Friday, March 30, 2018

So, You’ve Decided to Hire a Lawyer: Where Does Your Spouse Fit In?

So, you are having issues at work and want to consult a lawyer.  Because hiring a lawyer is a new experience for many, it can be difficult explaining to a stranger what is going on, and the commitment to hire a lawyer can be expensive.  Certainly, it can be comforting to have your spouse, your life partner, in that consultation with you for moral and other support.  It is important to understand, however, that a spouse’s presence in that meeting can waive the attorney-client privilege, making everything you and your spouse tell the lawyer potentially discoverable.  Is the comfort worth the risk?

To foster the harmony and sanctity of the marriage relationship, the Supreme Court has recognized two types of spousal privileges (also referred to as marital privileges):  the communications privilege and the testimonial privilege1.  The communications privilege protects private communications between spouses, which are generally assumed to have been intended to be confidential.  This privilege, however, only applies to confidential communications.  If the communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential, it is not privileged.  Similarly, communications between spouses made in the presence of a third party are usually not privileged because they were not made in confidence, i.e., kept between the spouses.  For example, communications between spouses made in the presence of their children, who are old enough to understand, or other family members are not privileged.  In fact, the Supreme Court held in Wolfle v.United States  that a letter written by a husband to his wife was not protected by the spousal privilege because the husband had dictated the letter to a stenographer, who then transcribed it.  Because the husband voluntarily disclosed the communication to the stenographer—a third party—its confidentiality was lost

The attorney-client privilege is this country’s oldest confidential communications privilege.  This privilege protects confidential communications between a client and his or her attorney made for the purpose of obtaining legal representation.  The purpose of this privilege  is to encourage clients to make full disclosure to their attorney (or prospective attorney)—free from any concerns of possible consequences resulting from the disclosure.  Thus, this privilege is for the personal benefit and protection of the client, and no one else.

Does the presence of your spouse or attorney during a communication affect the privilege?  Whether a communication made by a client in the presence of the attorney and the client’s spouse is privileged depends on which state you are in.  Specifically, courts in Pennsylvania and Colorado have protected both privileges when they intersect, while New York courts have held that both privileges are waived.  In other jurisdictions, this question remains unresolved.  Courts do agree, however, that if disclosure to a third party is reasonably necessary to accomplish an attorney’s scope of work, the attorney-client privilege is not waived.  For example, the presence of an outside party with relevant expertise, e.g., an accountant or an interpreter to further the client’s legal representation, does not waive this privilege.  In determining whether the attorney-client privilege applies to communications involving a third party, courts will consider 1) whether the client intended the communications to remain confidential and 2) the precise role of the third party.

Although the attorney-client privilege may protect certain third party communications, it is not an absolute privilege.  Specifically, a party may waive—intentionally or by mistake—the protection of the privilege.  Whether the disclosure of a single communication waives the privilege for all communications regarding the same subject matter, e.g., the client’s termination, or only with respect to the communication actually disclosed depends on the facts of the case and the particular court’s approach to the scope of the waiver.

As Colorado’s highest court aptly observed, “the effect of a spouse’s presence on acommunication between attorney and client is not entirely clear.”   Thus, the safest course of action for clients is to keep attorney-client communications truly confidential—that means excusing a spouse from any sensitive discussion with an attorney to ensure that the attorney-client privilege is preserved.


This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.




1 In a criminal case, the spousal privilege protects the defendant’s spouse from being forced to testify against him.  For this immunity to apply, the defendant and the spouse witness must be currently married at the time of the prosecution.  This privilege, however, may be waived by the witness spouse if he or she chooses to testify.

Friday, March 16, 2018

Sexual Harassment within the U.S. Forest Service

Recent news reports have exposed an insidious culture of harassment and retaliation within the U.S. Forest Service, an agency within the U.S. Department of Agriculture. Female firefighters have had to deal with everything from rape while on duty, to constant exposure in the field to explicit pornography, to derogatory comments on their appearance and personal lives, all while managers either committed the abuse, or looked the other way.  Shockingly, these discriminatory behaviors are not isolated incidents, but are endemic within the Agency.

Stories relayed by women demonstrate that the culture of discrimination extends beyond sexual harassment to a general gender bias within the Agency. For example, one of the women, Abby Bolt, realized that she was being treated differently than her male coworkers in terms of work hours and duties after she became a single parent in 2014.  She filed an EEO complaint alleging gender discrimination and, almost immediately, the retaliation and hostile work environment intensified. Her managers took away the duties critical to her career advancement and switched her office location to one that doubled her commute. Her supervisors also started disciplining her for minor infractions – incidents that would not incur a similar rebuke if committed by a male coworker. This past fall, anonymous, disparaging notes were left in her office mailbox and someone scrawled “QUIT” on the windshield of her car parked in a Forest Service lot.

