“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.