‘Constand v. Cosby’ shows skillful application of attorney-client privilege, and provides important lessons for everyday cases

'Constand v. Cosby' shows skillful application of attorney-client privilege, and provides important lessons for everyday cases 2

As any attorney will tell you, disputes over the application and scope of the attorney-client privilege arise often in everyday lawsuits that are of interest only to the parties involved. But they also apparently arise in high-profile cases involving celebrity defendants.

The case of Constand v. Cosby is a perfect example. In this case involving comedian Bill Cosby, Judge Eduardo Robreno of the U.S. District Court for the Eastern District of Pennsylvania was called on to apply the attorney-client privilege in a tawdry case where the plaintiff accused Cosby of sexual assault and defamation. Robreno’s resolutions of the parties’ disputes over attorney-client privilege provide guidelines that are equally applicable in cases with less notoriety, but with no less importance to the participants.

In the Cosby case, the disputes over the attorney-client privilege percolated during the depositions of Cosby and Andrea Constand, his accuser. Specifically, Cosby refused to answer questions related to negotiations that one of his attorneys had with The National Enquirer. Likewise, Constand refused to answer questions about initial inquiries she had with lawyers whom she ultimately decided not to retain. The principles that Robreno applied to each participant’s situation are skillful examples of resolving the parties’ disputes over the attorney-client privilege.

Some key lessons that attorneys can take from the Cosby case include:

• Relevance of the communication at issue does not defeat privilege

Constand claimed that the communications related to Cosby’s attorney with The National Enquirer were relevant to her defamation claim and thus were not protected. The court held that relevance, of course, is not determinative of the applicability of the privilege. Many discussions between client and counsel contain information that is relevant to litigation or potential litigation. The evidentiary relevance of such communications is, however, utterly irrelevant to determining whether the attorney-client privilege protects such communications from disclosure.

•Privilege protects communications with counsel, not the facts communicated

The court held that, while Cosby’s communications with his attorney were eligible for protection, the facts that may have been communicated in the conversation were not protected. For instance, assume hypothetically that during a confidential conversation with his attorney, Cosby told him that he had sold his story to The National Enquirer. Under Robreno’s decision, Cosby, if asked whether The National Enquirer paid for his story, would be required to respond that the tabloid had done so, notwithstanding that it was a fact that he communicated to his attorney. On the other hand, the question “What did you say to your attorney about any payment from The Enquirer?” would be an impermissible intrusion on the privilege. Constand would be entitled to know about such a payment to the publication, but would not be entitled to know whether or not Cosby communicated that fact to his lawyer.

• Burden is on the party challenging privilege to establish crime-fraud exception

Constand argued that the crime-fraud exception to the privilege applied to Cosby’s communications with his attorney. The Court held that the burden to establish the exception was on Constand, and that she had failed to meet that burden.

• Privilege can apply prior to attorney’s retention

Cosby argued that Constand’s communications with the lawyers, whom she later decided not to hire, were not privileged. Robreno disagreed.

He held that the record demonstrated that Constand contacted the attorneys with the intent to seek legal guidance. Therefore, the privilege applied even though she ultimately did not hire the lawyers, and her testimony had suggested that she may never have intended to hire them.

• Communication must be for purpose of obtaining legal advice

Cosby argued that the privilege did not apply because Constand was not seeking legal advice from the lawyers. Robreno agreed that the privilege only applies to communications by a client (or potential client) seeking legal guidance from an attorney. However, the court held that, based on the record, Constand was seeking legal guidance from the lawyers, and thus the privilege applied.

• Privilege directly protects only communications from client to counsel, not counsel to client

A little-recognized nuance of the attorney-client privilege is that, strictly speaking, it applies only to communications that flow from client to counsel. Communications from counsel to client are protected only if their disclosure would reveal privileged client-to-counsel communications.

Experience indicates that judges liberally construe the scope of the derivative protection afforded to counsel to client communications. For instance, in this case, Robreno held that the substance of counsel’s statements to Constand were protected because those statements would necessarily be based on, and reveal, what she had said to the lawyers.

• High-profile case, everyday lessons for attorneys and clients

These principles, though taken from an unusual case, are great examples of how attorney-client privilege would apply in everyday scenarios. These include a corporate executive’s discussions with in-house counsel, or the timing and circumstances of personal injury plaintiff’s efforts to retain counsel. The lesson for lawyers facing such challenges is that familiarity with the nuances of attorney-client privilege can help a client preserve the protection the privilege provides or enable a party to obtain helpful information from a careless adversary.

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