A Georgia company’s efforts to resist disclosure of communications with its lawyer provoked a rare discussion at the U.S. Supreme Court last week regarding the importance of attorney-client privilege.
On Oct. 5, the first day of its fall term, the Court heard hourlong arguments in Mohawk Industries Inc. v. Carpenter, which asks when a party can appeal a judge’s finding that it has waived the privilege in an order releasing material for discovery. Can such an order be appealed before the trial proceeds, as an interlocutory appeal, or only after “final judgment,” when the trial is over?
Mohawk asserts that, if it can’t appeal right away, the damage of disclosure will be done, and the privilege will be weakened to the detriment of the legal system.
Mohawk’s lawyer, Randall Allen of Atlanta-based Alston & Bird, stressed the importance of the attorney-client privilege as a “key and central element of the administration of justice,” long recognized by the Supreme Court.
Allen also said that, under Court precedents, a factor to consider is whether postponing an appeal until final judgment renders the order “effectively unreviewable” because the privileged material has already been revealed. “Once that information is disclosed to your adversary, it is disclosed to the last person on earth you might want to see it,” Allen told the Court.
The dispute arose during a lawsuit brought by Norman Carpenter, a Mohawk supervisor who says he was fired because he complained that the carpeting and flooring manufacturer was hiring illegal aliens. At the discovery stage, Carpenter sought information about interviews conducted by the company’s outside counsel relating to his case. The company filed an interlocutory appeal of the trial court’s order, but the U.S. Court of Appeals for the 11th Circuit ruled against Mohawk, setting the stage for this high court appeal.
Several justices seemed skeptical that the attorney-client privilege should be protected any more strongly than other privileges or other possible grounds for appealing judicial orders.
“Mr. Allen, except for the fact that you and I are lawyers,” said Justice Antonin Scalia, “do you really think that confidentiality right is any more important to the proper functioning of society than, let’s say, the protection of trade secrets?” In jest, Scalia threw out the hypothetical of a judge ordering the release of “the formula for Coca-Cola.”
Justice Sonia Sotomayor also seemed skeptical, noting that there are already exceptions to the attorney-client privilege, which are “not going to stop people from talking to lawyers if they really need to.”
Yale Law School professor Judith Resnik, who represented Carpenter, warned the Court that, if collateral appeals such as the one sought by Mohawk are allowed, trials will be disrupted. “There will be more cases for sure, and there will be more people with comparable privileges knocking at the appellate doors.”
Justice Samuel Alito Jr., who served until 2006 on the 3d Circuit, said that collateral appeals were allowed under that circuit’s precedents, and “it didn’t seem to me that the sky was falling.”
In a colloquy with Resnik, Chief Justice John Roberts Jr. also offered a rare shout-out to the American Bar Association, which filed a brief in favor of early collateral review. “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.
Resnik replied by citing briefs on Carpenter’s side from lawyers, judges and law professors.
Roberts replied, “Oh, but the law professors aren’t the ones who deal with this question on a day-to-day basis and have to worry about going to jail.”
Tony Mauro can be contacted at tmauro@-alm.com.