Some thoughts on attorney-client privilege

Note: This article was written by ROBIN READER (612) and was originally published on her website Broken Arrow Forum on October 21, 2010, and reappears here on this blog with her permission.

So many of those involved in supporting Sisney seem to be flocking to seek the legal advice of Thurman Lee Sisney. This is curious, since he doesn’t have a license to practice law in Oklahoma. What could be the purpose of claiming that he represents them?

From Beth Snellgrove’s deposition, we know that they have been communicating with Lee for quite some time. And of course there are the emails between Jim and Lee back in August 2008. If this group has been conspiring to protect Jim, influence the audit, and portray the BA schools administration as criminals in the media, there is undoubtedly a lot of communication that has gone on over the past couple of years. It would be very bad for them for this communication to be made public, or to be used as evidence in court or in an investigation into their activities.

Thurman Lee Sisney, Kentucky attorney and Jim Sisney's brother

It is convenient that Lee Sisney, who has been involved in the scheming from the beginning, is an attorney. If they claim that he is representing them, it makes all their communication with him privileged.  There are however some caveats and exceptions.

– Communication between the attorney and client is privileged, but facts (including their actions) are not.

– The communication is only privileged if it is between the attorney and client(s) and no one else. That means that any conversations (including email exchanges) that included anybody not claiming to be represented in this matter by Lee Sisney is not protected. In addition, any communication that was later repeated to anyone else (including forwarded emails) who does not claim to be Lee Sisney’s client is not protected.

– Attorney-client privilege exists for the protection of the client, not the attorney.

– Communications between an attorney and client are not privileged when the attorney’s services are utilized in furtherance of a crime or fraud. This is true regardless of the attorney’s awareness or participation in the crime or fraud. An extensive explanation is here:  Crime-Fraud Exception to Attorney-Client Exception

Sherri Combs is rumored to be claiming to be represented by Lee Sisney now too.  If Lee communicated with her and the group including Jim Sisney, the two representatives, the two board members, and the two citizens, it seems likely that they would want to keep their communications confidential. This is especially likely given the extreme reluctance shown by Jim Sisney, Chris Tharp, and the representatives to provide any testimony or evidence in court.

Since communications are privileged only if all parties involved in the communication are clients, that may explain the overwhelming popularity of a lawyer in another state who is not even licensed to practice in Oklahoma. Lee Sisney may need his “clients” too, in order to keep his own communications confidential. He has been involved since the beginning of the controversy, and there is probably a lot that would show his involvement in the PR campaign and the efforts to influence the audit.

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