Filed: Mar. 16, 2001
Latest Update: Feb. 21, 2020
Summary: 5, Ogden argues that Dickstein merely intended these, engagement letters to protect certain documents from discovery, by the efficacy insurers but it has cited no respectable, authority for this kind of limited or nominal attorney-, client privilege, and we dismiss the notion out of hand.interests.
United States Court of Appeals
For the First Circuit
No. 99-1788
FEDERAL DEPOSIT INSURANCE CORPORATION, AS SUCCESSOR IN
INTEREST
TO NEW ENGLAND MERCHANTS LEASING CORPORATION, ETC.,
Plaintiff, Appellee,
v.
OGDEN CORPORATION, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
James W. Stoll, with whom M. Frederick Pritzker and Brown,
Rudnick, Freed & Gesmer were on brief, for appellants.
Thomas C. Bahlo, with whom Ann S. DuRoss, Assistant General
Counsel, Robert G. McGillicuddy, Supervisory Counsel, R. Alan
Fryer, and Peabody & Arnold LLP were on brief, for appellee.
February 7, 2000
SELYA, Circuit Judge. The district court ordered a law
firm, Dickstein, Shapiro, Morin & Oshinsky, LLP ("Dickstein"),
not itself a party to the underlying action, to produce
documents that the appellants, Ogden Corporation and Ogden
Martin Systems of Haverhill, Inc. (collectively, "Ogden"), claim
are within the attorney-client privilege. The appellee, Federal
Deposit Insurance Corporation ("FDIC"), asserts that the so-
called "joint client exception" trumps the privilege and, thus,
legitimates the order. After providing necessary context,
surmounting a jurisdictional obstacle, and charting the
parameters of both the privilege and the exception, we affirm
the turnover order.
I. BACKGROUND
In 1978, Citicorp North America, Inc. ("Citicorp") and
New England Merchants Leasing Corp. ("NEMLC") formed a general
partnership ("SBR Associates") to develop a refuse-to-energy
facility in Haverhill, Massachusetts. Each nominated a wholly-
owned subsidiary to serve as a general partner: CIC Omega
Lease, Inc., for Citicorp, and NEMLC Alpha, Inc., for NEMLC. In
the early 1980s, the partners (hereinafter, with their parents
and successors, sometimes collectively called "the banks")
designed and built the facility and leased it to an independent
operator, Refuse Fuels, Inc. ("RFI"), on condition that RFI
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purchase insurance policies ("the efficacy insurance") to
protect against operational glitches leading to shortfalls in
revenue.
The hedge proved prudent; from the moment that the
facility went on line, it was plagued with problems. In an
effort to protect their investment, the banks terminated the
arrangement with RFI and brought Ogden into the venture. The
details of the transaction are unimportant at this juncture,
save to say that by virtue of a series of complicated
agreements, Ogden acquired the banks' interests in SBR
Associates and assumed sole control of the business on December
23, 1986.
The operational difficulties that the facility
encountered had given rise to claims under the efficacy
insurance, and the parties sought to tie up this loose end.
They entered into a specific agreement ("the restated assignment
agreement") with regard to those claims. Under that agreement,
Ogden was to direct the recovery effort against the efficacy
insurers and pay portions of the realized proceeds (net of fees
and expenses) to the banks. Betimes, Ogden would keep the banks
apprised of progress. Finally, the agreement contained a
mechanism whereby the banks could redeem Ogden's interest and
take direct control of the recovery effort should Ogden wish to
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consummate a settlement with the efficacy insurers that the
banks deemed unacceptable.
Ogden retained Dickstein to handle the claims against
the efficacy insurers. Meanwhile, it continued to operate the
Haverhill facility, incurring additional losses (which furnished
a basis for further insurance claims). The facility shut down
sometime in 1990. On January 6, 1991, NEMLC's parent company,
Bank of New England, N.A., was adjudged insolvent, and the FDIC
was appointed as receiver (thus becoming, in effect, successor
in interest to NEMLC and NEMLC Alpha).
