But it doesn't allow you to avoid billing for the accounting related to the project.
Easy, put a table in your database that gives you the billing rate as a function of the identity of the person doing the work and the type of activity. The total amount billed can then be calculated in SQL. Generating a complete bill is more difficult, but most law firms don't give a complete breakdown of professional services because of the resultilng size of the bill. The only accounting that needs to be done happens when money changes hands.
You've got it basically right (although the top-level grouping for templates should probably be by jurisdiction to cater for the differences across jurisdiction; they do exist and they are significant enough to cause an effort like this problems), the trick is knowing what general classes of document exist and what basic information needs to be passed through the interface to your templates. If you want to internationalize the effort then bear in mind that the United States is somewhat different procedurally from other common law jurisdictions.
You should also consider the move towards electronic filing of documents, and have a look at what's being done about mandated filing formats in jurisdictions near you.
In most large firms what you're talking about is a Solved Problem. Their precedent systems (usually) have the added advantage of being integrated with the firm's client database so that all you have to say is "Create a claim for file x to file in court y" and you'll have a blank claim with all the basic details (names of parties, etc) filled in. In most cases they use Word templates rather than LaTeX and you'll be forced to work with that, but don't let that hold you back from creating alternatives for the profession at large to try.
Your point is taken, but tracking billable hours != accounting. In addition, lawyers usually (YMMV depending on jurisdiction) have their own set of rules to follow for trust accounting.
A legal billing system has to be accessible to everybody in the office who works on a particular matter and can work out how much the client needs to pay on the basis of the type of work and the position of the person doing it. What the submitter was asking for, as I see it, was a system where practitioners can simply enter their identity, the number of billable units allocated and a short narration for each item of work done. Tracking monies received and the outlays for each matter is a separate problem that's only related by the fact that professional fees are worked out on the basis of what's in the timesheets.
IWBALBNM (I Will Be A Lawyer By Next Monday), and from my own experience you should consider a custom app. Each firm generally has its own systems that might not quite fit the Way as envisaged by the vendor of your choice. Additionally, your requirements aren't very demanding: all you need is a system to track clients, matters, and time-sheet entries, and a way to link those together. This is the job that relational databases were built for.
Additionally, if you pick an RDBMS that integrates well with whatever office suite you choose then it's fairly easy to tie the firm's database in with its precedent system, allowing you to auto-generate letters and court documents with all the basic details (names and addresses, names of parties to proceedings, etc) already filled in.
Doing it right can be challenging, but I can tell you that working with a system that forces you to work according to its assumptions about what should be done is extremely frustrating.
Yes, but the matter/anti-matter fuel streams are themselves in a plasma state. AFAIK it's impossible to do magnetic containment on a gas like deuterium properly unless it's either very hot or very cold. And although Voyager's fuel injection columns were straight cylinders, the Enterprise's core definitely had a stack of tori feeding it. If I were to speculate, they seemed to use rings of circulating plasma in conjunction with a standing B-field to create a magnetic bottle that was shuffled down the column into the conversion chamber.
Didn't you read the blurb? The network is purposefully insecure to allow for communications under "difficult circumstances". I don't know what "difficult circumstances" are exactly, but if I had to guess I'd say that the wind and cold kept putting their firewalls out.
It seems to me that you are committing a fallacy in your critique by assuming that the unique views of a group of individuals can be reduced to a single, organic will directed in favour of a single candidate that can be measured with a reasonable amount of certainty and objectivity. I don't think that's the purpose of IRV or should be the objective of a sensible voting system. IRV seeks to establish a consensus view in the absence of a clear majority opinion.
I believe that if you re-evaluate your second and third examples from this perspective you'll see that the results make a lot more sense. The third-party voters are brought in to resolve the deadlock between the two majority groups and even the differences in opinion between the majority factions are taken into account. Your first example is somewhat artificial as preference relationships tend to be undirected, i.e. if Minor voters like Major1 then Major1 voters ought to like Minor on the grounds that they are similar (consider Democrats voting Republican ahead of the Greens). It is conceivable that this is not the case, however we now have the same problem: the views of the individual voters in the electorate are interacting in complex ways that probably aren't measurable by any reasonably simple system.
This is assuming the restriction on employment is in itself legal, and that itself is a point of contention in many juristictions.
