://wp.me/p2jyCr-vl 

In modem-day debtors’ prisons, courts team with private sector

http://www.cbsnews.com/news/the-rise-of-americas-debtor-prisons/

Nota del Editor del Blog (Dr. Gaston Saint Martin (gsaintmartin@hotmail.com)  Si alguien debe MUCHISIMO, y NO puede pagar, aunque sea “culpable de avaricia o aun peor culpable de fraude ilegal, es: “TOO BIG TO FALL y le sobraran abogados corporativos a U$A 1,000.00 la hora o mucho mas: (Casos de la crisis inmobiliaria  de Wall Street en el  2008) / Si alguien es de clase media, tiene educacion un trabajo remunerado y DEBE MUCHO porque esta atrapado en el sistema de intereses usureros de sistemas prestamistas, existen muchos abogados (de a pie) que viven de eso:  de rescatarlos y reabilitarlos legalmente… PERO si alguien es pobre, joven, recien comienza, esta estudiando y tiene la mala suerte de recibir un estupido ticket de transito, no solo deberá elegir entre comer o pagar a credito con intereses cada vez mas y mas altos, hasta perder todo, incluida su libertad, su vida y su futuro Nadie lo ayudara pues esos abogados viven del porcentaje de lo que le que puedan sacarles a los perejiles, con toda impunidad, sin trabas ni frenos morales de ningun tipo. ¿Que estoy hablando de barbaridades historicas ya superadas?  … ¡NO … ESTOY HABLANDO del presente!  año 2015) Lea bien los dos articulos que siguen y NO SE PIERDA LOS  de gente simple como Ud. mismo, estan al final de todo…

___________________

For teenager Kevin Thompson, a traffic ticket ended up costing him not only his driver’s license, but also his freedom.

In his account of the experience, Thompson says he was ordered to pay $810 in fines by Georgia’s DeKalb Recorders Court, an amount that was out of reach for the low-income auto shop and tow truck worker. Instead of working with Thompson to find another way to pay, such as through community service, the court handed off Thompson to a for-profit probation company called Judicial Correction Services (JCS). JCS told Thompson he had 30 days to pay the fine, but also gave him erroneous legal information, such as overestimating the cost of a public defender.

Thompson notes that the court later took up a JCS officer’s recommendation to incarcerate him, resulting in a five-day stint in jail for failing to pay the fine.

Thompson, whose case was represented by the American Civil Liberties Union, is just one of the poor Americans ending up in a modern-day version of the debtors’ prison, an antiquated punishment that was eliminated by the U.S. in the 1830s. A rash of new cases are coming to light as municipal courts increasingly outsource probation to for-profit companies like JCS, which make their money by tacking on their own fees to traffic violations. They typically don’t charge the courts or municipalities for their services.

“Since 2009, we have been hearing increasing reports that people are being jailed for a failure to pay fines and fees,” Nusrat Choudhury, staff attorney in the ACLU Racial Justice Program, told CBS MoneyWatch. “We’ve observed that for-profit corrections companies are proliferating. They offer what appears to be a win-win to local governments because they offer to generate revenue from people who are too poor to pay on probation day.”

Thirteen states rely on for-profit probation companies such as JCS, Choudhury said. It’s difficult to get a sense if the municipalities that hire for-profit probation companies are poorer or in deeper financial straits because they are scattered across the country, she added. What’s clear, however, is that Thompson’s case isn’t an anomaly.

More than 1,000 courts using private companies sentence hundreds of thousands of Americans to probation each year, according to a report published last year by the Human Rights Watch, which called the trend an “offender-funded” model of privatized probation. In Georgia alone, 30 probation companies are working in more than 600 courts throughout the state, allowing them to collect almost $100 million in fines, court costs and restitution for those courts, and collections in 2012, the report noted.

Although these companies often provide a needed service, there are a range of potential pitfalls, especially as more towns and counties turn to for-profit models. For one, jailing people for being unable to pay court fines violates a U.S. Supreme Court ruling from 1983 that prohibits imprisoning people who are too poor to pay their legal debts. Judges must first consider a person’s ability to pay a fine, the efforts to acquire the money and alternatives to incarceration.

Because for-profit probation companies tack on their own fees to the original municipal fines, that adds to the hurdles that people must jump over to try to erase the debt.

That’s landed JCS and other probation companies, as well as the municipalities that hire them, in legal hot water. The Southern Poverty Law Center earlier this month filed suit against JCS and Clanton, Alabama, on behalf of assembly-line worker Roxanne Reynolds, who wasn’t able to pay her traffic ticket fines and ended up in the hands of JCS.

Because JCS added its own fees to the traffic fines, it compounded Reynolds’ difficulties in paying down the fine. According to the lawsuit, the for-profit probation company charges $40 for each month of probation, which means that the initial amount of a person’s traffic fine can end up snowballing into a much greater sum.