By mid-1996, Dickstein had recovered $18,700,000 from
the efficacy insurers. On August 2, 1996, a Dickstein partner,
Leslie Cohen, wrote to the banks, notifying them of their
allocable shares of the funds collected. Both Citicorp and the
FDIC protested the proposed allocation, arguing that they were
being shortchanged and that the terms of the restated assignment
agreement were not being followed. Each demanded substantially
more money.1 Ogden balked. Dickstein continued to prosecute the
underlying litigation — at the time the parties submitted their
appellate briefs, the total amounts recovered on the insurance
1The crux of the dispute appears to be whether, under the
restated assignment agreement, the parties are to share only the
proceeds of claims accrued against the efficacy insurance as of
the closing date of their transaction, or also the proceeds of
claims that arose thereafter.
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claims exceeded $60,000,000 — but it refused to become entangled
in the internecine squabble over the allocation of the proceeds.
Citicorp and the FDIC sued Ogden in the district court
for breach of contract and unfair business practices. In due
course, the FDIC served Dickstein with a subpoena duces tecum
that, inter alia, commanded production of communications between
it and Ogden. Dickstein objected, citing the attorney-client
privilege. The FDIC moved to compel, contending that no
privilege attached because Dickstein had represented Ogden and
the banks jointly in connection with the litigation against the
efficacy insurers. The district court granted this motion by
endorsement. Ogden appealed the order, and the district court
stayed production pending resolution of the appeal.
II. APPELLATE JURISDICTION
There is a threshold issue here. Ogden premises
appellate jurisdiction on 28 U.S.C. § 1291, which provides for
jurisdiction over appeals taken from "final" decisions and
orders of the district courts. Since the order from which Ogden
purports to appeal does not conclude the litigation on the
merits, it is not final in the stereotypical sense. See United
States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir.
1988). Nevertheless, some orders that do not themselves end
litigation are deemed final (and thus immediately appealable)
-6-
under the collateral order doctrine. See Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546-47 (1949).
To qualify for this sanctuary, an order must
conclusively resolve an important question distinct from the
merits and yet be unreviewable, as a practical matter, in a
conventional end-of-case appeal. See Cunningham v. Hamilton
County, 119 S. Ct. 1915, 1920 (1999); Swint v. Chambers County
Comm'n,
514 U.S. 35, 42 (1995). The compass of this exception
is "narrow," Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 712
(1996), and discovery orders generally are not thought to come
within it.2 See Insurers Syndicate for the Joint Underwriting
of Medico-Hosp. Prof'l Liab. Ins. v. Garcia,
864 F.2d 208, 210
(1st Cir. 1988).
One reason that most discovery orders do not fall
within the collateral order exception is because they do not
meet the "otherwise effectively unreviewable" requirement; the
2 At an earlier stage of this litigation, the FDIC filed a
request for production of documents in Ogden's possession
relating to the efficacy insurance litigation. See Fed. R. Civ.
P. 34. Ogden objected to furnishing communications between it
and Dickstein, asserting attorney-client privilege. The FDIC
moved to compel production, and the district court granted the
motion. We dismissed Ogden's attempted appeal without prejudice
for want of appellate jurisdiction (though the disputed
documents have yet to be produced). This is a perfect example
of a discovery order that is not immediately appealable: Ogden,
after all, can refuse to comply with the order and thus invite
a finding of contempt (or some equivalent sanction).
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party resisting the discovery order "can gain the right of
appeal . . . by defying it, being held in contempt, and then
appealing from the contempt order, which would be a final
judgment as to [him]." Corporacion Insular de Seguros v.
