A Criminal Enterprise

Court-Watching: Mohawk Industries, Inc. v. Carpenter

Posted in Cases, News by Bidish J. Sarma on October 6, 2009

Mohawk Industries, Inc. v. Carpenter presents the following question: whether a party may immediately appeal a discovery order to disclose materials said to be covered by the attorney-client privilege.  I was fortunate enough to attend the oral argument today.  Three advocates argued the case – one for the Petitioner; one for the Respondent; and one for the Solicitor General on behalf of the Respondent.  The transcript from the argument is available here.  I’ll only share a few quick observations from the argument because it’s a non-criminal case.

On her first regular day of oral arguments, Justice Sotomayor looked fairly comfortable on the bench.  She asked several probing questions that focused primarily on the purpose of the attorney-client privilege.  Though Sotomayor was quite engaged, Chief Justice Roberts took the most active role in this argument, particularly when Professor Judith Resnik argued the Respondent’s case.  It seemed clear that Roberts is quite concerned with protecting the attorney-client privilege (at least as presented here, in the corporate context: “In the private sector, when you are an attorney and you give advice to a client, you can’t say, This has got something. It’s the attorney-client privilege.”).  He seemed to favor the Petitioner’s claim that the privilege should be protected through access to a trial court finding of waiver with access to interlocutory appeal.  Roberts talked about the fundamental importance of the attorney-client privilege:

“But we are talking about the central privilege to the maintenance of the adversary system which we’ve determined to be central to maintaining the rule of law. This is not like the other privileges, priest-penitent, other evidentiary privileges, because it is the privilege that allows lawyers to protect the interests in those other cases.”

Roberts also pressed Professor Resnik on her claim that exceptions to the final judgment rule carry substantial costs.  As he said,

“Well, but the — you know, the — the American Bar Association has said the exact opposite. It will say that the opening up of the privilege and the disclosure, however rare the case is, will, in fact, undermine the — the value of the privilege.”

Given these strong statements, I can’t help but wonder if Roberts will articulate similar views about the importance of the attorney-client relationship for indigent criminal defendants?  And, will he give so much weight to the American Bar Association’s opinion when capital defendants cite to the ABA’s guidelines to the performance of defense counsel in capital cases, for example?  It seems unlikely.  But, advocates should look carefully at the questions he asked in this case and hold him to his word in other contexts.

I couldn’t get a clear read on whether the majority of the Court favored the approached set forth in Cohen, but I am pretty unfamiliar with the briefs and the issues argued here.

Also, Justice Clarence Thomas asked no questions during this oral argument.

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  1. […] emphasize the importance of the attorney-client relationship (in the corporate context) in the Mohawk oral argument, I wonder how this Court will treat that same relationship in the criminal (and collateral) […]


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