The lawsuit states that Reynolds skipped buying groceries and paying other bills to save up money to make the payments, while JCS allegedly never told her that she could have asked to have the company’s fee waived because of her poverty. The lawsuit claims that JCS violated federal racketeering laws by allegedly extorting monthly payments and the company’s fees from probationers.

“JCS operates within the boundaries of transparent, publicly accessed contracts, which have been executed by municipal leadership,” the company said in a statement to CBS MoneyWatch. “For municipalities that are unable to fund the service we provide on their own, we see our contribution as a necessary component for enforcing fines that might otherwise be neglected.”

In the ACLU’s view, the relationship between municipalities and for-profit probation companies creates a financial incentive to generate profits at the expense of probationers’ rights.

“The profit incentive pushes the private probation companies away from identifying indigent people,” Choudhury said. “Because indigent people must by law have their fines waived, that cuts into company profit. The profit motive is distorting the proper functioning of the system.”

In some cases, it may be the municipalities themselves that are seeking to drive up revenue collection from residents. The Justice Department issued a scathing report about Ferguson, Missouri, which was the focus of protests and civil unrest last year over the fatal shooting of teenager Michael Brown by a police officer. The DOJ uncovered a pattern of emphasizing revenue collection by its police officers and municipal court.

“The court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the city’s financial interest,” the report noted.

It’s not only failure to pay traffic tickets that are landing Americans in jail. Across the country, there are at any moment 730,000 people who are locked up in a local jail because they’re too poor to post bail, according to a report issued last month by the nonprofit Vera Institute of Justice. A 2010 report from the ACLU also found that municipalities in states from Washington to Ohio were jailing people too poor to pay their legal debts.

For-profit probation companies aren’t responsible for deciding who goes to jail for paying a fine, it’s worth noting. Said JCS: “That decision is made by the court. We are retained to serve the court and to report on activity of those individuals who have outstanding fines. We do not make the decision as to whether their offense or lack of payment warrants incarceration.”

While a judge makes decisions about incarceration, Choudhury notes that the introduction of a for-profit company into the system can lead to “incomplete and incorrect information from probation officers who aren’t trained about constitutional rights.” The Human Rights Watch report noted that for-profit probation companies, while unable to send people to jail, “routinely threatened to have them jailed for failing to make payments or for falling into arrears.” The companies end up with “a great deal of coercive power,” it added.

In Thompson’s case, the lawsuit was settled earlier this month, with JCS and DeKalb County denying unlawful conduct. The ACLU and Thompson also received a monetary settlement of $70,000. The DeKalb County Recorder’s Court agreed to some changes as well, such as training personnel on probationers’ rights to counsel in revocation proceedings and the right to an indigency hearing before jailing for failure to pay fines.

Of the settlement, Choudhury noted that Thompson “was emotional and grateful, both because of the monetary award and because he was able to secure change for other people.”

© 2015 CBS Interactive Inc.. All Rights Reserved.

___________________
Debtors’ Prisons

https://www.schr.org/our-work/debtors-prisons

 

Contrary to what many people may believe, there are debtors’ prisons throughout the United States where people are imprisoned because they are too poor to pay fines and fees.

The United States Supreme Court inBearden v. Georgia, 461 U.S. 660 (1983), held that courts cannot imprison a person for failure to pay a criminal fine unless the failure to pay was “willful.” However, this constitutional edict is often ignored.

Courts impose substantial fines as punishment for petty crimes as well as more serious ones. Besides the fines, the courts are assessing more and more fees to help meet the costs of the ever-increasing size of the criminal justice system: fees for anklebraceletsfor monitoring; anger management classes; drug tests, crime victims’ funds, crime laboratories, court clerks, legal representation, various retirement funds, and private probation companies that do nothing more than collect a checkeverymonth.

People who cannot afford the total amount assessed may be allowed to pay in monthly installments, but in many jurisdictions those paymentsareaccompanied by fees to a private probation company that collects them. A typical fee is $40 per month. People who lose their jobs or encounter unexpected family hardships and are unable to maintain payments may be jailed without any inquiry into their ability to pay.

There are more fees for those in jails or prisons. There are high costs for telephone calls.Inmatesare charged fees for medical services. A new trend is “room and board” fees in prisons and jails.

SCHR Files on Behalf of Detainees who cannot pay

Ora Lee Hurley spent nearly a year at the Georgia Department of Corrections, Atlanta Diversion Center due to her inability to pay a $705 fine from a 15-year-old drug conviction because she was charged for staying there. A court had ordered Ms. Hurley imprisoned until her fine was paid. While held at the Diversion Center, Ms. Hurley was employed full-time at arestaurant thatsent her paycheck directly to the Department of Corrections. Although Ms. Hurley never missed a day of work and earned over $7,000, the Department took nearly every penny of her earnings. Left with only $23 per month to buy food, toiletries, and pay her fine, Ms. Hurley was being confined in perpetuity. She was released only after SCHR filed a habeas petition on her behalf. For a copy of the habeas petition, click here.To view the Atlanta Journal Constitution article, click here.