Garcia, 876 F.2d 254, 257 (1st Cir. 1989). This praxis —
insisting upon disobedience followed by contempt as a condition
to reviewability — is commonly called the Cobbledick rule. See
Cobbledick v. United States,
309 U.S. 323, 328 (1940). The rule
serves efficiency interests because it encourages reflection
both by the party seeking discovery and by the party resisting
it. See 15B Charles Alan Wright, et al., Federal Practice and
Procedure § 3914.23, at 154 (2d ed. 1992).
The rationale underlying the Cobbledick rule is
distorted, however, when a discovery order runs to someone other
than an adverse party (a phenomenon that occurs when, say, a
court enforces a subpoena duces tecum served upon a non-party).
Since a third person "presumably lacks a sufficient stake in the
proceeding to risk contempt by refusing compliance," Church of
Scientology v. United States, 506 U.S. 9, 18 n.11 (1992), this
circumstance justifies a different approach. Under what has
been termed the Perlman rule, a discovery order addressed to a
non-party sometimes may be treated as an immediately appealable
final order vis-à-vis a party who claims to hold an applicable
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privilege. See id.; see also Perlman v. United States, 247 U.S.
7, 12-15 (1918). Courts frequently have invoked Perlman when a
client (who is herself a party or a grand jury target) seeks to
appeal an order compelling her attorney (who is neither a party
nor a target) to produce allegedly privileged materials. See,
e.g., In re Sealed Case,
146 F.3d 881, 883 (D.C. Cir. 1998); In
re Grand Jury Subpoenas,
123 F.3d 695, 699 (1st Cir. 1997);
Conkling v. Turner,
883 F.2d 431, 433-34 (5th Cir. 1989); In re
Grand Jury Subpoena Duces Tecum,
731 F.2d 1032, 1036 n.3 (2d
Cir. 1984).
On its face, this appeal appears to fit the classic
Perlman mold: the FDIC directed a subpoena duces tecum at the
law firm (a non-party); the district court enforced the subpoena
and ordered the firm to produce the disputed documents;
compliance with that order will let the cat out of the bag, thus
rendering an end-of-case appeal nugatory; and the client,
although a party to the case, has no way of testing the order by
allowing itself to be held in contempt. In this sense, the
client (Ogden) is at the mercy of its quondam counsel, and an
immediate appeal offers the only vehicle by which it can gain
effective review of the privilege issue.
Despite this apparent match, we proceed with
circumspection. Some tension exists in our precedents as to
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whether the availability of immediate review in cases such as
this should be gauged by the Perlman rule or by the more
encompassing Cohen collateral order doctrine. In the past few
years, two different panels of this court have furnished
divergent answers to this question. Compare United States v.
Billmyer, 57 F.3d 31, 34 & n.1. (1st Cir. 1995), with In re
Grand Jury
Subpoenas, 123 F.3d at 696-99.
Although these decisions do not fit tongue in groove,
the distinction between them does not affect reviewability in
this case.3 Under either approach, a substantial privilege claim
that cannot effectively be tested by the privilege-holder
through a contemptuous refusal ordinarily will qualify for
immediate review if the claim otherwise would be lost. This is
such a case. Moreover (as we shortly shall explain), the scope
of review here essentially involves what are more nearly
categorized as clear-cut questions of law, reviewable no matter
whether the appeal is viewed through the lens of Cohen or
Perlman. Thus, Billmyer, fairly read and applied, does not
3
The principal difference lies in the fact the Perlman rule
arguably contains no limitation on the scope of review, while
review under the collateral order doctrine arguably is limited
to "clear-cut legal error" as opposed to challenges that seek to
test either factual determinations or the application of a
settled legal rule to the particular facts. Billmyer, 57 F.3d
at 35. But, as the panel's actions in Billmyer evince, see
id.
at 35-37 (addressing waiver issue on the merits), the scope-of-
review limitation is flexible.
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remove the order sub judice from the class of orders that are
immediately appealable under In re Grand Jury Subpoenas and the
Perlman rubric.4 Consequently, we have jurisdiction to hear and
determine Ogden's appeal.