Agreed, but that's a matter generally covered by statutory regimes governing employment and competition law, not the general law of contract. In the case of competition law, the clause is generally void or it isn't: whether consideration is given is irrelevant to achieving the policy objectives of the statutes. I don't know so much about employment law; my home jurisdiction seems content to leave restraint of trade clauses in employment contracts to the common law.
In the one major contract dispute that made it down this road, this -was- considered by the arbitrating party.
Granted, in most cases it would be considered, but you're confusing the underlying rule that "covenants restraining trade should be reasonable" with the application of that rule to specific circumstances. The existence or not of some benefit made conditional on the operation of the restraint clause is important, but it is not (as you originally claimed) determinative of whether the clause is unreasonable in all the circumstances of a particular case.
Um, no. Termination of employment does not necessarily signifiy termination of the contract on which that employment was based. Termination of employment means that the parties are no longer bound by certain obligations, i.e. the employee is no longer obliged to do work for the employer, and the employer is no longer obliged to pay the employee the agreed sums of money as and when they become payable.
Termination of the contract is governed by the terms of the contract itself and by the law governing termination in situations were it makes no sense for the contract to remain on foot, i.e. termination for frustration, breach of a fundamental term, or repudiation. but as I said in my above post, the law does not force a strict one-to-one mapping between obligations. To do so would impose unnecessary rigidity and inflexibility on the forms of legal relationships that can be created through contracts.
These contracts are legal, I believe, if and only if there is consideration for the signee. This would mean you would have to recieve compensation, or something, in exchange for you not working.
The contract as a whole is only valid if it is a mutual promise for valuable consideration, but this does not mean there must be a quid pro quo for each individual term of the contract. The consideration for a contract of employment consists only of the benefits that accrue to the employee generally, not of specific benefits for each obligation the employee is required to fulfil.
The legislation you cited generally regulates the manner in which lawyers charge their fees generally, although there are provisions dealing for lawyers who act "without reasonable prospect of success" (which is very wrong, IMNSHO). Awards of costs in litigation are usually a matter within the discretion of the court, and are governed generally by common law and the rules of the court making the order.
And you shouldn't really use Austlii for legislation, it's usually not up to date. The offices of legislative counsel for each state's Parliament usually keep up-to-date, but unauthorized, electronic reprints, and you can check Scaleplus for Commonwealth legislation.
Certainly. Your analogy is specious. The reason is that an Act of Congress is not necessarily an atomic unit of law, but simply a single exercise of legislative authority.
To put an example, let's say a state legislature passes a "Public Morality Act" making it an offence to, inter alia:
solicit in a pubic place (i.e. engage in street prostitution
engage in anal intercourse anywhere under any circumstances
likewise engage in homosexual acts
Now, although these offences are all brought in under the same act of the legislature, they are nonetheless logically separate and distinct from each other. So the constitutional court can rule on the validity of one without disturbing the others in any way. Hence, in the example, the prostitution offence would probably survive since it serves the legitimate state interests of public order and safety, even though the other offences would probably be struck out.
The overall point I'm trying to make (and to which the other poster alluded) is that an Act of Congress will establish or alter any number of propositions and principles of law having a complex network of dependency relationships. When rules or principles are related, such that striking out one will alter or render nonsensical the others, the whole house of cards will fall down. In other cases, a rule or principle independent of the others can be "severed" from the Act and killed on its own.
Since I haven't read the order, I don't know on what basis the judge in this case made her decision.
I can't speak to the constitutional aspects of the property argument, though it seems to be otherwise sound. But since the original article was published on Tuesday the 20th, and the article reporting the decision was published on the 22nd (referring to a hearing on "Tuesday evening"), I assume the order was only an interim order made without a detailed examination of the merits.
The problem is that the press tends to interpret its duty in accordance with its own financial interest (what will rate or sell newspapers) rather than in accordance with the relevance and importance of the story or information in the public affairs of the nation. The interest of the public is not the same as the public interest.
Now, the injunction that has been granted is just an interim or interlocutory order, which is a temporary order designed to preserve the status quo until the matter can be finally determined at trial. It may be that after careful determination of all the issues the court will find that the public interest obviates the confidential nature of the documents and the order will be lifted. On the other hand, Diebold's right to confidence and privacy of counsel may prevail. By making the order, the judge is simply saying that there is a serious matter to be tried and that Diebold is in jeopardy of irreparable harm should the newspaper be allowed to publish the undisclosed documents.