SCHR is working to secure lawyers for Indigent Parents

In 2011, the Southern Center for Human Rights (SCHR) filed Miller, et al.  v. Deal, et al., a civil rights class action lawsuit that seeks to secure lawyers for indigent parents who have been jailed or are in danger of being jailed without counsel for being too poor to fulfill their child support obligations.

In Georgia, aggressive efforts to incarcerate parents for child support debt are often focused on the poorest of the poor, rather than on well-to-do parents who willfully dodge their child support obligations. Georgia is also one of the few states that forces indigent parents who owe child support debt to plead for their liberty, without counsel, against an experienced, state-funded lawyer who is trying to send them to jail.

In the past two years, Georgia has jailed over 3,500 unrepresented parents for child support debt. Many of these parents are held for months-some for over a year-even though they have no money to pay and no way to earn money while in jail. You can read more about this case, here.

SCHR Ends Jail Fees for Pre-Trial Detainees

In some cases, jails have even charged room and board fees for people detained on charges but not convicted of any crime. For 17 years, the Clinch County Jail in Homerville charged those in its custody a daily room and board fee. Even though Georgia law did not authorize – and in fact prohibited – such charges, the County Sheriff charged inmates $18 per day. Many people were too poor to pay the fees upon their release. The Sheriff and his deputies required them to sign notes promising to pay the fees in installments, or return to jail. On several occasions, the Sheriff charged people thousands of dollars, failing to return the money even when criminal charges were dismissed. A lawsuit filed by SCHR, ultimately settled, required the Sheriff to return the illegal fees. For a copy of the Complaint, click here. For a copy of the Plaintiffs’ Motion for Summary Judgment, click here. For a copy of newspaper articles related to the case, click here. To hear a report by National Public Radio on Clinch County Jails, click here.

SCHR ends Debtors’ Prison in Gulfport, Mississippi

In an effort to crack down on people who owed misdemeanor fines, the City of Gulfport employed a fine collection task force. The task force trolled through predominately African-American neighborhoods, rounding up people who had outstanding court fines. After arresting and jailing them, the City of Gulfport processed these people through a court proceeding at which no defense attorney was present or even offered. Many people were jailed for months after hearings lasting just seconds. While the City collected money, it also packed the jail with hundreds of people who couldn’t pay, including people who were sick, physically disabled, and/or limited by mental disabilities. SCHR filed suit to stop these illegal practices. For a copy of the Complaint, click here. For related news coverage, click here.

Other financial distortions

Debtors prisons are but one example of financial incentives that have a distorting effect on the criminal justice system. Criminal justice policies – how many prison beds to build, whether to arrest someone or cite them, what sentences to impose – should be primarily concerned with making us safer. But the profit motive is increasingly distorting the system.

Many counties throughout the South, for example, are committing scarce dollars to building larger jails in anticipation of securing a lucrative contract with the federal government to house detainees for Immigration and Customs Enforcement (ICE), the United States Marshals Service or even prisoners from other counties or other states. One example would be the importation of incarcerated women from Connecticut to a private prison in Aliceville, AL. As another example, the design of work release programs – something that should be focused on developing skills and reducing recidivism – is often driven primarily by an interest in collecting as much money as possible from the prisoner-workers. The privatization of probation, imprisonment, and other parts of the criminal justice system create incentives for expanding the criminalization of poor people.

_____________________________________

 

85 Comments  (Poor Debtors Prisons Across The USA)

JAKESHUMAN March 25, 2015 9:9PM

Folks, this is fascism; when there is very little demarcation between government and business.  When corporations actually direct what the government does by first, buying it, then taking over government’s services for profit and then becoming it.  Imagine what would have happened if we had privatized social security when Bush wanted to do it.  A lot of people’s only source of retirement would have gone down in flames in 2008.

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6QCKSLVR9 March 25, 2015 8:8PM

This is almost as shameful as for-profit prisons! Sieg Heil!

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CHRIS3DOG March 25, 2015 7:7PM

Poor folks being introduced to the new world order…….Corporate America

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MAC2JR March 25, 2015 7:7PM

@chris3dog

Rome shall burn… History will repeat when the GOP Voters wake up to what the Democrat voters have been trying to tell them for decades.

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MAC2JR March 25, 2015 7:7PM

Many of the Florida Red Light Cameras trigger when a vehicle makes a ‘right hand turn’ on the Red, even after the person stopped, and then proceeded legally to make the ‘right hand turn’.   Many Jerkwater GOP states do things like this, and it is usually a poor person that get nailed for the fines and the jail terms.., the rich have other transport or professional drivers or political pull.

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MAC2JR March 25, 2015 7:7PM

Check new laws being passed in GOP states, especially in OHIO.. The laws for getting license plates and driver’s licenses are changing so that military personnel and college students will have to pay hundreds when in the state as a ‘Temporary Resident’, the GOP’s purpose, to stop all the ‘illegal voting’, yeh right.