III. STANDARD OF REVIEW
Trial judges enjoy broad discretion in the handling of
interstitial matters, such as the management of pretrial
discovery. As a result, an appellate court will intervene in
such matters "only upon a clear showing of manifest injustice,
that is, where the lower court's discovery order was plainly
wrong and resulted in substantial prejudice to the aggrieved
party." Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179,
186 (1st Cir. 1989).
Ogden invites us to abandon this abuse-of-discretion
standard in favor of plenary review because the district court
granted the motion to compel by endorsement, without elaborating
upon its thinking. We decline the invitation. Although a lower
4
With regard to the tension between Billmyer and In re Grand
Jury Subpoenas, we note that two recent developments favor the
latter. Billmyer relied in part on In re Oberkoetter, 612 F.2d
15 (1st Cir. 1980), a decision that this court subsequently
overruled in In re Grand Jury
Subpoenas, 123 F.3d at 697 n.2,
699. Billmyer likewise relied to some extent on the decision in
In re Grand Jury Proceedings,
43 F.3d 966, 969-70 (5th Cir.
1994), a decision that the Fifth Circuit since has qualified or
abandoned. See In re Grand Jury Subpoena,
190 F.3d 375, 384
n.11 (5th Cir. 1999), petition for cert. filed, ___ U.S.L.W. ___
(U.S. Dec. 20, 1999) (No. 99-1046).
-11-
court's elucidation of its reasoning invariably eases the
appellate task, motions often are decided summarily. We have
thus far refused to insist upon a rigid rule to the contrary.
See, e.g., Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st Cir.
1998), cert. denied,
119 S. Ct. 872 (1999); Domegan v. Fair,
859
F.2d 1059, 1065-66 (1st Cir. 1988). While it is sometimes
necessary to remand for specific findings when confronted with
an opaque ruling, see, e.g., Francis v. Goodman,
81 F.3d 5, 8
(1st Cir. 1996); Pearson v. Fair,
808 F.2d 163, 165-67 (1st Cir.
1986) (per curiam), we are aware of no authority that would
allow us automatically to vary the standard of review depending
on whether a district court has taken the time to explain its
rationale. In all events, the question is academic here, as the
record before us permits a clear understanding of why the
district court ruled as it did.
IV. THE MERITS
In a discovery dispute, the burden to establish an
applicable privilege rests with the party resisting discovery.
See United States v. Construction Prods. Research, Inc., 73 F.3d
464, 473 (2d Cir. 1996). If the privilege is established and
the question becomes whether an exception to it obtains, the
devoir of persuasion shifts to the proponent of the exception.
See McMorgan & Co. v. First Cal. Mortgage Co.,
931 F. Supp. 699,
-12-
701 (N.D. Cal. 1996). We look to Massachusetts law to determine
the scope of both the asserted privilege and the exception in
this case. See Fed. R. Evid. 501; 6 James Wm. Moore et al.,
Moore's Federal Practice § 26.47[4] (3d ed. 1999). As to
matters about which the Supreme Judicial Court of Massachusetts
has not spoken, we take a predictive approach and seek guidance
from other persuasive case law, learned treatises, and pertinent
public policy considerations. Cf. Blinzler v. Marriott Int'l,
Inc., 81 F.3d 1148, 1151 (1st Cir. 1996) (endorsing such an
approach for use in diversity cases).
The privilege at issue here — the attorney-client
privilege — serves important ends. Its root purpose is "to
encourage full and frank communication between attorneys and
their clients and thereby promote broader public interests in
the observance of law and administration of justice." Upjohn
Co. v. United States, 449 U.S. 383, 389 (1981). The privilege
springs from the attorney-client relationship. In
Massachusetts, such a relationship comes into being "when (1) a
person seeks advice or assistance from an attorney, (2) the
advice or assistance sought pertains to matters within the
attorney's professional competence, and (3) the attorney
expressly or impliedly agrees to give or actually gives the
desired advice or assistance." DeVaux v. American Home Assur.
