Amicus Curiae Brief — Robert Phillip Ivers, Petitioner v. United States

No. 20-7304

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------ROBERT PHILLIP IVERS,

Petitioner,

v.

UNITED STATES,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

LAW PROFESSORS IN SUPPORT OF

PETITIONER ROBERT PHILLIP IVERS

---------------------------------♦--------------------------------I. RICHARD GERSHON

UNIVERSITY OF MISSISSIPPI

SCHOOL OF LAW

481 Chucky Mullins Drive

University, MS 38677

(662) 915-6918

igershon@olemiss.edu

WILLIAM M. JANSSEN

Counsel of Record*

CHARLESTON SCHOOL

OF LAW

81 Mary Street

Charleston, SC 29403

(843) 377-2442

wjanssen@charlestonlaw.edu

April 1, 2021

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

STATEMENT OF INTEREST .............................

1

SUMMARY OF ARGUMENT ..............................

1

ARGUMENT ........................................................

4

I.

II.

ANY PROPER INTERPRETATION OF

THE ATTORNEY-CLIENT PRIVILEGE

MUST DELIVER PREDICTABILITY, OR

IT WILL FAIL IN ITS OBJECTIVE OF

ENCOURAGING CLIENT CANDOR ........

4

THE SEGMENTED EVALUATION APPROACH TO THE PRIVILEGE ENDORSED BY THE COURTS BELOW IS

NEITHER REALISTIC NOR FUNCTIONAL; IT IMPERILS PREDICTABILITY .............................................................

7

CONCLUSION..................................................... 16

APPENDIX A: Amici Curiae ............................... App. 1

ii

TABLE OF AUTHORITIES

Page

CASES

Hunt v. Blackburn, 128 U.S. 464 (1888) .......................4

In re County of Erie, 473 F.3d 413 (2d Cir. 2007) ........6

Jaffee v. Redmond, 518 U.S. 1 (1996) ...........................6

Lucky Brand Dungarees, Inc. v. Marcel Fashions

Grp., Inc., 140 S. Ct. 1589 (2020) ............................14

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100

(2009) .........................................................................4

Purcell v. Dist. Att’y for Suffolk Dist., 676 N.E.2d

436 (Mass. 1997)......................................................13

Swidler & Berlin v. United States, 524 U.S. 399

(1998) .........................................................................5

Upjohn Co. v. United States, 449 U.S. 383 (1981) ..... 5, 6

United States v. Alexander, 287 F.3d 811 (9th

Cir. 2002) ...................................................................9

United States v. Eirven, 987 F.2d 634 (9th Cir.

1993) .................................................................. 12, 15

United States v. Ivers (Ivers I), 2018 WL 11025541

(D. Minn. June 26, 2018) ............................... 3, 7, 8, 9

United States v. Ivers (Ivers II), 967 F.3d 709 (8th

Cir. 2020) ............................................................... 3, 8

OTHER AUTHORITIES

ABA MODEL RULES OF PRO. CONDUCT r. 1.6(b) ...........13

ABA MODEL RULES OF PRO. CONDUCT r. 2.1................12

iii

TABLE OF AUTHORITIES—Continued

Page

ABA MODEL RULES OF PRO. CONDUCT r. 2.1, cmt.

1 ...............................................................................12

ABA MODEL RULES OF PRO. CONDUCT r. 2.1, cmt.

2 ...............................................................................12

Brief of Appellee, in United States v. Ivers, No.

19-1563, 2019 WL 3947835 (8th Cir. 2019) ..............7

PAUL R. RICE, ATTORNEY-CLIENT PRIVILEGE IN

THE UNITED STATES (2020) .........................................4

Transcript of Evidentiary Hearing on Defendant’s Motion to Exclude Attorney-Client

Privileged Communication, in United States

v. Ivers, No. 0:18-cr-90 (D. Minn. June 18,

2018) ............................................................ 10, 11, 12

1

STATEMENT OF INTEREST

The amici curiae, listed in Appendix A, are

each professors at U.S. law schools who study, teach,

research, and/or write about the attorney-client privilege. Their interest here is to advocate for an interpretation and application of the privilege that best

safeguards the privilege’s important goal of facilitating

an optimal level of client representation in the federal

courts.1

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

This Petition invites review of troublesome (and

now precedential) reasoning in an attorney-client privilege ruling. The context was a consultative telephone

conversation scheduled by two attorneys with their client. Only the attorneys and the client were present on

the phone. The 30-minute discussion was devoted to a

single, substantive topic—the viability of filing a new

lawsuit in light of a court’s dismissal of a related, earlier lawsuit. The attorneys conveyed their disappointing advice to the client which prompted a venting from

1

No counsel for a party authored this brief in whole or in

part. Monetary contributions intended to fund the preparation or

submission of this brief were made only by the amici curiae themselves; no contributions were made by any party or their counsel.

