12-08-2018, 07:17 PM
Mr. Kowalski, your analysis of the issues in re the papers of Louis Bloomfield kind of puzzles me. I found a citation on the internet which I will copy below. There may well be a confusion here between "attorney-client privilege" and "client confidentiality".
It seems from the citation below which is based on a US Supreme Court Case of Upjohn Co. vs. United States, that the attorney-client privilege can only be asserted by the client, his trustee or his executor or similar parties. Even if the Canadian Archives were considered a Trustee of the Bloomfield papers, it would still only be a trustee for Bloomfield, but not for the clients, whomever they might be. The archives has no privity with the would-be clients of Bloomfield. The archives only had privity with Bloomfield or his heirs or his estate.
Since you mention that the case will be decided based on case law, this seems almost impossible. In my experience of reviewing personal papers (I looked through 17 boxes of the papers of Civil Right leader James Dombrowski), there a myriad of documents of various types including newspaper clippings, letters, transcripts, FBI files, etc etc.
You would simply never be able find a case governing each type of document. Probably, the cases you could find would only cover such things as a letter to a client, a report prepared for a client which would be "attorney work-product" or a legal brief, etc.
On the other hand, as I have mentioned, if the papers are treated as CLIENT CONFIDENTIALITY MATTERS, the the confidentiality could be asserted by a Bar Association (or possibly a court) who was not a client or successor to a client.
NEITHER THE "ATTORNEY-CLIENT PRIVILEGE" NOR THE "CLIENT CONFIDENTIALITY" ISSUES CAN BE ASSERTED BY JUST ANY ODD PERSON ON THE STREET OR IN THE PHONE BOOK. NEITHER WOULD INTELLIGENCE AGENCIES HAVE THE RIGHT TO ASSERT THIS PRIVILEGE.
I'm pretty sure that to be asserting something in any court at least in the US or Canada, you have to have some relation to the case which would give you standing to be in court.
I don't see how any archives would have standing to assert either of the above issues regarding privilege. The archives would be a successor trustee for Bloomfield, but not for any clients of his.
It does seem, however, that if there is any attorney-client privilege (as distinct from "client confidentiality"), then that privilege literally applies forever, even after 100 years or more. For "client confidentiality", however, the statute of limitations is "a reasonable period", i.e. the same vague standard that applies to all business records such as tax returns, books of account, etc. etc.
Sometimes this period is set (in the business world) at seven years, but actually on the internet, I have seen that a period of more like 15 year is mentioned. HOWEVER, THERE IS NO ACTUAL, SPECIFIC time limit on records involving "client confidentiality". It does not last forever as does "attorney-client privilege."
If your issue is "client confidentiality" and not "attorney-client privilege", the "client confidentiality" is in the province of the bar associations, so the rules governing law practice as published by the respective Bar Association would apply. It is assumed, of course, that such rules are written in conformity with case law. It is impossible to see how anyone can successfully argue that the Bar Association Rules about confidential documents are at variance with case law. If they are, then they would have to be immediately re-written. You see how this variance between bar association rules, rules of evidence and case law would be exceedingly rare if not impossible.
Since the Bar association rules define each and every type of document, they would be much more useful than trying to find a legal case opinion ruling on each miniscule type document (baseball tickets, photos, etc. etc etc). To me, this case could not turn on finding cases for every type of item in personal papers. If it does, IMHO you are being scammed.
http://www.djcl.org/wp-content/uploads/2...77-PDF.pdf
25See JOHN W. GERGACZ, ATTORNEY-CORPORATE CLIENT PRIVILEGE 3D § 3:7 (2015). 26Subsections (b) and © of Delaware Rule of Evidence 502 provide a brief definition of this privilege and who has standing to assert it: (b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client's representative and the client's lawyer or the lawyer's representative, (2) between the lawyer and the lawyer's representative, (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client. © Who may claim the privilege. The privilege under this rule may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client or the successor, trustee or similar representative of a corporation, association or other organization, whether or not in existence. A person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client. DEL. R. EVID. 502(b)-©. 27See Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992).