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ASKAGAIN March 25, 2015 7:7PM

So what is the answer to collecting from deadbeats? Take it from the taxpayers, of course. Given that choice, go after the deadbeats.

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MAC2JR March 25, 2015 7:7PM

@askagain

No, just set up a payment schedule that makes sense and is affordable, or make part of the payment some sort of community service..

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ASKAGAIN March 25, 2015 7:7PM

@Mac2jr @askagain  – Sounds great but what happens when deadbeats fail to honor the payment schedule? I own a business and it happens often.

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MAC2JR March 25, 2015 7:7PM

@askagain @Mac2jr

Most that fail to honor the payment schedule do so because the court ordered payment were not within the person’s wage and expense ranges.

Or, the schedule fails to fully inform the person paying of the actual payments, or the ‘extras’ that are tacked on to the Principal payment.

My court ordered divorce payments forgot to ‘add’ the 6% interest to the court ordered monthly payment, and although I had fully paid the ‘stated’ payments, I ended up with over a hundred thousand in ‘interest’ charges that were NOT included on the ‘Payment Stubs’..

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MAC2JR March 25, 2015 6:6PM

The private prison system is set up to have ‘X’ number of Beds in each facility, and the contract with the governments is usually set-up to guarantee a 90% or more occupancy, therefore, if the jail is only 80% full, the township still pays for a 90% full jail, so it behooves the authorities to find a way to fill that 90%, which is to put more people in jail..

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STEALYERTHUNDER March 25, 2015 5:5PM

Started under Bush. Obama bears some responsibility too, but southern Rightwing wacko jurisdictions are hard to stop. – – – Oh, unless people one day stop voting republican.

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LASERWIZARD March 25, 2015 5:5PM

I don’t see an issue here – if Government is owed money, it is owed money.   Fines and interest will accrue regardless.    This situation is not a surprise – if your elected officials whom you voted for approved this setup, then you only have yourselves to blame.    The solution is simple – don’t violate the law – and if you do, pay the fine or contest it in court.   The poor and lazy have no excuse for violating the law.   Perhaps when adults start taking responsibility for their actions, we won’t have to privatize what Government doesn’t want to deal with.

 

The poor don’t get an exemption from paying the fines (and interest) on the penalties they accrue from violating the law.    If we can be compelled to buy health insurance that covers us for the wrong gender and we can be fined for not having it, then I feel nothing for the poor who get a taste of their own leftist government they voted in.

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BENJAMINDOVER666 March 25, 2015 6:6PM

@laserwizard I’m glad that you don’t see an issue.

By the way, there may come a day when your city is having a major budget crunch, and they ask the police department to increase the funds. When this happens, there is a chance that an officer will pull you over for speeding, even though you were not speeding.

If you have a lawyer to fight it, then good luck for you.

If not, then see you in jail.

Never, ever, ever assume that you have to do something wrong in order for the police to ticket you, arrest you, or even kill you. Innocent people die on death row, you know.

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MAC2JR March 25, 2015 7:7PM

@BenjaminDover666 @laserwizard

City needs a new court House, and therefore will order the police to increase tickets, where up to 50% or more of each ticket goes to the ‘Building fund’…

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MAC2JR March 25, 2015 7:7PM

@laserwizard

Got into an intersection making a left hand turn, the light was 15 feet behind the ‘Red Light’ senors, and was not red when entering the intersection, but the car immediately in front did not turn left, but made a full-stop, and then a ‘U’ turn, thus bring me to a stop with the rear wheel in the senor’s trap.  the ticket was $250, to fight it would mean a day at court, and if I loss the argument, which I was informed would happen, a boost in the fine to over $550.  The alternative was to take a ‘course’ at a PRIVATE FLORIDA Company’s website or local location for $225.00 plus $40 for the State…

Thus the “American Safety Council” got a ‘gift’ from the state and me.. for a legal turn that turned illegal after it was in process.

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INMCLEANNOVA March 25, 2015 5:5PM

Welcome to the United Corporations of America, Inc.

Pay up or go straight to jail and do not collect 200 dollars.

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Attorney-Client Privilege.doc  (http://www.sgrlaw.com/resources/trust_the_leaders/leaders_issues/ttl5/916/)

What the Attorney-Client Privilege Really Means

Short Link to Share >  http://wp.me/p2jyCr-vg

How can a client feel secure from the potential risk of having sensitive information fall into the wrong hands? In an extremely complex and competitive business climate saturated by consultants, technical advisors and outside experts, the sophisticated business owner might pause to consider one of the fundamental advantages of retaining legal counsel. By its very nature, the attorney-client relationship affords a distinct, invaluable right to have communications protected from compelled disclosure to any third party, including business associates and competitors, government agencies and even criminal justice authorities.