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Co., 444 N.E.2d 355, 357 (Mass. 1983); accord Sheinkopf v.
Stone,
927 F.2d 1259, 1264 (1st Cir. 1991) (applying
Massachusetts law); Bays v. Theran,
639 N.E.2d 720, 723 (Mass.
1994). The privilege that attends the attorney-client
relationship "extends to all communications made to an attorney
or counsellor, duly qualified and authorized as such, and
applied to by the party in that capacity, with a view to obtain
his advice and opinion in matters of law, in relation to his
legal rights, duties and obligations." Hatton v. Robinson,
14
Pick. 416, 421 (Mass. 1833).
Despite its venerable provenance, the attorney-client
privilege is not absolute. One recognized exception renders the
privilege inapplicable to disputes between joint clients. See
Beacon Oil Co. v. Perelis, 160 N.E. 892, 894 (Mass. 1928).
Thus, when a lawyer represents multiple clients having a common
interest, communications between the lawyer and any one (or
more) of the clients are privileged as to outsiders but not
inter sese. See Eureka Inv. Corp. v. Chicago Title Ins. Co.,
743 F.2d 932, 936-38 (D.C. Cir. 1984); 8 John Henry Wigmore,
Wigmore on Evidence § 2312 at 603-09 (McNaughton rev. ed. 1961).
As one leading treatise explains,
When two or more persons, each having an
interest in some problem, or situation,
jointly consult an attorney, their
confidential communications with the
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attorney, though known to each other, will
of course be privileged in a controversy of
either or both of the clients with the
outside world, that is, with parties
claiming adversely to both or either of
those within the original charmed circle.
But it will often happen that the two
original clients will fall out between
themselves and become engaged in a
controversy in which the communications at
their joint consultation with the lawyer may
be vitally material. In such a controversy
it is clear that the privilege is
inapplicable.
1 Kenneth S. Broun et al., McCormick on Evidence § 91 at 335-36
(4th ed. 1992).
In determining whether parties are "joint clients,"
courts may consider multiple factors, including but not limited
to matters such as payment arrangements, allocation of
decisionmaking roles, requests for advice, attendance at
meetings, frequency and content of correspondence, and the like.
See McMorgan, 931 F. Supp. at 702; In re Colocotronis Tanker
Secs. Litig.,
449 F. Supp. 828, 830-32 (S.D.N.Y. 1978); Connelly
v. Dun & Bradstreet, Inc.,
96 F.R.D. 339, 342 (D. Mass. 1982).
In addition, the joint client exception presupposes that
communications have been "made in the course of the attorney's
joint representation of a 'common interest' of the two parties."
Eureka, 743 F.2d at 937. The term "common interest" typically
entails an identical (or nearly identical) legal interest as
opposed to a merely similar interest. See, e.g., McMorgan, 931
-15-
F. Supp. at 701; NL Indus. v. Commercial Union Ins. Co., 144
F.R.D. 225, 230-31 (D.N.J. 1992). Thus, the proponent of the
exception must establish cooperation in fact toward the
achievement of a common objective. See Shamis v. Ambassador
Factors Corp.,
34 F. Supp. 2d 879, 893 (S.D.N.Y. 1999).
In this case, it cannot be gainsaid that Dickstein and
Ogden enjoyed an attorney-client relationship in respect to the
war being waged against the efficacy insurers. The record
attests that the banks also were Dickstein's clients in that
struggle. They, like Ogden, had a pecuniary interest in the
avails of the insurance — interests that were identical in
character (albeit different in amount). They, like Ogden,
desired to press for those proceeds, through litigation if
necessary. The banks pooled their interests with Ogden's and
authorized Ogden to secure the services of a law firm to mount
a unified offensive to prosecute their joint claims against the
insurers. The assistance that Ogden sought on behalf of itself
and the banks fell well within the purview of Dickstein's
professional competence, and Dickstein actually rendered the
desired services.