Your position is that the court should not be permitted to inquire about the matter at all. Since a legal right only exists if it is backed by the power to enforce it, you would, by ousting the jurisdiction of the court to look behind the circumstances and reasons for detection and publication of the information, completely destroy any right to confidentiality or privacy.
The position on inadvertent loss of privilege is different in Australia (where I come from). Although privilege can be deliberately waived, privilege may be preserved where privileged information is mistakenly released (usually in the form of mistaken discovery of privileged documents in civil proceedings). This must be distinguished from the case where documents fall into the hands of a third party, although equity may intercede according to the circumstances of the case. In all cases privilege must be considered separately to the equitable duty of confidence. I have heard it said that Australia and England are much stronger equity jurisdictions than the United States, so perhaps that explains why Anglo-Australian courts are happier granting injunctions in these cases.
Needless to say, this creates all sorts of fun ethical problems for solicitors (and sometimes barristers) who are tainted after having read material that shouldn't have been discovered.
See Calcraft v Guest [1898] 1 QB 759 and ITC Film Distributors v Video Exchange Limited [1982] Ch 431 for some of the prinicples of equity involved. See Hooker v Darling Harbour Authority (1987) 9 NSWR 538 and Kabwand Pty Ltd & Ors v National Australia Bank Ltd (1987) 16 FCR 85 for the basic principles on imputed waiver for inadvertently released information.
With regard to New York Times v US, I would not be so eager to hold out a 5-4 decision as conclusive authority for a given point, especially given the more relaxed attitude higher courts have towards stare decisis in modern times. And although the First Amendment supercedes state and Federal law, the Sixth Amendment guarantees the right to the assistance of counsel in a criminal trial. As I would consider privilege an important adjunct to that right, and given the equal status the Sixth Amendment enjoys with the First, is it certain that professional privilege doesn't also enjoy an elevated status, at least in criminal matters?
First, if the documents are given to the press, whether intentionally, accidentally or via a leak, they are no longer confidential.
Ah, so the fact that they're given to one person (or organization) means that they lose their confidential nature, despite the fact that none of the other six billion people on the planet know they exist. I see, it's all clear to me now. Your basic point is correct, and you will note the distinction the court made between documents already published and documents yet to be published.
this happens all the time in almost all high profile cases, many times intentionally.
And always with the client's prior knowledge and consent in the light of professional advice that this will help his or her case.
Second, the attorney-client privilege applies to the government tapping and recording communications between lawyers and their clients and then turning around and using those against the defendants in a court of law.
No. Rights are rights, and it doesn't matter whether they're infringed by the government or by private actors, the fact remains that they have been infringed. Legal professional privilege always applies, both to civil and criminal cases. It is (or should be) a substantive legal right, not just a rule of evidence.
The person that leaked the memos did something wrong. The newspaper that repoted them did nothing wrong.
So if someone breaks into your house (unlawfully), arranges to take photos of you in a compromising position (unlawfully), and a journalist is invited to view these photos on the burglar's own premises and equipment (lawfully) and copy them for publication (lawfully with the burglar's licence) then that's alright? See my other post for a refutation of this point.
As we slashdotters like to say from time to time: once the cat is out of the bag you can't put it back.
Which is why the newspaper has not been enjoined with respect to those documents already in the public domain, only those that are as yet unpublished.
Why are the newspapers having the corrective burden placed upon them?
They're not. They haven't been ordered to pay damages or compensation, they've simply been told what they cannot do with the documents in order to prevent further infringement of Diebold's right to confidentiality in the lawyer-client relationship.
The newspaper in this case DID receive the information lawfully.
It's true that they committed no breach of the law in receiving the information, but the law says they shouldn't have received that information, and sometimes the law imposes an obligation not to take advantage of things that shouldn't have happened. Receipt of confidential information is such a case.
Do a google for "bob novak" and "valerie plame" if you want some examples of a journalist receiving information that was provided to him illegally.
I'm familiar with the Plume scandal. The relevant difference is that nobody's recognized basic rights are being directly breached by the release of that information. It's true that the public interest in the effective operation of the intelligence services, Plume's career, and the well-being of any overseas contacts she may have worked with are at risk, but that must be balanced against the public interest that government be properly scrutinized.
