Tag Archives: communications

Sulaiman v. Biehl & Biehl, No. 15 C 04518, 2016 U.S. Dist. LEXIS 136677 (N.D. Ill. Sep. 30, 2016).

Cases brought to enforce consumer rights established by statutes such as the Fair Debt Collection Practices Act (“FDCPA”) are sometimes criticized as lawyer-driven vehicles that have more to do with efforts to obtain attorney’s fees than they do with providing relief to the plaintiff-consumers. See, e.g., In re WorldCom, Inc. Sec. Litig., 219 F.R.D. 267, 285-286 (S.D.N.Y. 2003) (“the minimal recovery available to each plaintiff under the FDCPA creates legitimate concern regarding client control of the litigation”); Lynn A.S. Araki, Rx for Abusive Debt Collection Practices: Amend the FDCPA, 17 U. Haw. L. Rev. 69, 108 (1995) (“Attorneys appear to be more interested in the mandatory statutory award of attorney’s fees than they are in protecting the rights of consumers.”). This case may add fuel to the fire; here, at least according to the defendant, the lawyer has dispensed with the plaintiff altogether—the attorney is the plaintiff. Omar Sulaiman, an attorney who specializes in consumer protection litigation, brings this action against Biehl & Biehl (“Biehl”), a debt collection agency, seeking to collect statutory damages and attorney’s fees based on two communications he had with Biehl concerning a disputed $32 debt concerning a newspaper subscription. Both parties have filed summary judgment motions; for the following reasons, Sulaiman’s motion is denied and Biehl’s motion is granted. 

Sulaiman v. Biehl & Biehl, No. 15 C 04518, 2016 U.S. Dist. LEXIS 136677, at *1 (N.D. Ill. Sep. 30, 2016).

Hammerman v. N. Tr. Co. (In re Kipnis Section 3.4 Tr.), 235 Ariz. 153, 329 P.3d 1055 (Ct. App. 2014).

The question whether the trustee acted in a fiduciary capacity cannot be resolved simply by asking who paid for the advice. Under the older Restatement (Second) of Trusts, a trustee was “privileged to refrain from communicating to the beneficiary information acquired by the trustee at his own expense and for his own protection.” Restatement (Second) of Trusts § 173 cmt. b (1959) (emphasis added). The Restatement (Third) of Trusts instead provides that “the question of who has paid for the legal services, or who ultimately will be required to pay those expenses, [***14]  although potentially relevant, involves other and complicated considerations . . . so that this matter is not determinative in resolving issues of privilege.” Restatement (Third) of Trusts § 82 cmt. f; see also Randall Roth, Understanding the Attorney-Client and Trustee-Beneficiary Relationships in the Kamehameha Schools Bishop Estate Litigation: A Reply to Professor McCall, 21 U. Haw. L. Rev. 511, 526-27 (1999) (“If the lawyer is to be paid out of trust funds, that suggests (but does not finally determine) that the lawyer will be involved in the administration of the trust and therefore is representing the trustee in the trustee’s representative capacity. If the lawyer is paid out of the trustee’s personal funds, that suggests (but does not finally determine) that the lawyer will be watching out for the personal interests of the trustee, not involved in the administration of the trust, and is therefore representing the trustee in the trustee’s individual capacity.”). To be clear, “it is not the terms of an engagement letter, but rather the nature of the particular attorney-client communication that is dispositive. This communication-by-communication analysis, while perhaps untidy, is crucial if the attorney-client privilege and the fiduciary exception are to coexist.” Mett, 178 F.3d at 1065.
Hammerman v. N. Tr. Co. (In re Kipnis Section 3.4 Tr.), 235 Ariz. 153, 160, 329 P.3d 1055, 1062 (Ct. App. 2014).

Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 625 Pa. 301, 91 A.3d 680 (2014).

As this case illustrates, there is some tension between the goals of protecting attorney work product and allowing fair access to information provided to a testifying expert. An expert hired to assist in a civil case must be informed of the nature of the case and any relevant factual matters. If an attorney provides the expert with all such factual materials and nothing more, the expert must sift through them and decide which items or parts of items are relevant. While this would arguably avoid transmission of attorney work product to the expert, it would be time-consuming and inefficient. It is more helpful for the attorney, who is already familiar with the case and the legal issues involved, to document for the expert any relevant facts and issues. Doing so “facilitates prompt formation of an expert’s opinion [and] carries the benefit of efficiency, [but] it may also lead to discovery of such information by the opponent.” Duke T. Oishi, A Piece of Mind for Peace of Mind: Federal Discoverability of Opinion Work Product Provided to Expert Witnesses and its Implications in Hawaiʻi, 24 U. Haw. L. Rev. 859, 859-60 (2002).
Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 625 Pa. 301, 324, 91 A.3d 680, 693-94 (2014)