In undertaking the enterprise, Dickstein unequivocally
committed itself to joint representation. When it brought suit
against the efficacy insurers it entered an appearance not only
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for Ogden, but also for the wholly-owned subsidiary of NEMLC
(and it still represents both in that litigation). These
entries of appearance themselves constitute persuasive evidence
of a joint client relationship.
Dickstein's subsequent actions confirm that impression.
Early on (in February 1987), it wrote to both NEMLC and
Citicorp, describing an executive summary of the strategy that
it proposed to pursue on behalf of Ogden and the banks in the
unified litigation. The words "ATTORNEY CLIENT PRIVILEGED
COMMUNICATION" were emblazoned at the head of the first page of
each letter. The text of the letter sent to NEMLC (which was
materially identical to the one sent to Citicorp) stated in
relevant part:
This firm has been engaged to represent the
beneficiaries of a proposed claim against
the efficacy insurers covering the
referenced Project. We have prepared a
substantive Memorandum and Executive Summary
detailing our review of the matter and the
potential for recovery under the efficacy
policies. Before we provide this material
to you, however, in order to protect and
maintain its privileged and confidential
nature, we need to confirm, and obtain your
acknowledgment, that with regard to the
proposed efficacy claim, there exists,
between New England Merchants Leasing
Corporation ("NEMLC") and NEMLC Alpha Inc.
on the one hand and this firm on the other,
an attorney-client relationship. As you are
aware, under the terms of the [restated
assignment agreement], NEMLC and NEMLC Alpha
Inc. stand to benefit from any recovery from
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the efficacy insurers. As such, we have
been retained to represent the interests of
NEMLC and NEMLC Alpha Inc. as well as all
other beneficiaries under the referenced
agreements.
The letter went on to request that the recipient "acknowledge
the applicability of the attorney-client privilege to our
relationship, and provide assurances that the contents of the
referenced documents, and any others prepared by this firm, will
be treated as confidential and not disclosed to anyone who is
not a 'client' of this firm in this matter." Finally, the
letter provided a means for signifying the recipient's agreement
to the formation of the attorney-client relationship. Both
NEMLC and Citicorp executed and returned copies of the
engagement letters to Dickstein, 5 which then furnished the
strategic assessment to them.
If more were needed — and we doubt that it is — a
surfeit of other evidence indicates the existence of a joint
attorney-client relationship. We offer three examples. The
record contains (1) copious notes taken by a Citicorp
representative during a telephone conference with Attorney
5
Ogden argues that Dickstein merely intended these
engagement letters to protect certain documents from discovery
by the efficacy insurers — but it has cited no respectable
authority for this kind of "limited" or "nominal" attorney-
client privilege, and we dismiss the notion out of hand. A law
firm that says one thing and induces confidences as a result
cannot later be heard to profess that it meant another.
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Leveridge (a Dickstein partner) on March 30, 1988, in regard to
litigation strategy; (2) copies of correspondence from Leveridge
to the banks asking for assistance in responding to discovery
requests and soliciting suggestions for dealing with the
efficacy insurers; and (3) a copy of a letter written by a
Dickstein lawyer, Paul Taskier, on September 16, 1991,
responding to an inquiry from Citicorp and furnishing a detailed
interpretation of the allocation provision contained in the
restated assignment agreement (an interpretation starkly at odds
with the interpretation that Dickstein urged upon the banks in
August of 1996).