All parties have given their specific consents to the filing of this

law professors’ amicus curiae brief. The amici curiae gave notice

to all parties of their intent to file this brief, though that notice

was given less than 10 days prior to the filing; however, all parties

have consented to this filing on shortened notice.

2

the client that (a jury later found) included threatening statements about the first lawsuit’s presiding

judge. The discussion closed with the attorneys asking

their client if he had other questions (he did not), and

the call was ended.

In ruling that the client’s threat was not privileged, the courts below adopted an unusual analysis.

They did not hold that, to what would otherwise have

been an attorney-client privileged discussion, some

exception to the privilege applied. Rather, they reasoned that no exception was needed because this particular portion of the client’s consultative telephone

call enjoyed no privilege. In effect, the courts determined that during a concededly confidential discussion

between client and counsel, the attorney-client privilege in the federal courts is correctly assessed in a

segmented manner—thought-by-thought, sentence-bysentence, perhaps even word-by-word. That reasoning

poses a grave danger to the privilege and its underlying goal of client-to-counsel candor.

Oral conversations do not follow a neat, linear progression. Thoughts wander. Focus ebbs and returns.

Comments meander. This is the very nature of verbal

communication. These tendencies are accentuated in a

setting where a client is conversing, in confidence, with

an attorney on a topic of great personal interest. In

that setting, emotions may flare as the client, untrained in the law, reacts viscerally to new information.

Of course, this is certainly not to say that a client

might, in that setting, utter a statement that could

3

qualify for an exception to the attorney-client privilege.2 But it is quite remarkable to say that the context

is no longer a consultative one triggering the privilege.

Viewing, in this sort of dissected manner, a singletopic, consultative oral discussion convened for the

purpose of imparting legal advice to a client would hollow out the privilege immeasurably. Clients must be

able to reliably predict that a particular discussion

with counsel will be shielded in confidence. The analysis employed by the courts below would discourage, rather than incentivize, candid client sharing, and thus

imperils the privilege’s objective of optimal lawyering

preparation and considered client decision-making.

This Petition for a Writ of Certiorari should be granted

to review whether a segmented, thought-by-thought

approach to applying the attorney-client privilege during an oral consultation with counsel is federal law.

---------------------------------♦---------------------------------

2

In this prosecution, that question was never presented

squarely in the courts below. See, e.g., United States v. Ivers, 967

F.3d 709, 717 n.4 (8th Cir. 2020) (App. 14a n.8) (“Because the government did not argue to the district court that the crime-fraud

exception to the attorney-client privilege applies, and concedes

that it does not apply on appeal, we need not address that issue.”);

United States v. Ivers, 2018 WL 11025541, at *2 n.2 (D. Minn.

June 26, 2018), aff ’d, 967 F.3d 709 (8th Cir. 2020) (App. 30a n.2)

(“The Government is not asserting the crime-fraud exception

. . . .”).

4

ARGUMENT

I.

ANY PROPER INTERPRETATION OF THE

ATTORNEY-CLIENT PRIVILEGE MUST

DELIVER PREDICTABILITY, OR IT WILL

FAIL IN ITS OBJECTIVE OF ENCOURAGING CLIENT CANDOR.

The attorney-client privilege has a long and venerable history. It originated centuries ago as a protection held by legal advisors (not clients), designed to

safeguard their professional honor, but later evolved

into a protection held by the clients (not their advisors), so as to secure a client’s liberty in acting. See

PAUL R. RICE, ATTORNEY-CLIENT PRIVILEGE IN THE

UNITED STATES §§ 1.1-1.13 (2020). By the time the privilege found its way into American case law, its objective

and rationale were settled:

The rule which places the seal of secrecy upon

communications between client and attorney

is founded upon the necessity, in the interest

and administration of justice, of the aid of persons having knowledge of the law and skilled

in its practice, which assistance can only be

safely and readily availed of when free from

the consequences or the apprehension of disclosure.