ATTORNEY-CLIENT PRIVILEGE: DEFINITION

The attorney-client privilege is the oldest privilege recognized by Anglo-American jurisprudence. In fact, the principles of the testimonial privilege may be traced all the way back to the Roman Republic, and its use was firmly established in English law as early as the reign of Elizabeth I in the 16th century. Grounded in the concept of honor, the privilege worked to bar any testimony by the attorney against the client.1

As the privilege has evolved, countless policy justifications have played a role in its development. At its most basic, the privilege ensures “that one who seeks advice or aid from a lawyer should be completely free of any fear that his secrets will be uncovered.”2 Thus, the underlying principle of the privilege is to provide for “sound legal advice [and] advocacy.”3 With the security of the privilege, the client may speak frankly and openly to legal counsel, disclosing all relevant information to the attorney and creating a “zone of privacy.”4 In other words, shielded by the privilege, the client may be more willing to communicate to counsel things that might otherwise be suppressed. In theory, such candor and honesty will assist the attorney in providing more accurate, well-reasoned professional advice, and the client can be secure in the knowledge that his statements to his lawyer will not be taken as an adverse admission or used against his interest.5 Indeed, armed with full knowledge, counselors at law are better equipped to “satisfy all of their professional responsibilities, uphold their duties of good faith and loyalty to the client, and [contribute] to the efficient administration of justice.”6

For all of its policy considerations and justifications, the attorney-client privilege has a very real practical consequence: the attorney may neither be compelled to nor may he or she voluntarily disclose matters conveyed in confidence to him or her by the client for the purpose of seeking legal counsel. Likewise, the client may not be compelled to testify regarding matters communicated to the lawyer for the purpose of seeking legal counsel.7 So, what is the privilege and when does it apply?

Although there is no single authority on the attorney-client privilege, it has been defined as follows: “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his [or her] capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his [or her] instance permanently protected (7) from disclosure by [the client] or by the legal adviser, (8) except the protection be waived.”8

One federal judge opined that “[t]he privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.”9

No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.10

WHAT CONSTITUTES AN ATTORNEY-CLIENT RELATIONSHIP?

We begin our analysis of the privilege with the obvious: before the privilege exists, there must be an attorney-client relationship. As elementary as this concept seems, many clients assume the relationship exists and mistakenly rely upon the protection of the privilege, but the privilege does not exist until the relationship is firmly established. Generally speaking, the attorney-client privilege does not take hold until the parties have agreed on the representation of the client.

In the majority of cases, the determination that the attorney-client relationship exists is not a laborious undertaking, for more often than not, the attorney has expressly acknowledged representation of the client. Such an express acknowledgment may be demonstrated by an engagement letter, a fee contract, or even an oral agreement as to the scope of the representation. An attorney-client relationship may also be expressly acknowledged by the “appearance” of the attorney on behalf of the client, including filing pleadings in court for the client, drafting documents on behalf of the client, or appearing in court as the representative of a litigant.11

Unfortunately, it is not always so clear when an attorney-client relationship exists. Suppose Sally Smith contacted David Jones, an attorney, by telephone. During the course of the conversation, Smith explained to Jones that she is involved in a dispute with the Internal Revenue Service concerning a tax savings arrangement devised for certain business objectives. She discloses important facts and highly sensitive information during the conversation, then asks Jones for his legal opinion. Is the content of this conversation privileged? It depends.

An express contract is not necessary to form an attorney-client relationship; the relationship may be implied from the conduct of the parties. However, the relationship cannot exist unilaterally in the mind of the potential client absent a “reasonable belief” that the attorney-client relationship exists. The implied relationship may be evidenced by several factors, including, but not limited to, the circumstances of the conversation, the payment of fees to an attorney, the degree of sophistication of the would-be client, the request for and receipt of legal advice, and the history of legal representation between the alleged client and the practitioner. While this list of factors is illustrative, none of these factors, standing alone, will affirmatively establish the existence of an attorney-client relationship.12

In our example above, without more, a confidential relationship likely does not exist unless there is some history of former representation. Of course, if the conversation continued, and Jones proceeded to dispense legal advice, then Smith might have a reasonable belief that the relationship exists. This reasonable belief would be strengthened by evidence that Smith and Jones discussed payment, potential courses of action, and other details regarding the future handling of the matter.

The waters become more murky when the potential client is a business entity. In the corporate context, the attorney-client privilege exists between outside counsel and the corporation. Necessarily, however, the invocation of this right by a corporation is more complex than when an individual is involved, as a corporation is an artificial “person” created by law and is only able to act through a representative, including officers, directors and employees.

The courts have faced the daunting task of determining when the attorney-client privilege applies when a corporation is the client. For years, courts employed one of two “tests” to make this determination: the subject matter test13 and the control group test.14 The current trend, however, focuses on whether the matters discussed are encompassed by the corporate duties and responsibilities of the employee.

