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Meyerhofer v. Empire Fire & Marine Insurance Co

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Brief Fact Summary. An attorney named as a defendant in a securities law violation case wants to be able to use attorney-client privileged information to demonstrate his nonparticipation in the wrongful acts alleged by Plaintiffs.

Synopsis of Rule of Law. An attorney’s right to reveal previously privileged information to insulate himself from liability for alleged wrongdoing.

Points of Law - Legal Principles in this Case for Law Students.

DR4-101 (C)(4) provides in pertinent part: (C) A lawyer may reveal: (4) Confidences or secrets necessary to defend himself or his employees or associates against an accusation of wrongful conduct.

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Facts. Attorney Charles Goldberg was named as a defendant along with the insurance company that he had advised in this suit brought by a shareholder claiming a number of securities law violations. Goldberg argues that he was not a party to this wrongdoing, and wants to be able to use a copy of an affidavit previously submitted to the SEC to prove this. His co-defendants seek to enjoin the production of this information.

Issue. Was Goldberg justified in making this information public once he learned that he had been included as a co-defendant?

Held. Yes. An attorneys may circumvent the attorney-client privilege if the previously privileged information would protect them from allegations of wrongdoing.

Discussion. This is the only exception to the attorney-client privilege in which the attorney is allowed to waive the privilege. The privilege is otherwise solely at the client’s discretion.

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