Hunt v. Blackburn, 128 U.S. 464, 470 (1888). See generally Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108

(2009) (“We readily acknowledge the importance of the

attorney-client privilege, which ‘is one of the oldest recognized privileges for confidential communications.’ ”)

5

(quoting Swidler & Berlin v. United States, 524 U.S.

399, 403 (1998)).

By freeing both advisee and advisor from those

consequences and apprehensions by the shield of confidentiality, the privilege is well positioned “to encourage full and frank communication” between client and

counsel, enabling thereby counsel’s ability to impart

an optimal level of “sound legal advice or advocacy,”

which, in turn, “promote[s] broader public interests in

the observance of law and administration of justice.”

Upjohn Co. v. United States, 449 U.S. 383, 393 (1981).

The triggering attribute that ushers in this sequence

of privilege-conferred benefits is client willingness. The

privilege endeavors to incentivize that willingness by

its protection, but that incentivizing occurs only if the

protection is perceived subjectively to be in place by

those from whom the trust must be given. Thus, at

ground, the privilege works not because of the protection it affords, but because the protection it affords is

predictable.

The importance of predictability to the law of privileges is difficult to overstate. It is an attribute this

Court has never discounted. Predictability was a core

link in the Court’s reasoning in Upjohn Co. v. United

States, which faulted one approach to the privilege in

the corporate employee context because it would be

“difficult to apply in practice.” Upjohn Co., 449 U.S. at

393. After noting that “no abstractly formulated and

unvarying ‘test’ will necessarily enable courts to decide

questions such as this with mathematical precision,”

the Court nonetheless reinforced the decisive value of

6

predictability when devising a formulation for the

privilege:

But if the purpose of the attorney–client privilege is to be served, the attorney and client

must be able to predict with some degree of

certainty whether particular discussions will

be protected. An uncertain privilege, or one

which purports to be certain but results in

widely varying applications by the courts, is

little better than no privilege at all.

Id. See also In re County of Erie, 473 F.3d 413, 417-18

(2d Cir. 2007) (“To ‘encourage full and frank communications between attorneys and clients,’ lawyers and clients need to know which of their communications are

protected.”) (quoting Upjohn, 449 U.S. at 389).

Fifteen years later, this Court highlighted predictability when it rejected the notion that a psychotherapist/patient privilege ought to be made to depend on a

subsequent balancing by the trial court of patient privacy against evidentiary need. Quoting from Upjohn,

the Court wrote that “if the purpose of the privilege is

to be served, the participants in the confidential conversation ‘must be able to predict with some degree of

certainty whether particular discussions will be protected.’ ” Jaffee v. Redmond, 518 U.S. 1, 17-18 (1996)

(quoting Upjohn, 449 U.S. at 393).

Because of the essential role predictability plays

in the functioning of the attorney-client privilege, any

approach to interpreting and applying the privilege

must first be measured against that prerequisite: Will

7

the proposed approach allow the client to fairly discern

the boundary between what is shielded in confidence

and what is not?

II.

THE SEGMENTED EVALUATION APPROACH

TO THE PRIVILEGE ENDORSED BY THE

COURTS BELOW IS NEITHER REALISTIC

NOR FUNCTIONAL; IT IMPERILS PREDICTABILITY.

Before the Court of Appeals, the Government

framed its litigating position unambiguously: “This

Court should uphold the jury’s verdict. Ivers’s threat

was not protected by the attorney-client privilege because it was not made for the purpose of obtaining legal advice.” See Brief of Appellee at 24-25, in United

States v. Ivers, No. 19-1563, 2019 WL 3947835 (8th Cir.

2019) (“Government’s Eighth Circuit Brief ”). Thus, the

Government argued, the trial court “properly segregated Ivers’s vitriolic rant”—because, during it, he “did

not ask any questions and [his] attorneys remained silent—from the privileged portion of the consultation in

which the attorneys provided legal advice.” Id. at 26.

Both the trial judge and the Court of Appeals accepted and applied the Government’s segmented approach to the privilege. See United States v. Ivers (Ivers

I), 2018 WL 11025541, at *3 (D. Minn. June 26, 2018)

(App. at 32a) (“The Court is more persuaded by the numerous other cases—mostly civil cases, in fact—that

support the Government’s argument that statements

not made in pursuit of legal advice can be separated

from those statements that are, and the statements

8

not made for the purpose of seeking legal advice will

not be protected by the attorney-client privilege.”);

United States v. Ivers (Ivers II), 967 F.3d 709, 717 (8th

Cir. 2020) (App. at 12a) (“The first part of the call in

which Ivers was actually receiving legal advice is easily severable from the second part of the call, in which

Ivers ranted about and threatened Judge Wright.”).