Take, for example, our hypothetical from before. Suppose that Sally Smith called not on her own behalf, but on behalf of her corporation, ABC Company (ABC). Smith is the president or chief financial officer of ABC, and discusses with Jones, the attorney, the tax exposure or potential liability of ABC. Because Smith is the president of the corporation, the privilege clearly extends to these communications. If, however, the call was made by Jane Edwards, the accounting manager, the answer becomes less clear. Based upon the current trend of the courts, Edwards’ conversations with the attorney are privileged so long as the issues she discusses with the attorney are directly related to her responsibilities within the company.

What is the result, however, when an employee such as Smith seeks advice in her individual capacity, as opposed to the corporate one? The courts will extend the attorney-client privilege to corporate officers, even as an individual, as long as there is clear evidence that the corporate officer communicated with counsel in the officer’s individual capacity concerning personal matters such as potential individual liability. Not surprisingly, the showing required of the corporate employee in this regard is a more stringent one. Moreover, even if the requisite showing is made, certain information might create a conflict of interest for the corporate attorney. In that case, the corporate attorney must end the conversation and advise the corporate employee to seek separate counsel.15

One final consideration arises in the context of in-house counsel. A communication relating to corporate legal matters between a corporation’s in-house counsel and the corporation’s outside counsel is normally subject to the privilege.16 However, when the communication is between a representative of the corporation and the in-house counsel, the distinction is less clear. Because in-house counsel often wears several hats, courts have struggled with the application of the privilege.17 The privilege would extend to any legal advice rendered, but it does not protect communications that are strictly business-related.18 Problems arise when the communication contains both legal and business advice, and the courts take different approaches in determining whether or not to apply the privilege. At the very least, it appears that the court will first attempt to determine what role in-house counsel plays within the company — that of a lawyer or that of a corporate executive. From there, many courts will examine the content of the communication, and this examination will yield varying results.19 As such, the in-house lawyer should be careful to separate his legal advice from his business opinions.

CONFIDENTIAL COMMUNICATIONS

Assuming that the attorney-client relationship is well-established, is every communication protected? That also depends. The basic attorney-client privilege protects client communications with the attorney. It also extends to responsive communications from the lawyer to the client. However, the communication need not be so overt as an oral or written action. On the contrary, the slightest action or inaction, such as an affirmative nod or complete silence, may constitute a communication. 20

For example, suppose that Smith is speaking with Jones, her attorney, about a matter involving a recent sale of stock that is under investigation by the SEC. Jones asks Smith whether she received any confidential, nonpublic information prior to the sale of her stock, and Smith silently nods her head in the affirmative. Although no words were exchanged, this communication between Smith and her attorney is clearly protected by the privilege.

Nevertheless, a client cannot protect certain facts from disclosure simply by communicating them to her lawyer. If information may be gathered from another source besides the privileged communication, then the underlying information itself is not privileged.21 Stated differently, the attorney-client privilege “protects communications made to obtain legal advice; it does not protect the information communicated.”22 Clients and attorneys alike must bear this important fact in mind: merely conveying something to an attorney will not prevent the underlying facts from compelled disclosure, if they can be discovered from a non-privileged source.23

WHEN THE ATTORNEY-CLIENT PRIVILEGE MAY BE WAIVED

Since the client, and not the attorney, holds the privilege, the client holds the ultimate authority to assert it or waive it.24 When the client is a corporation, the privilege is commonly viewed as a matter of corporate control. In other words, corporate management or the “control group,” including the officers and directors, decide whether to assert or waive the privilege.25 If and when there is a change in the control of the corporation, ownership of the privilege is a spoil that passes to the successors; it does not remain with the former corporate management.26

The issue of waiver arises most commonly when a communication is witnessed by a third party or where the client does not intend the communication to be confidential. The mere presence of a third party will likely prevent the creation of the attorney-client privilege.

Continuing with our hypothetical characters, suppose that Smith and her stockbroker meet with Jones to discuss the suspect sale of stock. Jones represents Smith in connection with the sale, but not the stockbroker. During the course of the meeting, Smith discloses sensitive information. Under this scenario, the privilege is likely waived and the information conveyed does not enjoy protection from disclosure.

What if the communication is disclosed to a third party after a privileged exchange between attorney and client? Has the privilege been waived? Possibly. Unlike a client’s constitutional rights, which can only be intentionally and knowingly waived, the attorney-client privilege may be waived by a careless, unintentional or inadvertent disclosure.27

EXCEPTIONS TO THE ATTORNEY-CLIENT PRIVILEGE

There are some public policy exceptions to the application of the attorney-client privilege. Some of the most common exceptions to the privilege include:

  1. Death of a Client.The privilege may be breached upon the death of a testator-client if litigation ensues between the decedent’s heirs, legatees or other parties claiming under the deceased client.
  2. Fiduciary Duty.A corporation’s right to assert the attorney-client privilege is not absolute. An exception to the privilege has been carved out when the corporation’s shareholders wish to pierce the corporation’s attorney-client privilege.
  3. Crime or Fraud Exception.If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged. If, however, the client has completed a crime or fraud and then seeks the advice of legal counsel, such communications are privileged unless the client considers covering up the crime or fraud.
  4. Common Interest Exception.If two parties are represented by the same attorney in a single legal matter, neither client may assert the attorney-client privilege against the other in subsequent litigation if the subsequent litigation pertained to the subject matter of the previous joint representation.