8"A 'client' is a person, public officer or corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer." DEL. R. EVID. 502(a)(1). 29"A 'lawyer' is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation." DEL. R. EVID. 502(a)(3). 30"A communication is 'confidential' if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." DEL. R. EVID. 502(a)(2). 31Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 32See Stephen A. Saltzburg, Corporate and Related Attorney-Client Privilege Claims:
James Lateer
It seems from the citation below which is based on a US Supreme Court Case of Upjohn Co. vs. United States, that the attorney-client privilege can only be asserted by the client, his trustee or his executor or similar parties. Even if the Canadian Archives were considered a Trustee of the Bloomfield papers, it would still only be a trustee for Bloomfield, but not for the clients, whomever they might be. The archives has no privity with the would-be clients of Bloomfield. The archives only had privity with Bloomfield or his heirs or his estate.
Since you mention that the case will be decided based on case law, this seems almost impossible. In my experience of reviewing personal papers (I looked through 17 boxes of the papers of Civil Right leader James Dombrowski), there a myriad of documents of various types including newspaper clippings, letters, transcripts, FBI files, etc etc.
You would simply never be able find a case governing each type of document. Probably, the cases you could find would only cover such things as a letter to a client, a report prepared for a client which would be "attorney work-product" or a legal brief, etc.
On the other hand, as I have mentioned, if the papers are treated as CLIENT CONFIDENTIALITY MATTERS, the the confidentiality could be asserted by a Bar Association (or possibly a court) who was not a client or successor to a client.
NEITHER THE "ATTORNEY-CLIENT PRIVILEGE" NOR THE "CLIENT CONFIDENTIALITY" ISSUES CAN BE ASSERTED BY JUST ANY ODD PERSON ON THE STREET OR IN THE PHONE BOOK. NEITHER WOULD INTELLIGENCE AGENCIES HAVE THE RIGHT TO ASSERT THIS PRIVILEGE.
I'm pretty sure that to be asserting something in any court at least in the US or Canada, you have to have some relation to the case which would give you standing to be in court.
I don't see how any archives would have standing to assert either of the above issues regarding privilege. The archives would be a successor trustee for Bloomfield, but not for any clients of his.
It does seem, however, that if there is any attorney-client privilege (as distinct from "client confidentiality"), then that privilege literally applies forever, even after 100 years or more. For "client confidentiality", however, the statute of limitations is "a reasonable period", i.e. the same vague standard that applies to all business records such as tax returns, books of account, etc. etc.
Sometimes this period is set (in the business world) at seven years, but actually on the internet, I have seen that a period of more like 15 year is mentioned. HOWEVER, THERE IS NO ACTUAL, SPECIFIC time limit on records involving "client confidentiality". It does not last forever as does "attorney-client privilege."
If your issue is "client confidentiality" and not "attorney-client privilege", the "client confidentiality" is in the province of the bar associations, so the rules governing law practice as published by the respective Bar Association would apply. It is assumed, of course, that such rules are written in conformity with case law. It is impossible to see how anyone can successfully argue that the Bar Association Rules about confidential documents are at variance with case law. If they are, then they would have to be immediately re-written. You see how this variance between bar association rules, rules of evidence and case law would be exceedingly rare if not impossible.
Since the Bar association rules define each and every type of document, they would be much more useful than trying to find a legal case opinion ruling on each miniscule type document (baseball tickets, photos, etc. etc etc). To me, this case could not turn on finding cases for every type of item in personal papers. If it does, IMHO you are being scammed.
http://www.djcl.org/wp-content/uploads/2...77-PDF.pdf
25See JOHN W. GERGACZ, ATTORNEY-CORPORATE CLIENT PRIVILEGE 3D § 3:7 (2015). 26Subsections (b) and © of Delaware Rule of Evidence 502 provide a brief definition of this privilege and who has standing to assert it: (b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client's representative and the client's lawyer or the lawyer's representative, (2) between the lawyer and the lawyer's representative, (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client. © Who may claim the privilege. The privilege under this rule may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client or the successor, trustee or similar representative of a corporation, association or other organization, whether or not in existence. A person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client. DEL. R. EVID. 502(b)-©. 27See Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992).
8"A 'client' is a person, public officer or corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer." DEL. R. EVID. 502(a)(1). 29"A 'lawyer' is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation." DEL. R. EVID. 502(a)(3). 30"A communication is 'confidential' if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." DEL. R. EVID. 502(a)(2). 31Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 32See Stephen A. Saltzburg, Corporate and Related Attorney-Client Privilege Claims:
James Lateer