This approach is unsound and portends to do great

mischief to the attorney-client privilege.

Preliminarily, all seem to agree that the statement

at issue was made during a phone call convened by

counsel for the sole and privileged purpose of consulting with their client. The Government seems to concede this. See Government’s Eighth Circuit Brief at 1415 (noting referral to pro bono counsel, and that “the

attorneys conducted a phone consultation to provide

Ivers with their conclusions and to inform him of their

decision against taking his case”); id. at 31-32 (“That

portion of the call was protected by the attorney-client

privilege. . . .”). The trial court concurred. See Ivers I,

2018 WL 11025541, at *4 (App. at 35a) (recounting

counsel’s testimony about the phone call, “the purpose

of which was for Defendant to obtain legal advice in a

pending civil lawsuit”). The Court of Appeals agreed.

See Ivers II, 967 F.3d at 716-17 (App. at 12a) (“the communications made in the first part of the call were indisputably for the purpose of obtaining legal services,

as they concerned the merits of Ivers’s lawsuit and the

attorneys’ opinions as to Ivers’s prospects for success”).

9

The only open question, then as here, is whether

Petitioner’s “venting” portion of this private clientcounsel consultation lost its claim to the attorney-client privilege because the particular statements at issue were not questions posed by the client actively

inviting specific advice from his legal advisors.

In its ruling adopting the Government’s segmented approach to the privilege, the district court

cited case law for the familiar proposition that those

portions of documents that contain privileged content

may be withheld, but the remaining portions may not.

See Ivers I, 2018 WL 11025541, at *3 (App. at 33a) (parenthetically summarizing one Maryland district court

opinion as: “examining documents paragraph by paragraph and ordering the disclosure of those portions

that related more to business strategy than legal strategy”). From this uncontroversial body of precedent, the

trial court deduced a license to apply a sweeping segmented approach to the privilege in all settings: “Thus,

the Court concludes that it may examine the individual statements made by Defendant in his conversation

with Attorney A to determine whether they are protected by the attorney-client privilege.” Id.3

3

The courts below also relied on the Ninth Circuit’s decision

in United States v. Alexander, 287 F.3d 811 (9th Cir. 2002), which

held that a client’s threats to commit future violent crimes were

not privileged. The Alexander opinion is not helpful guidance here

for at least two reasons. First, that opinion notes that the defendant had uttered threats in the presence of counsel, but offers no

details about those communicative events. If the defendant had

randomly phoned counsel to threaten him, the consultative context—essential to the privilege’s application and “indisputably”

10

The document privilege analogy is not fitting. If a

document analogy is to be imported at all into this context, the more apt question would ask whether a particular dependent clause snuggled within an otherwise

privileged sentence in that document can lose its entitlement to the privilege.

That is, after all, what the record demonstrates

happened here. During a private, consultative phone

call between counsel and client, convened for a singular, privileged purpose, “indisputably” privileged advice was given.4 The call concluded with counsel asking

their client whether he had any “further” questions of

them.5 Bookended in between, Petitioner vented—to

the very advice he was then hearing from his counsel.6

present here—would be absent. Second, unlike Petitioner here,

the defendant was an attorney, able to discern what sort of factual

sharing was relevant to legal advice and what was not.

4

See Transcript of Evidentiary Hearing on Defendant’s Motion to Exclude Attorney-Client Privileged Communication, in

United States v. Ivers, No. 0:18-cr-90 (D. Minn. June 18, 2018)

(“Hearing Tr.”) (App. at 48a) (“Q: And your goal with this consultation was to provide him legal advice on that civil lawsuit in front

of Judge Schultz? A: Yes. To give—we explained that we were going—our purpose, we were volunteers. And that our purpose was

to answer questions he had and to give him our assessment of the

case.”).

5

See Hearing Tr. (App. at 52a) (“Q: I think you said before

that at the end of the phone call when you were wrapping up, you

told him about your general legal opinion about the case. Was that

before or after? A: The general legal opinion about the case was

before. And then the threats happened. And then we did conclude

the call by asking if he had any further questions.”).