In any event, there is no automatic right for the press to publish whatever they happen to find. You should read the decision in the Pentagon Papers case to get a feel for some of the considerations that have to be taken into account. I'm not an American, but IMNSHO what Novak did by publishing was wrong and quite possibly treasonous, especially since it appears he was acting as a tool of oppression rather than an independent journalist.
The fact that Jason Schultz (or you) want to talk about copyright does not change the facts of the case or the applicable law. The documents in issue are privileged and confidential, and the parent post to which I originally replied did not make any express point about the DMCA, but rather a vague, general point about freedom of speech.
The decision you referred to is a somewhat faulty analogy: recieving information you know to have been obtained by breach of confidence or you know is being given to you in breach of confidence is different from picking up a report on display in a room which essentially anyone can access. In any event, the statute forbidding the publication of sexual assault victims' identity under any circumstances was shot down because it was far too broad, and couldn't cover situations where the newspaper came by information lawfully (access to the report containing the victim's name was not restricted in any way). The court cannot simply rewrite an offending provision according to whatever feels right to the judicial gut, it can only uphold it or declare it void. There are occasions where reading down or severance of one part of a law is allowed, but (IIRC) in the case of reading down the non-offending interpretation must be acceptable in the light of the intention conveyed by the words of the statute, and in the case of severance (again IIRC) the part of the law to be struck out must be clearly separable from the part to be upheld.
There is no public good that could come of people knowing my dirty secrets, but it is very much in the public's interest for citizens to know exactly what hands we're placing our votes* in.
That seems to be a nice example of the general position, "I trust myself implicitly so I don't need oversight, but you, sir, are another matter". Your point on public interest is taken, but public interest is a very slippery concept, especially when you're using it to try and define the scope of important basic rights. Does the public interest allow for legal professional privilege to be restricted in cases of treason or similarly serious crimes? Does anybody who has dealings with the government lose their right to legal professional privilege, or only those who are involved in important government functions. If the latter, precisely how important is "important", and should the privilege be lost or only restricted in some way?
It's a question that judges don't like dealing with precisely because of its subjectivity. Of course, there are limits to lawyer-client privilege and confidentiality, such as when a person obtains advice to deliberately facilitate an illegal activity. However the focus should ultimately be on government, which is ultimately the party responsible for making its own processes (electoral or otherwise) open and accountable. Transferring that burden onto others by eroding their basic rights, even if they are in our opinion Bad People, is somewhat dangerous.
magical nanoprobes that could do anything from defeat unstoppable aliens, cut 10,000 lightyears off our trip, and warm up Janeway's coffee after a hard day's work on an away team
Don't forget: they also brought Neelix back from the dead!
Except the case isn't just about freedom of speech, it's about the confidential nature of the lawyer-client relationship. To illustrate, let me pose a hypothetical.
You're the accused in a high-profile case on some new, egregious law, a la the DMCA or PATRIOT Act. You're not certain about whether you're guilty or not given the novelty of the provision under which you're charged, so you seek legal advice, making full and frank disclosure of what you've done so your lawyer can give you the best advice possible. Somewhere along the way a "concerned citizen" gets ahold of the memos generated in the course of obtaining this advice and passes it to the prosecution, or, better yet, the press, who throw it into the public domain so it loses its quality of confidentiality.
Now, who's rights should prevail here? Your right to skilled legal representation and the necessary adjunct right of lawyer-client confidentiality, or freedom of speech? Granted, Diebold is a corporation and nobody's liberty is at stake, but Diebold is a vessel for the economic interests of its shareholders, so property (another important right) is at stake and ought to be protected, no?
Slashdot Mirror
But it doesn't allow you to avoid billing for the accounting related to the project.
Easy, put a table in your database that gives you the billing rate as a function of the identity of the person doing the work and the type of activity. The total amount billed can then be calculated in SQL. Generating a complete bill is more difficult, but most law firms don't give a complete breakdown of professional services because of the resultilng size of the bill. The only accounting that needs to be done happens when money changes hands.
You've got it basically right (although the top-level grouping for templates should probably be by jurisdiction to cater for the differences across jurisdiction; they do exist and they are significant enough to cause an effort like this problems), the trick is knowing what general classes of document exist and what basic information needs to be passed through the interface to your templates. If you want to internationalize the effort then bear in mind that the United States is somewhat different procedurally from other common law jurisdictions.
