Attorney Client Privilege Survives Death of Client

The issue of whether the attorney client privilege survives the death of a client was discussed in class.  The following provides us with an answer to this question:

"Despite the scholarly criticism, we think there are weighty reasons that counsel in favor of posthumous application. Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be a feared as disclosure during the client's lifetime." Swidler & Berlin v. United States, 524 U.S. 399 (1998)

Prior to the 1998 Supreme Court decision a majority of courts but not all recognized that the attorney client privilege did survive the death of a client.  Should the privilege survive?

      There has been a lot of controversy brewing from the Asiana Airlines flight 214 crash-landing that broke the plane apart and burst into flames short of the runway, killing 2 and leaving 180 passengers injured. The Air Line Pilot's Association International (ALAP) says that "the federal agency handling the investigation of Saturday's passenger jet crash in San Francisco had released too much information too quickly, which could lead to wrong conclusions and compromise safety". In a statement from Monday, ALAP stated "releasing data from the flight's black boxes without full investigative information for context encourages wild speculation  about the cause of the crash". If this is the case, the public, across the globe, would have enormous doubts about the safety presented to them by Asiana aircraft, and therefore hinder their actions with choosing Asiana in their future aircraft travels. I believe it is best to complete a thorough investigation that uncovers the real causes of the crash, before disclosing the information to the public, in order to decrease false speculation.

Full article: http://www.nbcnews.com/travel/pilots-union-says-probe-asiana-crash-revealed-too-much-too-6C10582948

Gun Control

Due to the recent tragedy in Newtown, the issue of gun control has sparked major public and government interest. It is a constitutional right for every citizen to bear arms, however in the recent decade many Americans have questioned the amendment's purpose. My immediate reaction to the school shooting was to immediately implement stricter gun laws, but thought was purely driven by emotions. When the government decides to tackle a very controversial issue such as gun control, it is important for both parties to step away from emotions and focus on the proper purpose of the government. This proper purpose is to satisfy and protect the common good of the people. I personally believe by reducing the access of weapons to the public, the common good will suffer less from violent crimes. Even with an universal law banning guns there still must be accommodations for people to still acquire weapons who use them for professional purposes. Proposed accommodations are mental health screenings and older age requirements. The success of gun control is very hard to portray because the date is very limited (The Wall Street Journal). However many 1st world nations such as Japan have significantly lower violent crimes that may be linked to extremely strict gun laws (The Atlantic). In the end, I am not advocating for any extreme political position, but I do hope to see the government try their hardest to combat this obvious issue.

http://online.wsj.com/article/SB10001424127887324731304578191531343495520.html

http://www.theatlantic.com/international/archive/2012/07/a-land-without-guns-how-japan-has-virtually-eliminated-shooting-deaths/260189/

More details about Kate Middleton Hoax Call

After reading about the Kate Middleton Hoax Call that was posted in the previous entry, I decided to do more research about this issue because I wanted to know more about the criminal charges for airing the private conversation.

As far as consequential action for airing the confidential information about Kate Middleton's conditions while in the hospital, the DJ's were fired from the radio show and the radio show was entirely canceled.  Although I feel it was right to have consequences for their actions, I still can't get past the idea that the DJ's are the only ones that have prison time on the line....Aren't the program producer, program manager and station manager also at fault for the aired segment since they were the one's who granted permission to the DJ's to go through with the prank call? 

Also, there is uncertainty whether the radio station 2DayFM or its parent company Southern Cross Austereo should take responsibility for airing the call; neither station has taken the blame.  The CEO made a statement to the press after Jacintha Saldanha had committed suicide after the prank phone call.  His statement clarified that Southern Cross Austereo called the hospital a total of five times before the segment started in order to receive permission to air the prank over the radio.  The hospital did not answer or return any of the phone calls and claims there are no records for these attempts.  In addition, the article notes that the legal aspect of this unfortunate event lies on whether a reasonable person would consider attempts for permission, granted permission.  According to the privacy law expert that was mentioned in the article, these attempts will not provide an adequate defense.

Austereo has repeatedly claimed that airing the phone call did not violate any laws and that the company did its research prior to conducting the segment by undergoing a thorough internal legal review before the segment was broadcasted.  Mark Pearson, a media law expert that commented about this story said that all the parties involved with the segment had to grant permission to have the material air on the radio show in order to not break the law.  Again, we run into the question of whether a reasonable person would view the attempted phone calls as sufficient permission from the hospital.