6

See Hearing Tr. (App. at 51a) (“Mr. Ivers was reacting

to our advice with respect to the attempted claim—basically the

11

This venting was specific; his anger was directed at

what he was learning about the preclusive effect on his

intended new lawsuit by the ruling of the former judge

in his earlier lawsuit.7 More specifically, his anger focused on what he considered the injustice and irregularity of the first lawsuit now being used by the law to

defeat his pursuit of a remedy in a later proceeding.8

His counsel did not interrupt him as he vented, choosing not to for a very particular reason:

At that point I had made the determination that I would kind of let him speak, you

know, wanting to make sure that he had felt

like his—like he had been heard, that he could

have a chance to explain, you know, what he

thought had occurred, you know, despite what

we had decided from a legal standpoint, to

kind of just have that conversation and allow

him to speak. So I mostly let him speak unhindered. I didn’t interject. And as he spoke, it

escalated very quickly and it kind of became

essentially just a rant, an angry rant based

attempt to bring a—the same claim in a different legal box, which

we told him would not work.”)

7

See Hearing Tr. (App. at 53a-54a) (“Q: And that’s what he

was upset about, right? He was upset about the Judge’s reasoning

in the first case? A: Yes. His anger was directed primarily at

Judge Wright. Q: About her decision in the other case? A: Yes.”).

8

See Hearing Tr. (App. at 58a) (“Q: [D]id you understand

what he was talking about in reference to the didn’t read the fine

print and missed the 30 days to seek a new trial? What was that

about? A: That was what I was referring to, where he had missed

the deadline for him to seek a new trial. And he was talking about

what he would’ve done in the courtroom that day had there been

a hearing in front of [the judge].”).

12

on—or discussing what had happened in the

case in front of Judge Wright.9

Client venting (even angry, raging disappointment) at legal advice is hardly uncommon. In fact,

managing, mitigating, and productively channeling a

client’s emotions is legal advice. See ABA MODEL RULES

OF PRO. CONDUCT r. 2.1 (“In rendering advice, a lawyer

may refer not only to law but to other considerations

such as moral, economic, social and political factors

that may be relevant to the client’s situation.”); id. cmt.

1 (“Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.

In presenting advice, a lawyer endeavors to sustain the

client’s morale and may put advice in as acceptable a

form as honesty permits.”); id. cmt. 2 (“Although a lawyer is not a moral advisor as such, moral and ethical

considerations impinge upon most legal questions and

may decisively influence how the law will be applied.”).

See generally United States v. Eirven, 987 F.2d 634, 636

(9th Cir. 1993) (noting that defendants are “supposed

to feel free to explore all possible options” with their

attorneys, and “[i]f one of the options is improper, it’s

the job of the attorney, who knows much more about

the often Byzantine rules of our criminal justice system than the defendant, to dissuade the defendant

from taking it.”).

No doubt, threats by a client may well be different.

Consequently, the law affords counsel ample maneuvering space to share confidential client information in

9

See Hearing Tr. (App. at 62a).

13

a limited manner to prevent injury, harm, or death. See

ABA MODEL RULES OF PRO. CONDUCT r. 1.6(b). Permitting such disclosures to stave off a future criminal act

is one step. Receiving testimony from counsel against

their clients in a later prosecution is a far different

step. The Supreme Judicial Court of Massachusetts

cautioned reserve in that latter setting because:

Lawyers will be reluctant to come forward if

they know that the information that they disclose may lead to adverse consequences to

their clients. A practice of the use of such disclosures might prompt a lawyer to warn a client in advance that the disclosure of certain

information may not be held confidential,

thereby chilling free discourse between lawyer and client and reducing the prospect that

the lawyer will learn of a serious threat to the

well-being of others.

Purcell v. Dist. Att’y for Suffolk Dist., 676 N.E.2d 436,

440 (Mass. 1997).10

But the courts below did not rule that an exception

to the attorney-client privilege permitted the evidentiary use of threats. Instead, the courts below held that

threats were unprivileged because Petitioner’s entire

vent was unprivileged because it was not uttered in

10

Likewise, for many similar reasons, it is prudent to consider crafting exceptions to the attorney-client privilege gingerly.

It is easy to imagine, for example, a parent in a pediatric medical

malpractice case, a spouse in a contentious divorce case, or a dismissed employee in an age discrimination case venting in an immoderate way that counsels against any new, bright-line “threat”

exception to the privilege.