In addition to these more traditional policy exceptions to the application of the privilege, recent events remind us that the privilege is not at all absolute. In the wake of the events of September 11, 2001, for example, Congress enacted, in swift fashion, the USA Patriot Act, allowing for, among other things, increased authority to conduct searches and monitor activity without judicial intervention.28 The USA Patriot Act led to a number of new rules and executive orders from the Bush Administration, including the widely criticized Bureau of Prisons Rule.29 This rule “authorizes the Attorney General to order the [Bureau of Prisons] Director to monitor or review communications between inmates and lawyers for the purpose of deterring future acts that could result in death or serious bodily injury to persons or property.”30 All that is required before such monitoring can begin is a “reasonable suspicion . . . that a particular inmate may use attorney-client communications to facilitate acts of terrorism.”31 Although the long-term effects of this new rule cannot be known, one is reminded that the privilege itself is not immune from the political climate in which we live.

MATTERS NOT PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE

Not all components of the attorney-client relationship are protected by or encompassed within the attorney-client privilege. For example, the existence of the attorney-client relationship or the length of the relationship are not privileged bits of information.32 In fact, the general nature of the services performed by the lawyer, including the terms and conditions of the retention, are generally discoverable.

The factual circumstances surrounding the communications between an attorney and a client, such as the date of the communication and the identity of persons copied on correspondence, are likewise not privileged. Participants in a meeting with an attorney, the length of a consultation and the documents evidencing same (e.g., calendars, appointment books) are not necessarily protected from compelled disclosure.33 As for the fee arrangement between an attorney and a client, these documents are typically discoverable, except where such discovery would produce confidential communications with the client.34

THE PRIVILEGE: CLOSING THOUGHTS

While the attorney-client privilege is firmly established as a legal doctrine that protects confidential communications between lawyers and their clients, its application is not absolute. The circumstances of the communication, its content and even subsequent actions relating to the privileged communication must be carefully considered to preserve the integrity of the privilege.

ENDNOTES:

