Although attorney-client privilege is considered sacrosanct in the legal profession, a decision by a Missouri appellate court could potentially chip away at the rule under certain circumstances.
The Missouri Court of Appeals Eastern District ruled on Aug. 31 that a Sandberg Phoenix & von Gontard law partner’s files could be disclosed during discovery, according to media reports.
“Every attorney probably feels more strongly about that than anything and so for things that may be privileged to possibly now be disclosable if they are involved with a partner, is terrifying,” said Joplin attorney Timothy Intessimone.
Patel
Missouri Lawyers Media reported that the ruling is especially relevant when it comes to bad-faith claims.
“It gives more clarity to those attorneys who work as claims adjusters and collection attorneys that may have a dual role where they may be in a split position on what may be work product for them,” Intessimone told the St. Louis Record. “It's my understanding that the attorney for the insurance company, in this case, had looked at this to determine whether or not it was bad faith not to settle and that's where things got twisted up.”
The opinion clarified what about an attorney’s work product is protected and what's discoverable.
“The decision surprised a lot of people because we think of discovery as being fairly civil and to see one go to where it comes to the attention of the court, that's out of the ordinary in and of itself,” Intessimone said in an interview.
Sandberg Phoenix law firm CEO and chairman Bhavik Patel did not immediately respond to requests for comment.
"I've seen attorneys hire other attorneys to come in and do certain parts of a trial or help them work on things," Intessimone said. "So, I think in general, this decision applies to civil cases and I think it applies to every lawyer even family law and probate court."
Before Intessimone writes anything down in a client or partner’s file, he said he does so carefully and thoughtully.
“Everything is done in a layered approach,” he said. “If I work with another attorney or if I'm working on a case where there are multiple attorneys involved in it, we're just going to be really careful on that.”
That’s because Intessimone wants to cloak his work product as much as possible.
“If anything's written down, said, or emailed and there's a written record of it, I always anticipate that somebody else can see it, read it, hear it or understand it,” he said.