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    ShareThisReprints & Permissions Print On Appeal Attorney-client privilege applies even when lawyers act as investigators April 06, 2010 By: Tresa Baldas he
    Message 1 of 1 , Apr 6, 2010
      ShareThisReprints & Permissions Print

      On Appeal
      Attorney-client privilege applies even when lawyers act as investigators

      April 06, 2010
      By: Tresa Baldas

      he attorney-client privilege protects notes and memorandums that Sidley Austin wrote while investigating alleged sexual abuse by a music teacher, a federal appeals court has ruled.

      Handwritten notes and memoranda relating to interviews produced by Sidley Austin lawyers during their investigation is protected by the attorney-client privilege and the work-product doctrine even though the lawyers weren’t handling the lawsuit that sparked the investigation, the 7th U.S. Circuit Court of Appeals decided last week.

      Read the ruiling

      The South Berwyn School District in Berwyn, Ill., hired Sidley Austin in 2005 to offer advice and investigate allegations that the district failed to respond appropriately to claims that a teacher was molesting students for years. A civil lawsuit had been filed against the district for allegedly turning a blind eye to the alleged molestation, although Sidley Austin was not hired to represent the school in the litigation.

      The firm interviewed many school employees, took notes and reported to the school board. The plaintiffs sued to gain access to those notes, and a lower court agreed they should have the notes, concluding the lawyers were acting as investigators, not lawyers.

      A three-judge panel of the 7th Circuit disagreed. It issued its order Feb. 25, a day after oral argument, and followed up with a full opinion March 30.

      Judge Diane Sykes wrote that both the U.S. Supreme Court and other circuits have “concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege.”

      Sykes also pointed to an engagement letter between the law firm and the school district that “spells out that the board retained Sidley to provide legal services in connection with developing the school board’s response” to the sexual abuse allegations.

      The court rejected the plaintiff claims that the firm’s refusal to disclose its investigative materials was contrary to the public interest.

      “The public interest is best served when agencies of the government have access to the confidential advice of counsel regarding the legal consequences of their past and present activities and how to conform their future operations to the requirements of the law,” Sykes wrote.

      Thomas DiCianni of Chicago’s Ancel Glink Diamond Bush DiCianni & Krafthefer, who is representing the school district, hailed the ruling, saying, “I think the attorney-client privilege is always something that we defend vigorously.”

      For DiCianni, it was critical that the court did not draw distinctions between investigations by lawyers and litigation.

      “It will be difficult for courts to draw distinctions between investigations done by an attorney that is directly connected with litigation and investigations that might serve some purposes that are broader than the litigation itself,” he said. “In the end, those distinctions would become arbitrary.”

      Jon Loevy of Chicago’s Loevy & Loevy, who represents the plaintiffs, believes the firm should have been required to surrender all the documents.

      “Sidley Austin had publicly said to the parents and the school that they would make public the findings of their investigation,” he said. “And once they completed the investigation, they decided they were going to keep it secret.”

      Sidley Austin attorneys were not available for comment by deadline.’

      Tresa Baldas reports for the National Law Journal, an ALM affiliate of the Daily Business Review.

      * article is distributed for educational purposes only.

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