ML20107J009

Brief in Support of Lipinsky Privilege.Memorandum & Calendar Diary Notes Made by Lipinsky Re Confidential Communications W/Attys Fall within atty-client Privilege & Are Not Discoverable.Related Correspondence

ML20107J009
Person / Time
Site:	Comanche Peak
Issue date:	11/04/1984
From:	Gallo J ISHAM, LINCOLN & BEALE, OLIVER B. CANNON & SON, INC.
To:
Shared Package
ML20107H970	List: ML20107H964 ML20107H989 ML20107J009 ML20107J014
References
OL-2, NUDOCS 8411090343
Download: ML20107J009 (7)

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11/5/84 CPL ATED CORRESFONDIt!Cf CC METEg UNITED STATES OF AMERICA WC NUCLEAR REGULATORY COMMISSION

-BEFORE THE ATOMIC SAFETY AND LICENSING BOA -8 A0:57

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In.the. Matter of

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) Docket Nos. 50-445-OL2' TEXASiUTILITIES ELECTRIC. ) 50-446-OL2 COMPANY, et al. -

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'(Comanche-Peak Steam Electric ) (Application for Station, Units 1 and 2)' ) Operating License)

BRIEF IN SUPPORT

-OF LIPINSKY PRIVILEGE On October 18 and 19, 1984, counsel withheld one

memorandum dated January 9, 1984, and calendar diary notes for November 30, 1983 and December 1 and December 8, 1983

. authored by Mr. Joseph J. Lipinsky from the discovery materials produced._ pursuant to the Atomic Safety and Licensing Board's (Licensing Board) October 4, 1984

' subpoena duces tecum. Attorney-client privilege was the ,

basis set forth in counsel's letters for withholding the documents.- The attorney-client privilege being asserted

-by-Mr. Lipinsky is based'on his representation.by-Messrs.

Reynolds and Watkins of Bishop,-Liberman, Cook, Purcell i Reynolds in

connection with a. deposition taken.by NRC's Office of Inspection and Enforcement on January 4, 1984.

r The Licensing Board requested a brief supported

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L by.an appropriate affidavit establishing the basis for the phO

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L a'ttorney-client' privilege being asserted- by Mr. Lipinsky.

/ The.timalforifiling:the.brief was set for November.5,

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1984. .The LicensingJBoard' expressly requested advice as to iwho' retained Leounsel for ' Mr.. Lipinsky and who paid ~ counsel's

. fees. - This Brief responds to tdut Licensing Board's request.

The attorney-client. privilege is_one of the basic 4

tenets of modern law.. It shields. confidential communications 4 between an attorney and client made'for the purpose of

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ffurnishingfor obtaining professional:1egal' advice and n assistance. .McCormick,.' Evidence,'S 95; 8 J..Wigmore, m ,

' l Evidence, SS 2292, 2311 (McNaughton rev. 1961). .The privi-lege' " rests on the need for the advocate and counselor to t know :all; that ' relates to the client's reasons for seeking -

. representation:if the1 professional! mission is'to be carried

" ' out." Upjohn Co.; v. United States , . 449. U.S. 383, 389 (1981),

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quoting ~ Trammel v. United States', 445 U.S. 40, 51 (1980).

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The often-stated ' prerequisites - for a : valid assertion of the privilege are--(1) the asserted holder of s . ..

the' privilege is or sought to become a client; (2) the person

.to~whom the communication was made (a) is a member of a bar of

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a , court and -(b) in connection ~with this communication' is i

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' acting asLa lawyer;~ (3) ~ the cormtunication relates to a fact of which'the Lattorney was finformed (a) by his client-(b)

_w ithout the presence of strangers' ~(c) for the purpose of

.securingj primarily either (i)- an opinion on law or (ii) legal ~ services or. (iii) assistance'in-some legal proceedings

- and .not ;(d)- for the purpose of -commiting a crime or tort; and (4)Jthe privilege _ has been- (a) claimed and (b) not

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.w aived by-the' client. In re LTV Securities Litigation, 89

~F.R.D. 595, 600 .(N.D. Texas,1981) ; United -States .v. United

, . Shoe Machinery Corp., 89-F..Supp. 357, 358-59 (D. Mass 1950). See 8/J. Wigmore, Evidence,-S 2292 (McNaughton rev.-

1961).

= With respect ~ to -(1) above, 'the client's reasonable

- understanding of his relationship with the attorneys is the s

- controllinglfactor. E.F. Hutton &,Co,. v. Brown, 305 F.

< Supp. 371, ' 38 9 '(S.D.- Texas 1969) ; United. States v. Ostrer,

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422-F.JSupp.'93, 97 (S.D.N.Y.^1976). In addition,.the

,- _ relation of attorney _ and client may be inferred from the conduct of the parties. It is not dependent upon-the pay-ment of- a fee, nor ~ upon the execution of a formal contract.