You should also consider the move towards electronic filing of documents, and have a look at what's being done about mandated filing formats in jurisdictions near you.
In most large firms what you're talking about is a Solved Problem. Their precedent systems (usually) have the added advantage of being integrated with the firm's client database so that all you have to say is "Create a claim for file x to file in court y" and you'll have a blank claim with all the basic details (names of parties, etc) filled in. In most cases they use Word templates rather than LaTeX and you'll be forced to work with that, but don't let that hold you back from creating alternatives for the profession at large to try.
Your point is taken, but tracking billable hours != accounting. In addition, lawyers usually (YMMV depending on jurisdiction) have their own set of rules to follow for trust accounting.
A legal billing system has to be accessible to everybody in the office who works on a particular matter and can work out how much the client needs to pay on the basis of the type of work and the position of the person doing it. What the submitter was asking for, as I see it, was a system where practitioners can simply enter their identity, the number of billable units allocated and a short narration for each item of work done. Tracking monies received and the outlays for each matter is a separate problem that's only related by the fact that professional fees are worked out on the basis of what's in the timesheets.
IWBALBNM (I Will Be A Lawyer By Next Monday), and from my own experience you should consider a custom app. Each firm generally has its own systems that might not quite fit the Way as envisaged by the vendor of your choice. Additionally, your requirements aren't very demanding: all you need is a system to track clients, matters, and time-sheet entries, and a way to link those together. This is the job that relational databases were built for.
Additionally, if you pick an RDBMS that integrates well with whatever office suite you choose then it's fairly easy to tie the firm's database in with its precedent system, allowing you to auto-generate letters and court documents with all the basic details (names and addresses, names of parties to proceedings, etc) already filled in.
Doing it right can be challenging, but I can tell you that working with a system that forces you to work according to its assumptions about what should be done is extremely frustrating.
Yes, but the matter/anti-matter fuel streams are themselves in a plasma state. AFAIK it's impossible to do magnetic containment on a gas like deuterium properly unless it's either very hot or very cold. And although Voyager's fuel injection columns were straight cylinders, the Enterprise's core definitely had a stack of tori feeding it. If I were to speculate, they seemed to use rings of circulating plasma in conjunction with a standing B-field to create a magnetic bottle that was shuffled down the column into the conversion chamber.
Didn't you read the blurb? The network is purposefully insecure to allow for communications under "difficult circumstances". I don't know what "difficult circumstances" are exactly, but if I had to guess I'd say that the wind and cold kept putting their firewalls out.
It seems to me that you are committing a fallacy in your critique by assuming that the unique views of a group of individuals can be reduced to a single, organic will directed in favour of a single candidate that can be measured with a reasonable amount of certainty and objectivity. I don't think that's the purpose of IRV or should be the objective of a sensible voting system. IRV seeks to establish a consensus view in the absence of a clear majority opinion.
I believe that if you re-evaluate your second and third examples from this perspective you'll see that the results make a lot more sense. The third-party voters are brought in to resolve the deadlock between the two majority groups and even the differences in opinion between the majority factions are taken into account. Your first example is somewhat artificial as preference relationships tend to be undirected, i.e. if Minor voters like Major1 then Major1 voters ought to like Minor on the grounds that they are similar (consider Democrats voting Republican ahead of the Greens). It is conceivable that this is not the case, however we now have the same problem: the views of the individual voters in the electorate are interacting in complex ways that probably aren't measurable by any reasonably simple system.
This is assuming the restriction on employment is in itself legal, and that itself is a point of contention in many juristictions.
Agreed, but that's a matter generally covered by statutory regimes governing employment and competition law, not the general law of contract. In the case of competition law, the clause is generally void or it isn't: whether consideration is given is irrelevant to achieving the policy objectives of the statutes. I don't know so much about employment law; my home jurisdiction seems content to leave restraint of trade clauses in employment contracts to the common law.
In the one major contract dispute that made it down this road, this -was- considered by the arbitrating party.
Granted, in most cases it would be considered, but you're confusing the underlying rule that "covenants restraining trade should be reasonable" with the application of that rule to specific circumstances. The existence or not of some benefit made conditional on the operation of the restraint clause is important, but it is not (as you originally claimed) determinative of whether the clause is unreasonable in all the circumstances of a particular case.