This evidence points clearly and convincingly to a
joint client relationship. See Bays, 639 N.E.2d at 723;
DeVaux,
444 N.E.2d at 357. The entries of appearance and the engagement
letters alone constitute powerful proof, and the correspondence
evinces a coordinated legal strategy sufficient to lead a
reasonable person standing in NEMLC's shoes to infer that
Dickstein had become its attorney. See
Sheinkopf, 927 F.2d at
1265; Shamis, 34 F. Supp. 2d at 893. Courts customarily
determine the existence vel non of an attorney-client
relationship by evaluating whether the putative client's belief
that such a relationship existed was objectively reasonable
under all the circumstances. See
Sheinkopf, 927 F.2d at 1265;
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Sky Valley L.P. v. ATX Sky Valley, Ltd., 150 F.R.D. 648, 651-52
(N.D. Cal. 1993). Here, the reasonableness of the banks'
professed belief that Dickstein had become their attorney in
regard to the efficacy insurance litigation is manifest.
Ogden's attempt to persuade us to a different view
lacks force. It claims that no joint client relationship could
have been forged because of the uncertainty about the eventual
allocation of the litigation proceeds. This "intrinsic"
adversity, Ogden says, destroyed the requisite identity of
interests. See McMorgan, 931 F. Supp. at 701 (explaining that
mere similarity in interests is not enough to establish a joint
client relationship).
This argument is spun from whole cloth. At the crucial
time — the time when Dickstein and the banks tied the attorney-
client knot — no one had expressed the view that the allocation
provision in the restated assignment agreement was inscrutable,
and there was no reason to believe that the beneficiaries of the
insurance would part company when it came time to divide the
proceeds. For aught that appeared, Ogden's interest was
entirely congruent with NEMLC's and Citicorp's. No more was
exigible: the mere possibility of a future dispute did not
prevent the formation of a valid joint client relationship. See
Sky Valley, 150 F.R.D. at 662.
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In a related vein, Ogden asseverates that even if a
joint client relationship initially existed, the relationship
was dissolved once it (and, presumably, Dickstein) realized that
its interests had become adverse to the banks. This
asseveration rests on a false premise. A joint attorney-client
relationship remains intact until it is expressly terminated or
until circumstances arise that readily imply to all the joint
clients that the relationship is over.6 See Flynt v. Brownfield,
Bowen & Bally, 882 F.2d 1048, 1051-52 (6th Cir. 1989). Here,
the record reveals no hint of any circumstances existing prior
to Dickstein's August 2, 1996 letter (proposing a particular
allocation of proceeds) from which the banks reasonably could
have inferred that their interests had become inimical to
Ogden's.
In sum, the FDIC has adduced substantial evidence to
support its assertion that Ogden and the banks sought and
6
Contrary to Ogden's importuning, Eureka does not stand for
a different rule. There, the communications at issue were made
after the interests of the joint clients diverged and their
attorney, aware of the divergence, undertook separate
representation of one client, distinct from the joint
representation. See 743 F.2d at 937. The court's holding
addresses whether the content of these communications pertained
to the common interest that formed the basis of the joint
representation. See
id. We decline to read Eureka as holding
that a joint client relationship evaporates whenever one client
unilaterally determines that its interests have diverged from
those of its co-clients.
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received legal advice from Dickstein with regard to a common
interest — the efficacy insurance litigation — thereby
establishing that all three had forged a joint attorney-client
relationship with Dickstein. See Sheinkopf, 927 F.2d at 1264;
Bays, 639 N.E.2d at 723. Since that relationship remained whole
until the banks received Dickstein's letter of August 2, 1996,
the joint client exception to the attorney-client privilege
applies. See Beacon
Oil, 160 N.E. at 894. It follows
inexorably that the claim of attorney-client privilege is
impuissant with respect to documents generated on or before
August 2, 1996.7
Affirmed.
7 In its present posture, this appeal requires us only to
pass upon Ogden's global claim of attorney-client privilege. To
the extent (if at all) that other grounds for resisting
production attach to particular documents (say, that a given
item is wholly unrelated to Dickstein's representation of the
joint clients' common interest or originated after August 2,
1996), the district court, in its discretion, may consider those
objections and may, if necessary, review specific documents in
camera.
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