We represent Ms. Bolt and, as I told the Washington Post, she, like many other women throughout the Agency, did exactly what she was supposed to – she took her issues up the chain-of-command, she got the union involved, and she contacted the EEO office.  Yet, at every single stage, both the Forest Service (and its parent Agency, Department of Agriculture) dropped the ball and refused to rectify the situation.

After these stories surfaced, attention turned to the Chief of the Forest Service, Tony Tooke.  It was soon discovered that prior to his appointment as Chief, Mr. Tooke had been under investigation for having inappropriate relationships with subordinates while working in Forest Service leadership.  This conduct did not affect his appointment.  However, in the aftermath of these reports, Mr. Tooke resigned within a week. The Forest Service quickly replaced Mr. Took with a female veteran of the Agency, Victoria Christiansen, but it is not yet clear what lasting changes will be made to improve the working environment of Ms. Bolt and the other women whose careers have been darkened by this despicable behavior.

Abby Bolt is represented by Kalijarvi, Chuzi, Newman, and Fitch. If you have concerns about workplace sexual harassment or gender discrimination and would like to speak to one of our attorneys, please call 202-331-9260 to begin our intake process, or submit your legal issue here.

By Sarah Martin

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Tuesday, March 6, 2018

Nondisclosure agreements for Hill interns set a double standard compared with Congressional mandate for executive branch and paid Hill employees.

On March 5, 2018, Vox reported that some Capitol Hill interns in Congress—many of whom are unpaid—have been asked to sign nondisclosure agreements. So far, over 20 unidentified interns reported that they had signed the agreements. Two of the agreements quoted in the article are so broad that they do not even allow the reporting of incidents of harassment, discrimination, or other abuse. Without the protection to do so, any intern’s report of harassment or abuse–of either an intern or an employee–could be considered a breach of the nondisclosure agreement with a congressperson’s office and lead to the intern’s removal from the internship without any consequence.

According to Vox, one Congressional intern’s confidentiality agreement provides:
I understand that as an intern in the Office [redacted] I may have access to sensitive and/or confidential information, including, but not limited to, information designated as confidential or secret by the government, matters involving the personal and professional lives of the Senator or employees of the Office, information about the personal lives of constituents, internal legislative strategy, and internal operations of the Office. I understand that the disclosure of such sensitive and/or confidential information outside the Office could breach my duties as an employee of the Office. Accordingly, I represent and warrant that during and following my employment with the Office I will not disclose such sensitive and/or confidential information outside the Office unless I am required by my supervisor to do so as part of my duties as an intern of the Office. Further, I represent and warrant that I will not take or use such sensitive and/or confidential information for personal gain or advantage or take any action that would create a conflict of interest both during and following my employment with the office.
This appears to be yet another instance in which Congress’ regulation of its own employees is in stark contrast to the rights it provides to Executive Branch employees and even some of its paid employees. Since the implementation of the merit system protections for executive branch employees in 1979, Congress has prohibited the very type of conduct for federal executive branch managers that its own members (or supervisory staff) now may have the authority to take with impunity. Under 5 U.S.C. § 2302, which protects “whistleblowing” by executive branch employees, Congress has allowed executive branch employees to make protected disclosures, which include information the employee or applicant “reasonably believes” evidences “any violation of any law, rule, or regulation . . . [or] abuse of authority. . . .” 5 U.S.C. § 2302(b)(8).

Section 2302 also defines several “prohibited personnel practices,” which in general proscribe certain actions that, if taken against an Executive Branch employee, can result in discipline of the offender. Among these practices is a provision that prohibits any attempt to “implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: ‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to…(2) communications to Congress….’” 5 U.S.C. §2302(b)(13). If that statement isn’t clear enough, Congress added the following:
This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress.
(emphasis added).

Even more significantly, these Agreements required of unpaid interns ignore totally the events of the past year, during which the public learned that several Congressmen who were credibly accused of sexual harassment negotiated settlements with their employee/accusers. These settlements included nondisclosure provisions, and in most instances, the settlement amounts were paid by taxpayers. In February 2018, the House passed amendments to the Congressional Accountability Act of 1995 to give employee victims the ability to pursue claims against Congress members. According to Speaker Paul Ryan in January 2018, the new Act
ensures that victims of workplace harassment have the resources they need to get the justice they deserve. No staffer or member should ever feel unsafe in public service, and this bill will help make that a reality.
It is not clear how Ryan’s statement can be reconciled with the nondisclosure agreements. Moreover, the amendments to which Ryan referred apply only to paid Congressional employees; as noted above, while each Congressional office has the discretion to pay its interns, most interns are unpaid.

Nondisclosure agreements, used appropriately, can protect truly private information that should not be publicly released. Unless these agreements are modified, however, they also protect behavior that should be disclosed and has no place in public life.

By Puja Gupta.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.