The legal issues surrounding this story are continuing to be investigated.  Since there was intense legal review prior to this segment taking place and the company attempted to seek permission from the hospital five different times, it only seems like they knew that something bad could come out of this segment.  Unfortunately for radio station 2DayFM, this prank has cost a person's life.  Police have still not disclosed the cause of Jacintha Saldanha's death but it is speculated that it was related to stress from the prank call. 


More information can be found at this link:
http://www.huffingtonpost.com/2012/12/11/2day-fm-kate-middleton-illegal_n_2275139.html

Legal Issues Surrounding the "Royal Hoax" Call

There has been an enormous amount of publicity surrounding the Kate Middleton’s pregnancy. Unfortunately, there was something tragic that happened in England this past week. Two Australian radio announcers made a prank call to a British hospital where Kate was getting treated. Mel Greig and Michael Christian pretended to be the Queen calling to speak to Kate. The nurse, Jacintha Saldanha that spoke with the DJs was easily tricked by this prank phone call. Greig and Christian aired this phone call on the radio. This embarrassing call had gained attention from news sources all over the world.

Kate’s nurse was found dead after this prank call was aired last week. After further investigations, the police have concluded that Jacintha committed suicide. There are legal issues that are involved with this situation. Although the DJs will face Australian laws, there are similarities between the law in Australia and the US. One similarity is that it is a crime to record a phone call without the other person’s consent and knowledge. All parties to the call must consent to the recording, which is consistent with the laws in 38 states. The DJs as well as those individuals behind the scenes could face up to 5 years in prison for this.

The bigger legal issue is whether or not these two DJs could be held legally responsible for the death of this nurse. This would probably be a civil case of negligence. The nurse’s family would have to show that the death of this nurse was “reasonably foreseeable” given this prank phone call, which is a causation issue. As we learned in class, this can be very hard to show.

This link fully explains what happened. Lisa Bloom, a legal analyst, explains the legal issues surrounding the case in an interview on the Today Show this morning. 

http://worldnews.nbcnews.com/_news/2012/12/10/15811889-djs-speak-out-say-theyre-heartbroken-over-death-of-nurse-in-royal-hoax-call?lite

Fear of Litigation Adversely Affecting the Fine Art Market

In the fine art market, plenty of art experts have been timid to authenticate artwork in fear of possibly being litigated. Art scholars are scared that if they authenticate a piece of art that turns out to be the product of forgers, the authenticator could be held liable and get sued for millions of dollars. Many art institutes have entirely eliminated their art authentication division to avoid jeopardizing the health and well-being of their foundation or organization as a whole.

As a result, the price for pieces of art that have been authenticated by an art authentication board fetches an exponentially greater price than unauthenticated ones, since it increasingly has become a rarity. These authenticated pieces of art’s purchase price are thus greatly inflated and the ones that are indeed genuine but not authenticated, for whatever reason, have cost the owners up to millions of potential profit.

I consider this article to be an excellent example of why a fundamental understanding of the law and its impact on the business environment is essential for business students. Alluding to the fine art market, the article demonstrates why it is essential for business models to take into account legal concerns in implementing a strategy or operation.

http://economist.com/news/business/21567074-fear-litigation-hobbling-art-market-collectors-artists-and-lawyers

POLICE: Alleged Jefferson Mall shoplifter took requests

LOUISVILLE, Ky. (WDRB) -- Looking for some new threads? Police say they've arrested a shoplifter who was taking requests.

It happened at the Jefferson Mall on Thursday. Police say they were called to the mall after 29-year-old Kim Starks and 48-year-old Ronald Murrell were repeatedly seen walking out of the mall with a "large amount" of property that had not been bagged.

At one point, while the pair was in the Childrens' Place, they noticed they were being watched by security and immediately left the mall, according to arrest reports.

But police were already waiting outside, and watched the suspects get into a 2005 blue Hyundai and drive away.

Police say they stopped the car for speeding -- they were allegedly doing 45 mph in a 35 mph zone -- and for failing to use a turn signal.

As police approached the vehicle, they allegedly detected the "strong odor of marijuana." Officers allegedly found two bags of marijuana, $627 in cash and a "large amount" of merchandise that was not tagged. Police say that merchandise included $2,753 worth of clothes.

The rest of the article can be found at http://www.wdrb.com/story/20287644/police-alleged-jefferson-mall-shoplifters-took-requests?hpt=ju_bn4

When learning about false imprisonment under intentional torts, there is a shopkeeper's privilege where employees have a right to detain people in a reasonable and safe manner. However, we talked in class about how it would be safer to call the police since employees are not trained in these situations. This is a real world example where the employees were smart and decided to give the responsibility to the police to find that it all worked out in the end, although, not for the shoplifters. 

-Jenny Lahitte