Termination of the contract is governed by the terms of the contract itself and by the law governing termination in situations were it makes no sense for the contract to remain on foot, i.e. termination for frustration, breach of a fundamental term, or repudiation. but as I said in my above post, the law does not force a strict one-to-one mapping between obligations. To do so would impose unnecessary rigidity and inflexibility on the forms of legal relationships that can be created through contracts.
These contracts are legal, I believe, if and only if there is consideration for the signee. This would mean you would have to recieve compensation, or something, in exchange for you not working.
The contract as a whole is only valid if it is a mutual promise for valuable consideration, but this does not mean there must be a quid pro quo for each individual term of the contract. The consideration for a contract of employment consists only of the benefits that accrue to the employee generally, not of specific benefits for each obligation the employee is required to fulfil.
The legislation you cited generally regulates the manner in which lawyers charge their fees generally, although there are provisions dealing for lawyers who act "without reasonable prospect of success" (which is very wrong, IMNSHO). Awards of costs in litigation are usually a matter within the discretion of the court, and are governed generally by common law and the rules of the court making the order.
And you shouldn't really use Austlii for legislation, it's usually not up to date. The offices of legislative counsel for each state's Parliament usually keep up-to-date, but unauthorized, electronic reprints, and you can check Scaleplus for Commonwealth legislation.
Certainly. Your analogy is specious. The reason is that an Act of Congress is not necessarily an atomic unit of law, but simply a single exercise of legislative authority.
To put an example, let's say a state legislature passes a "Public Morality Act" making it an offence to, inter alia:Now, although these offences are all brought in under the same act of the legislature, they are nonetheless logically separate and distinct from each other. So the constitutional court can rule on the validity of one without disturbing the others in any way. Hence, in the example, the prostitution offence would probably survive since it serves the legitimate state interests of public order and safety, even though the other offences would probably be struck out.
The overall point I'm trying to make (and to which the other poster alluded) is that an Act of Congress will establish or alter any number of propositions and principles of law having a complex network of dependency relationships. When rules or principles are related, such that striking out one will alter or render nonsensical the others, the whole house of cards will fall down. In other cases, a rule or principle independent of the others can be "severed" from the Act and killed on its own.
Since I haven't read the order, I don't know on what basis the judge in this case made her decision.
I can't speak to the constitutional aspects of the property argument, though it seems to be otherwise sound. But since the original article was published on Tuesday the 20th, and the article reporting the decision was published on the 22nd (referring to a hearing on "Tuesday evening"), I assume the order was only an interim order made without a detailed examination of the merits.
The problem is that the press tends to interpret its duty in accordance with its own financial interest (what will rate or sell newspapers) rather than in accordance with the relevance and importance of the story or information in the public affairs of the nation. The interest of the public is not the same as the public interest.
Now, the injunction that has been granted is just an interim or interlocutory order, which is a temporary order designed to preserve the status quo until the matter can be finally determined at trial. It may be that after careful determination of all the issues the court will find that the public interest obviates the confidential nature of the documents and the order will be lifted. On the other hand, Diebold's right to confidence and privacy of counsel may prevail. By making the order, the judge is simply saying that there is a serious matter to be tried and that Diebold is in jeopardy of irreparable harm should the newspaper be allowed to publish the undisclosed documents.
Your position is that the court should not be permitted to inquire about the matter at all. Since a legal right only exists if it is backed by the power to enforce it, you would, by ousting the jurisdiction of the court to look behind the circumstances and reasons for detection and publication of the information, completely destroy any right to confidentiality or privacy.
The position on inadvertent loss of privilege is different in Australia (where I come from). Although privilege can be deliberately waived, privilege may be preserved where privileged information is mistakenly released (usually in the form of mistaken discovery of privileged documents in civil proceedings). This must be distinguished from the case where documents fall into the hands of a third party, although equity may intercede according to the circumstances of the case. In all cases privilege must be considered separately to the equitable duty of confidence. I have heard it said that Australia and England are much stronger equity jurisdictions than the United States, so perhaps that explains why Anglo-Australian courts are happier granting injunctions in these cases.
Needless to say, this creates all sorts of fun ethical problems for solicitors (and sometimes barristers) who are tainted after having read material that shouldn't have been discovered.
