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23 Litig. News 1 (1997-1998)

handle is hein.journals/lignws23 and id is 1 raw text is: American Bar Association 750 North Lake Shore Drive Chicago, Illinois 60611-4497 Nonproit Organizatiou LIS. postage PAID American Bar Association LITIGATION NEWS A PUIILICATION OF TIlE SEI'OIN OF LITIGATION - AMERICAN BAR ASSOCIATION • NOVEMIIER 1997 VOL. 23, NO. I I 51!DE : THREE FOR FREE Join a Section Committee see insert Depositions ,,.Dos*& Don'ts I e-The basics that we often ,overlook. . Page 3 The rules of video i.dcp.,.sitions. , 'An argument for lawycrs emaining hands on pre- and post-depositions. Page 3 Contingent Plans - Court bolsters IRS challenges to classification of contingent workers. Page 7 Jeopardizing the Case - Court intcrprets civil penalty proceeding to preclude later criminal indictment under Fifth Amendment. Page 2 'Protecting the Privilege , Third edition'ofa Section staple on the attorney-client privilege and work-product I doctrine reviewed. 'Page 8 IEzclu~s Legal Publishing Sponsor I t a case whose dicla llay have wider raniilications tltath its holding, the D.C. Court of Appeals expressed grave doubts that a constitutional right to privacy it the nondisclosure of personal information exists. I American FItderaiut vf Go'run- inwt Iniphlyeis v. Dealrtment (f ttls- ing au Urban Deveo) ment, 118 F.3d 783 (D.C. Cir. 1997). the D.C. Circuit overruled orders of a district court enjoining two federal agencies frot requiring specilic employees to answer questions about their linancial histories auld abuse of controlled substances. Union representatives challenged the use of such questions by the Department of Ilousing and Urban Development (I UI)) Uand the Department of Defense (DOD). the district court enjoined II U nt) aid O)D front collecting such information on the grounds that it vio- lated the etipoyces' conslitutional right to keep private information with which the government does Uot have : legiti- Itlate concern. At the outset of its analysis, the D.C. Court of Appeals quest ioned the very existence of such a right. The court coi- I, N. I)Dwto BImtSCii 1,IIIAITION NEWs A VSIucIAir it:1 linl inented til the Delplhic manner in which the U.S. Suprcne Court has dis- cussed the issue without ever deciding it. The court noted that one reading of the cases cited by the Suprenc Court in constitutional privacy cases is that the Constitution prolects against llanda- tory disclosure only where it threatens at particularized right such as the associ- ational rights protected by the First Amendment. From the Mouths of Babes: Dealiug with the Chi Children pose unique challeng ItVSUSAN J. ltVCK. LIF If AI'I(N NEWs AsOIAIE I A re chilren so pure at heart that they are hicaipable of telling a falsehood oil the witness stand? Or, are they so inalleable and iipressioiable that judges anid juries should view their testimoly with a high degree of skeplicism? Isychiatrists, psychologists, and other experts have beei grappling with these lid Wituess esfor litigators R Ellrrolt of child aibuse and neglect. defending against or prose abuse clim, whether in a relations dispute or a critni liids herself adrift in at sea scientilic data and evidenli cernitig the child's testinio Sifting through collicti The D.C. Court ol Appeals chastised other courts that have interred broad constitutioal righlts tot expressly stated in the Constitution, noting that the Sec- ond, Third, and Fourth Circuits have all recognized a constitutional right to pri- vacy for al least sonic persoial itfonla- tion. The court stated that i telling fail- tire in such cases is the other court's failure to cite a specilic constitutial (P'ease filtit to pallge (-Iprivrly) clucstious for part of a litigator's challenge in every years, often case, hut the stakes in a child abuse in the context case are exceedingly high. If the ofenotion- allegations are false but the judge ally charged or jury finds the child's testimony cases involv- persuasive, the accused may he sel ing clais to jail, and, if the accused is a parent, A litigalor haIrred front all contact with his culiug a child child, If the allegations are true hul civil dlomestic the judge or jury ioes not credit the inal trial, often child's testimony, the child may be of conflicting returned to an enviroiment that will ary rules coil- undoubtedly scar hiln for life. uly. Children have Io be aipproached nIg evidence is ('lease urn to pag' 4-Child) D.C. Circuit Questions Employce Privacy Rights U.S. agencies' inquiries into eiployees'finances and drug use held not to violate Constitution Task Force on the Independent Lawyer Lawyers Urged Not to Serve on Client Boards BY )AVIn C. WItK4S I,Tmii Us N oms AsoilA F: 1114 What if you serve on your client's board of directors and are called in to parlic- ipate in the decision of whethcr or not the company should commence litigation? The decision will signilicantly affect the amount of fees your law finn may gen- crate from this client. If you participate in the decision you might later be ac- cused of self-dcalig, to the possible detriment of your client. If you abstain from the discussion, you deprive the corporation of the bcnelil of your opinion, which is one of the very reasons you were chosen to serve. This is one of many problematic scenarios faced by lawyers who sit on client boards. Such problems arc highlighted in the recently completed report, The (l'th'ase turn to page (--ndpendhnt)

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