It’s been a slow day for paying customers — it’s all waiting for the Court on this, waiting for the consultants on that — which is a good thing, since I’ve been running myself into the ground of late. But I’m genetically predisposed to never, ever, ever stop working (ask my wife), so I’ll offer some free legal advice to Josh Marshall.
Writing of L’Affaire Plame, Marshall states “here’s a question worth asking. Has Victoria Toensing or, more importantly, her husband and legal partner in their criminal defense firm, Joe diGenova, taken on any clients who might be targets in the Plame probe?” The thought being that retaining Toensing or diGenova would be a good sign that the retainer throught that he or she is a target of the probe.
Ordinarily, that a lawyer has a client and the kind of work the lawyer is doing for that client, as well as how much the lawyer is charging, are not protected information. Oh, sure, lawyers owe their clients a duty of confidentiality and can’t go around bragging about the work they’re doing, but, if push comes to shove, the lawyer can be forced to part with these types of information. That is, these types of information are not protected by the attorney-client privilege. (One of the more difficult things for a young lawyer to grasp is that a whole bunch of things that he or she says are not privileged — the privilege is surprisingly narrow.)
There are a couple exceptions to that rule, however. One is that when the disclosure of typically non-privileged information would necessarily also disclose privileged information. This can occur, for instance, when a person seeks a lawyer’s services because he or she is concerned that he or she is being investigated. In these circumstances, the mere fact that you’re seeking a lawyer’s services potentially reveals the substance of your privileged communication with the lawyer, i.e.: “Hey, I might have done something wrong here; give me some legal advice.”
There’s a nuance or two to the above that I’m not going to get into (whaddaya expect for free?), but it all boils down to this: If Victoria Toensing and Joe diGenova do have a new client from the Plame Affair, they probably can’t be compelled to give up the name to the government. The government has to figure out the name itself.
von,
Mike Allen quotes Ms. Toensing in an article in today’s WaPo. Had Ms. Toensing been retained would she allow herself to be quoted?
Also, I read the article as a setup for a slow backaway by the WaPo from looking like complete idiots Could be wrong but the inclusion of the Wilson quote at the end looks like a backdown to me.
Shame that you couldn’t have advised Josh on how to construe a narrowly constructed statute prior to him jamming both feet in his mouth.*
*Standard “If a law was broken…” disclaimer included.
Had Ms. Toensing been retained would she allow herself to be quoted?
I don’t believe that Ms. Toensing owes any duty of candor to the press, but I’m not an expert on legal ethics. And, if she were already retained, commenting to the press as an expert is brilliant strategy.