E.F. Hutton, 305'F. Supp. at 388; United States v. Costanzo, 625?F. 2d 465,.468 (3rd Cir. 1980). Further, it is not uncommon for corporate _ counsel to. represent an individual

- corporate officer when he'is sued as a result of actions he l '

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.a Accordingly, Lhas taken!within the ambit of his official duties.

whenithis occurs,f corporate ' counsel becomes counsel for the

[ individual officer as well', even if the: corporation pays his

-ientireifee.- E;F.'Hutton, 305 F. Supp.~at 388. See In re Grand r _ Jury' Subpoena Dated Julp 13, 1979, 478'F. Supp. 368 (E.D. Wisc. 1979)~.

rV " ~ ~ With respect' to (3) above, the privilege extends

. both' toi the substance of: the client's communication as well asfthe 'atitorney's advice in response thereto.

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In the Matter o Fischel,~557 F. 2d 209, 211 (9th Cir. 1977).

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privilege. attaches to a? written' communication just as it would: to - an oral communication. : Upjohn Co. v. United States,=449-U.S. 383,- 396-97:-(1981); 2 J. Weinstein, Evidence / par. 503 (b) (03) at ' 503 -38 (1977).. The privilege

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Talso encompasses summaries-of meetings, where'the substance fof the meetings-~would.be covered by the attorney-client i privilege. :Natta v.'Z1etz, 418 F.2d~633, 638 (7th Cir. 1969).

383 (1981) (notes of -

See:Upiohn'& Co.-v.-United States, 449 U.S.

Tinterviews between.' employees of corporation and counsel

' protected by: attorney-client-privil'ege).-1/

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1[ The' attachment of the attorney-client privilege to the communication, including documents, does not extend to the underlying' facts by those who communicated with the.

attorney.. Upjohn,'449 U.S. at 395. As the Court there noted,:"The client cannot be compelled to answer the question,What did you say or write to the attorney?'

-(footnote. continued on next page) i m$.

o In this case, Messrs. Reynolds and Watkins and the l firm of Bishop, Liberman, Cook, Purcell & Reynolds were retained by Oliver D. Cannon & Son, Inc. to represent Mr.

Lipinsky, an employee of the company. (Affidavit of Joseph J. Lipinsky, attached hereto as Attachment 1, 1 4.) Mr.

Lipinsky accepted them as his counsel. '(Affidavit at 11 2-3.)

In the course of their representation of him, there were confidential communications between Mr. Lipinsky and his counsel for the purpose of securing legal advice.

(Affidavit at 1 5.) The documents in question, a memorandum and notes prepared by Mr. Lipinsky of these communications, were based on and would reveal these confidential communica-tions. (Affidavit at 1 5.) No action has been taken by Mr.

Lipinsky indicating a waiver of the privilege. Accordingly, based upon the above-stated legal principles, there can be no doubt that the attorney-client privilege attaches to the documents in question. The fact that Mr. Lipinsky's counsel also represents Texas Utilities, for whom Mr. Lipinsky

-1/ (Continued) but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication with his attorney." Id. at 395-96, quoting Philadelphia v.

Westinghouse Electric Corp., 205 F. Supp. 330, 831 (E.D.

Pa. 1962). Accordingly, a ruling that the documents in this case are privileced does not prevent inquiry into facts that may be within Mr. Lipinsky's knowledge.

Although it may be more convenient to obtain the documents, as the court stated in Upjohn, such considerations of convenience do not overcome the policies served by the attorney-client privilege. 449 U.S. at 396.

e provided consulting services, in no way attenuates the privilege. -2/ An attorney may represent two clients on a ,_

single transaction so long as the attorney discloses the consequences of the joint representation to all of his clients, and all parties as well as the attorney consent. E.F. Hutton, 305 F. Supp. at 388. If the clients have interests adverse to each other, the potential for disqualification may exist, but\

the established attorney-client relationship is not i eviscerated. See E.F. Hutton, 305 F. Supp. at 392-400. The 4 confidential communications made by each client to the attorney during the period of representation would be covered by the attorney-client privilege.

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If clients represented by the same attorney have a common interest, not only are their individual com-munications to the attorney privileged, but communica-tions in the presence of the other clients with the common interest are also privileged. Sneider v.

Kimberly-Clark Corp., 91 F.R.D. 1, 8 (N.D. Ill. 1980);

See United States v. McPartlin, 595 F.2d 1321 (7th Cir.)

cert. denied, 444 U.S. 833 (1979); 2 J. Weinstein, Evidence, par. 503 (b) (06) (1977). Courts have commonly applied this privilege to parties with " common interests" even if those interests were not compatible in all respects. See McPartlin, 595 F.2d at 1337; Weinstein, supra, 503-60. In addition, while a common legal interest has been held to be necessary to support the extension of the privilege, Sneider, 91 F.R.D. at 8, the existence of common business interests as well in no-uay-dafcat: the privilegc. SCM Corg. v. Xerox Corp. ,

70 F.R.D. 508 (D. Conn. 1976.)

D The memorandum and calendar diary notes made by Mr.,Lipinsky of the confidential communications with his attorneys clearly fall within the attorney-client privilege and, as such, are not discoverable.

Respectfully submitted, W. . h $

Jpfeph ,Ga;.lo ,

Munsel to Oliver B. Cannon &

Son, Inc. , Joseph J.

Lipinsky and John J. Norris ISHAM, LINCOLN & BEALE 1120 Connecticut Avenue, N.W.

Suite 840 Washington,.D.C. 20036 (202) 833-9730 DATED: November 4,1984 w_