14

active search for legal advice. Ergo, the more fitting dependent-clause analogy.

One wonders if the courts below would have ruled

differently had Petitioner added a closing sentence to

his venting, something like “So, in light of all I’ve just

told you about what I think was the flawed first trial,

should I still be precluded?” or “So, why should I be

precluded if the first trial was as unfair as I found it to

be?” That closing inquiry is all that is missing here.

The venting, as Petitioner’s counsel recounted it, was

mired in a client’s disbelief that what he found to be an

injustice in his first lawsuit was now to be compounded

by an injustice in his second try, all because of that first

ruling. Petitioner’s incredulity evidently was quite animated, but there is no denying it was part and parcel

of, squarely related to, and inseparable from the privileged purpose of his consultative discussion with counsel.

Petitioner is not trained in the law. Few lawyers

would agree that the elements and nuances of civil preclusion theory come quickly to mind.11 It is certainly

easy to imagine a nonlawyer querying counsel whether

unfairness in a first proceeding could warrant an exemption from its preclusive effects in a second trial.

The point is not that Petitioner’s understanding of

11

That just this past Term the Court had occasion to rule on

a still unsettled preclusion nuance tends to confirm the point. See

Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140

S. Ct. 1589 (2020) (considering whether “defense preclusion” exists “as a standalone category of res judicata, unmoored from the

two guideposts of issue preclusion and claim preclusion”).

15

preclusion theory is correct, or that the preclusion escape-hatch he seemed to be arguing for exists, or that

an actual threat to commit a future criminal act should

be privileged. But an approach to the privilege that disqualifies Petitioner’s venting simply because it was not

punctuated with a thought-concluding question mark

is dangerous

Lawyers, like those for Petitioner here, are well

served by encouraging their clients to speak freely in

as candid and forthcoming a manner as they’d like.

That is, after all, the whole point of the attorney-client

privilege. See generally Eirven, 987 F.2d at 636 (rejecting an interpretation of the federal sentencing guidelines that would “punish defendants for things they

say to their lawyers when discussing legal strategy,”

reasoning: “A defendant who knows that saying something impermissible to his lawyer can mean extra

years in prison—and who knows how little he knows

about what exactly is permissible—may well become

afraid to say anything,” thus defeating the opportunity

for taking “full advantage of his Sixth Amendment

right to effective legal assistance”).

Granting the privilege this wide a berth benefits

the lawyering task in many ways. It allows for a fulsome understanding of all the facts and feelings,

which could prove valuable—a fact shared in a venting session might present the winning angle for the

lawyer’s future advocacy. It engenders in the client a

sense of confidence in the lawyer’s empathy for the

client’s cause. It stimulates a trust and camaraderie

with the lawyer that can prove indispensable over

16

the course of the representation. It affords the lawyer

a preview into the client’s likely persona and demeanor

when called to testify. This is the fabric of the privilege

and the very setting that the privilege is designed to

create.

A segmented, thought-by-thought approach to the

attorney-client privilege would leave much of these

critical client-counsel moments vulnerable to disclosure. Many of those statements surmised above may

well fail under a test that asks, utterance by utterance,

whether this or that particular remark was posed as a

question in active pursuit of legal advice.

The segmented approach applied by the courts below is unrealistic in its understanding of the clientcounsel consultative act and unworkable in actual

practice. It will fail to afford clients the ability to reasonably, fairly predict when the privilege shields their

communication and when it does not. Single-topic oral

consultations, convened for an “indisputably” privileged purpose, cannot be dissected thought-by-thought

without disserving the objective of the attorney-client

privilege. This Petition should be granted to ward off

that mischief.

---------------------------------♦---------------------------------

CONCLUSION

For these reasons and others set out by Petitioner’s counsel, we endorse the request to grant a Writ

of Certiorari to the United States Court of Appeals for

17

the Eighth Circuit to review the attorney-client privilege analysis applied in the decisions below.

Respectfully submitted,

I. RICHARD GERSHON

UNIVERSITY OF MISSISSIPPI

SCHOOL OF LAW

481 Chucky Mullins Drive

University, MS 38677

(662) 915-6918

igershon@olemiss.edu

April 1, 2021

WILLIAM M. JANSSEN

Counsel of Record*

CHARLESTON SCHOOL

OF LAW

81 Mary Street

Charleston, SC 29403

(843) 377-2442

wjanssen@charlestonlaw.edu