“A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told” US Supreme Court ruling in Clark v United States which held there to be at least one exception to the Attorney-Client privilege rules
We’re still waiting to hear if the Connecticut Superior Court is going to accede to NAMA’s request to classify its application against the Dunnes, Sean and Gayle, “The Dunner and The Dunnertrix” as a “complex litigation” – the Dunnes are objecting to the move which would see them subjected to a more intensive legal action in a case in which the Dunnes say there is no case to answer, and that NAMA is just on a fishing expedition and is undermining the reputation and business of Gayle in particular. The listing above shows the latest filings in the case and was obtained on 19th November 2012.
However, we learn from Shane Phelan at the Independent today that NAMA is “moving to subpoena” a former lawyer of the Dunnes to give evidence against them. The New York lawyer, Philip Teplen, previously apparently assisted the Dunnes with obtaining their US visas and setting up a US business – at one stage, 38 Bush Avenue in Connecticut was registered in Philip Teplen’s name and that property is one of several where NAMA is alleging shenanigans, with Gayle using Sean’s money, money which should rightly be going to pay down the €185m judgment that NAMA obtained against Sean earlier this year. The relationship between the Dunnes and Philip Teplen broke down in December 2010, when Gayle sued Philip over the return of USD 500,000. Searches this morning fail to show how this case concluded though it looks as if it was settled.
The Independent seems pretty sure that the lawyer will testify against the Dunnes, with the headline “lawyer in Dunne row will testify for NAMA” though the body of the report is less certain and more conditional when it states “if the subpoena is successfully served, Mr Teplen will be legally obliged to give evidence unless he can successfully argue that he cannot disclose information about a former client.”
And herein lies a problem for NAMA – in general communications between lawyers and clients in the US are privileged meaning they can’t be disclosed to judges or litigants. But there are exceptions, and in the case of crimes such as fraud, the privilege is lifted, though it would be for NAMA to prove the fraud, which if it can do, probably wins them the case anyway. The Dunnes deny NAMA’s claims, and so far in Connecticut, it seems as if the judge has tended to side with the Dunnes, denying NAMA’s request for a freezing order last July and criticizing NAMA for portraying newspaper reports as evidence.
The latest move however, if confirmed, will underline NAMA’s commitment to this case where it has already deployed prominent out-of-state lawyers who are likely to be expensive, though not nearly as expensive as IBRC’s employment of Russian group Alfa in pursuit of Quinn assets, though it should be stressed that in the case of the Dunnes, no case has been proven against them and they deny NAMA’s central allegations.
UPDATE: 10th December, 2012. THe Sunday Business Post yesterday reported that last week, the judge in the Connecticut Superior Court acceded to NAMA’s application to have its case against the Dunnes classified as “complex litigation” and the SBP claims this means the entire case will be heard by a single judge. We await to hear if the Dunnes’ application to dismiss the entire case which was made last week will be successful.
If in advance of any proof of fraud; how can the lawyer in question give information on transactions if he is disposed to do so? Seems not?
@Dorothy I’m not a lawyer,but perhaps NAMA is going to claim that regarding 38 Bush,he was acting as a business advisor in which case the privilege may not apply.
@John you’re correct. US Privilege covers only legal advice and communications relating to legal advice. To the extent there were commercial arrangements and other facts, the lawyer may give evidence about them without breaching privilege.
PS Oral evidence is one thing, but given how business is conducted these days I’d say there’s some great emails out there that can be subject to discovery proceedings.
Thank ye for the responses; developments will no doubt be followed with interest here and elsewhere.
@Paul and Dorothy,NWL has exclusively published the deeds on some of the other transactions.Perhaps on Monday the one for 38 Bush will be available on line.
It appears that Mr.Teplen in not admitted to the bar in CT. where the transaction that he was at one point trustee occurred.If a CT. Attorney was used for the “legal” work,conveyance,planning etc.
It could get very interesting…..
http://teplenlaw.com/new-york-immigration-attorneys/attorneys/
Danke @John Gallaher; it could indeed. Fortsetzung folgt…
Lawyers testifying against their clients now. More and more, the fallout from cases involving developers, bankers, businessmen, property magnates and socialites resembles a plot from a cheap penny dreadful crime novel.
Unsurprising really. Once you stripped away the layers of designer suits, tans, and silk shirts, most of these people were cheap penny dreadfuls themselves. It’s disappointing to still see them being treated like aristocrats in the courts.
In the US it won’t be up to the lawyer to waive privilege. The privilege belongs to the client not the lawyer, and it won’t change the situation because they sued him. Nor I suspect will the change of Jurisdiction matter in this as the lawyer will meet the requirements of the ABA regardless of State.
Oh, and the principle they are shaving is one where privilege doesn’t exist if the the client tells the lawyer of a crime ‘about’ to be committed.
For me though, it would seem a career suicide for the lawyer to agree to help since it presupposes his knowledge of the intent and his part in it before the fact. A bit of an oops if he proceeded to self incriminate wouldn’t you say.
@VH and OMF,the question here is was he a lawyer or a business advisor.
I defer to Paul Q and his extremely illustrious and brillant partner Andrew..
Thank you Paul for the comments all best with the site looks amazing,wish you all the best.
http://www.newswhip.com/About
I doubt it. I know a fellow in St Louis who is a lawyer and his busiest season is the tax season. It doesn’t change the Lawyering bit of him.
@VH the intent on here is to keep it general,lets review the deed and planning files.Establish if Mr Teplen acted in CT. in a “legal” capacity,or as a business advisor and continue the discussion.But a very interesting,sophisticated move by NAMA,or their horridly expensive white shoe lawyers.
Expect a robust and well argued defense,given the “history” btw. the parties it will be entertaining,almost inclined to file an amicus curiae myself.
http://en.wikipedia.org/wiki/Amicus_curiae
Look forward to that file under amicus curiae? why?
@Dorothy,how’s North Dublin bit of a cold snap,given the ahem German references all over the Irish media,today,I had to look up awaits additional documentation,why not.
I have the time,cash and interest ?
I would say my distaste and plain animosity for one the protagonists here may spur me to action,judge a man by his friends and all that.Carpirous immigration lawyers,a woman standing by a “bust” Irish developer.
But necessity provides,my first boss explained life..
“Strange things done under the midnight sun,by the me who toil for gold”
NAMA can anticipate a lively joust on here courtesy of the always accommodating NWL,good to have you back Dorothy.
Hey @John Gallaher; North Dublin doin’ good! Certain migratorary birds stay here now in the estuary in malahide because the weather has been so mild thelast two years.
I’m one of them.
What’s their legal status in the US I wonder. Didn’t think it was that easy for non-US citizens to set up shop without a green card etc.