  1. Edna Selan Epstein, THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK-PRODUCT DOCTRINE 2 (4th ed. 2001). 
  2. United States v. Grand Jury Investigation, 401 F. Supp. 361, 369 (W.D. Pa. 1975). 
  3. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 
  4. Cathryn M. Sadler,The Application of the Attorney-Client Privilege to Communications Between Lawyers Within the Same Firm: Evaluating United States v. Rowe, 30 ARIZ. ST. L. J. 859, 859 (1998). 
  5. Paul R. Rice,Attorney-Client Privilege: Continuing Confusion About Attorney Communications, Drafts, Pre-Existing Documents, and the Source of the Facts Communicated, 48 AM. U. L. REV. 967, 969-70 (1999). 
  6. Bufkin Alyse King, Preserving the Attorney-Client Privilege in the Corporate Environment, 53 ALA. L. REV. 621, 622 (2002) (citing Upjohn, 449 U.S. at 391 (quoting Model Code of Prof’l Responsibility EC 4-1 (1980))). 
  7. Selan Epstein,supra note 1, at 3. 
  8. 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2292, at 554 (McNaughton 1961 & Supp. 1991). 
  9. United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950 
  10. RESTATEMENT OF THE LAW GOVERNING LAWYERS § 118 (Tentative Draft No. 1, 1988). 
  11. For example, the Georgia Code specifically provides that “prima facie, attorneys shall be held authorized to represent properly any case in which they appear.” O.C.G.A. §15-19-7; see alsoNewell v. Brown, 187 Ga. App. 9, 369 S.E.2d 499, 501 (1988) (noting in dicta that “if an attorney signs an acknowledgement of service [on] behalf of an alleged client, the attorney is then estopped to deny his lack of authority to act”). 
  12. Randolph Evans, PRACTICAL GUIDE TO LEGAL MALPRACTICE PREVENTION 45-49 (Institute of Continuing Legal Education in Georgia, 2002). 
  13. The subject matter of the communication was the primary focus of the “subject matter” test. Under this test, courts had to determine (a) whether the purpose of the communication at issue involved seeking and rendering legal advice to the corporation, (b) whether the employee’s superior had insisted that the communication be made by the employee, and (c) whether the subject matter of the communication to the attorney was within the scope of the duties of the employee in question. Thus, under this test, if the subject matter of the communication to the attorney involved the duties of the employee to the corporation, the attorney-client privilege would cover said communication, irrespective of the corporate rank of the employee that made the communication. SeeHarper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970),aff’d by an equally divided court, 400 U.S. 348 (1971). 
  14. The “control group” was defined by courts as including those employees who were in a position of control such that they could play a substantial role in determining what action the corporation would take upon receiving the legal advice. See,g.,City of Philadelphia v. Westinghouse Elec. Corp., 210 F. Supp. 483, 485-86 (E.D. Pa. 1962). 
  15. Selan Epstein,supranote 1, at 110-13. 
  16. Mary Thompson & Bridget Rienstra,In-House Counsel . . . and the Preservation of Privilege, 35 HOUS. LAW. 21, 22 (1998). 
  17. SeegenerallyThompson & Rienstra, supra note 16; see also Amber Stevens,An Analysis of the Troubling Issues Surrounding In-House Counsel and the Attorney-Client Privilege, 23 HAMLINE L. REV. 289 (1999). 
  18. SeegenerallyStevens, supra note 17, at 303-09. 
  19. Id
  20. See,g.,United States v. Andrus, 775 F.2d 825, 852 (7th Cir. 1895) (holding that in a criminal case, silence may constitute an admission of guilt). 
  21. SeeUpjohn, 449 U.S. at 395-96 (noting that the attorney-client privilege protects only the disclosure of communications from client to attorney, not the disclosure of the underlying facts by those persons who communicated with the attorney). 
  22. Rice,supranote 5, at 979 (citations omitted). 
  23. Id
  24. Id
  25. See,g.,Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 349 & n.5 (1985) (stating that “the power to waive the corporate attorney-client privilege rests with the corporation’s management and is normally exercised by its officers and directors.”) 
  26. See,g.,O’Leary v. Purcell Co., Inc., 108 F.R.D. 641, 644 (M.D.N.C. 1985). 
  27. Id. at 263-65. 
  28. USA Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. 
  29. SeegenerallyAvidan Y. Cover, A Rule Unfit for All Seasons: Monitoring Attorney-Client Communications Violates Privilege and the Sixth Amendment, 87 CORNELL L. REV.1233 (July 2002). 
  30. Id. at 1235. 
  31. Id
  32. See,g.,Savoy v. Richard A. Carrier Trucking, Inc., 178 F.R.D. 346, 350 (D. Mass. 1998). 
  33. Selan Epstein,supranote 1, at 66-67 (citations omitted.) 
  34. See,g.United States v. Keystone Sanitation Co., 885 F. Supp 672, 675 (M.D. Pa. 1994). 
El Sábado, 8 de agosto, 2015 0:14:21

SEREMOS FAMOSOS EN  EL MUNDO

LOS SIMPSONS

LOS SIMPSONS

Como ya ocurrió   en los Simpson varios presidentes han aparecido en la serie animada, esta vez   le tocará a los mandatarios de Argentina.

 En las últimas   horas se ha dado a conocer la noticia de que el ex presidente de Argentina   Nestor Kirchner aparecerá en uno de los episodios de los Simpson como un presidente corrupto.

THE SIMPSONS FORMER ARGENTINA PRESIDENT NESTOR NK

THE SIMPSONS FORMER ARGENTINA PRESIDENT NESTOR NK

Si bien no trascendieron muchos detalles del capítulo se podrá ver al ex mandatario haciendo negocios poco “limpios” con el alcalde  Diamante de Springfield.  Matt Groening y su  equipo de guionistas han decidido incluir además a Cristina Fernandez de  Kirchner en el mismo capítulo, para ello el equipo de producción se dio a la tarea de investigar cada una de las cadenas nacionales de Cristina las que han hecho tan famosas a la presidenta de Argentina.

 “Fue grandioso tener  tanto material de donde partir”, comentó el creador de la serie animada y  adelantó que la aparición de CFK dentro del episodio será una entrevista con el personaje Kent Brockman, en la cual menciona cosas como “Nueva York” la  capital de los Estados Unidos y “Estados Unidos como el país con más estadounidenses”
 Este nuevo capítulo tiene además un condimento especial, será escrito por Conan O’Brien, unos de los mejores guionistas que han tenido los Simpson.
O’Brien declaró a los medios que nunca se había topado con un personaje político que pareciera  sacado de ficción (refiriéndose a Cristina).
LAS CHICOS MALOS DE ARGENTINA - YA FAMOSOS EN EL MUNDO

LAS CHICOS MALOS DE ARGENTINA – YA FAMOSOS EN EL MUNDO

 Así es compatriotas, seremos famosos en los Simpson, no sé si por algo bueno o malo pero la realidad es que los Argentinos tendremos nuestro propio capítulo de los Simpson.

http://www.clarin.com/politica/Entrevista-Mauricio-Macri_3_1399690038.html#.VbxOobS4EsQ.twitter

VIDEO ENTREVISTA A MACRI

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LA MEJOR OPORTUNIDAD DE ARGENTINA EN 85 AÑOS