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The Friday Whine by Brian L. Tannebaum 6/9/17

Posted on June 9, 2017 in

Greetings, The Friday Whine is a casual email to friends and colleagues and contains three things: An ethics update, a legal profession update, and wine recommendation. If you see text in blue, it is a link to an article or information.


Due Process Remains Notice, And An Opportunity To Be Heard

In a fascinating civil case regarding stolen DNA, attorney William Douberley had a client that was sued for defamation. There was an order compelling him to answer questions involving attorney-client privilege. As any ethical lawyer would do, Douberley of course refused and asserted privilege, which triggered the issuance of the order.

The defendants argued privilege didn’t apply due to the crime-fraud exception, which applies to attorney/client communications in furtherance of a crime or fraud.

Douberley appealed argued several issues, including that he did not receive notice and was not present at the hearing on the motion to compel.

He was correct, and the Fourth District Court of Appeal agreed that due process was violated and stated:

Florida courts have held that due process requires an evidentiary hearing to determine applicability of the crime-fraud exception.

The order was quashed and the case remanded.

In law school, lawyers are taught that due process is two things – notice, and an opportunity to be heard. In a Palm Beach County Case, the Fourth District Court of Appeal reaffirmed that.

 Legal Profession 

The Incredible Work Of Jim Comey’s Lawyer

Have you heard about Jim Comey’s Lawyer? Did you see his lawyer sitting with him during his testimony yesterday? Catch his interview on television?

Who is Jim Comey’s lawyer? What’s his or her name?

We haven’t heard a word. This leads you to believe he has no lawyer.

But he does.

It wasn’t announced when he hired a lawyer, and since then you’ve never seen or heard about the lawyer.

This is pure brilliance.

There is zero doubt that Jim Comey has consulted with a lawyer, several times. And while I constantly deal with potential clients who ask “but won’t I look guilty if I hire a lawyer (where my answer is usually “you already look guilty”), the smartest decision that was made was to keep silent about all of it. Jim Comey needed to go through this process without anyone standing next to him, because of who he is (and because he is not under any legal jeopardy as long as he tells the truth), and the subject of his testimony. It was a strategy that was well-executed.

It was never mentioned that Jim Comey had no lawyer sitting with him. We would only be discussing this if he did.


The Perfect Summer Party Wine (Gift)

A good friend invites you over this summer. Whether they love wine, this item, is likely to get you another invite.

Forget the cheap white wine, bring these.

And if you must bring cheap white pool-sipper wine, I just tried this. I hate chardonnay, and found this to be very above-average hotel wine. It’s not available everywhere, but if you get to the wine shop in the link, you’ll find some of the best wine around for a small local shop.