See Calcraft v Guest [1898] 1 QB 759 and ITC Film Distributors v Video Exchange Limited [1982] Ch 431 for some of the prinicples of equity involved. See Hooker v Darling Harbour Authority (1987) 9 NSWR 538 and Kabwand Pty Ltd & Ors v National Australia Bank Ltd (1987) 16 FCR 85 for the basic principles on imputed waiver for inadvertently released information.
With regard to New York Times v US, I would not be so eager to hold out a 5-4 decision as conclusive authority for a given point, especially given the more relaxed attitude higher courts have towards stare decisis in modern times. And although the First Amendment supercedes state and Federal law, the Sixth Amendment guarantees the right to the assistance of counsel in a criminal trial. As I would consider privilege an important adjunct to that right, and given the equal status the Sixth Amendment enjoys with the First, is it certain that professional privilege doesn't also enjoy an elevated status, at least in criminal matters?
First, if the documents are given to the press, whether intentionally, accidentally or via a leak, they are no longer confidential.
Ah, so the fact that they're given to one person (or organization) means that they lose their confidential nature, despite the fact that none of the other six billion people on the planet know they exist. I see, it's all clear to me now. Your basic point is correct, and you will note the distinction the court made between documents already published and documents yet to be published.
this happens all the time in almost all high profile cases, many times intentionally.
And always with the client's prior knowledge and consent in the light of professional advice that this will help his or her case.
No. Rights are rights, and it doesn't matter whether they're infringed by the government or by private actors, the fact remains that they have been infringed. Legal professional privilege always applies, both to civil and criminal cases. It is (or should be) a substantive legal right, not just a rule of evidence.
The person that leaked the memos did something wrong. The newspaper that repoted them did nothing wrong.
So if someone breaks into your house (unlawfully), arranges to take photos of you in a compromising position (unlawfully), and a journalist is invited to view these photos on the burglar's own premises and equipment (lawfully) and copy them for publication (lawfully with the burglar's licence) then that's alright? See my other post for a refutation of this point.
As we slashdotters like to say from time to time: once the cat is out of the bag you can't put it back.
Which is why the newspaper has not been enjoined with respect to those documents already in the public domain, only those that are as yet unpublished.
Why are the newspapers having the corrective burden placed upon them?
They're not. They haven't been ordered to pay damages or compensation, they've simply been told what they cannot do with the documents in order to prevent further infringement of Diebold's right to confidentiality in the lawyer-client relationship.
The newspaper in this case DID receive the information lawfully.
It's true that they committed no breach of the law in receiving the information, but the law says they shouldn't have received that information, and sometimes the law imposes an obligation not to take advantage of things that shouldn't have happened. Receipt of confidential information is such a case.
Do a google for "bob novak" and "valerie plame" if you want some examples of a journalist receiving information that was provided to him illegally.
I'm familiar with the Plume scandal. The relevant difference is that nobody's recognized basic rights are being directly breached by the release of that information. It's true that the public interest in the effective operation of the intelligence services, Plume's career, and the well-being of any overseas contacts she may have worked with are at risk, but that must be balanced against the public interest that government be properly scrutinized.
In any event, there is no automatic right for the press to publish whatever they happen to find. You should read the decision in the Pentagon Papers case to get a feel for some of the considerations that have to be taken into account. I'm not an American, but IMNSHO what Novak did by publishing was wrong and quite possibly treasonous, especially since it appears he was acting as a tool of oppression rather than an independent journalist.
The fact that Jason Schultz (or you) want to talk about copyright does not change the facts of the case or the applicable law. The documents in issue are privileged and confidential, and the parent post to which I originally replied did not make any express point about the DMCA, but rather a vague, general point about freedom of speech.
The decision you referred to is a somewhat faulty analogy: recieving information you know to have been obtained by breach of confidence or you know is being given to you in breach of confidence is different from picking up a report on display in a room which essentially anyone can access. In any event, the statute forbidding the publication of sexual assault victims' identity under any circumstances was shot down because it was far too broad, and couldn't cover situations where the newspaper came by information lawfully (access to the report containing the victim's name was not restricted in any way). The court cannot simply rewrite an offending provision according to whatever feels right to the judicial gut, it can only uphold it or declare it void. There are occasions where reading down or severance of one part of a law is allowed, but (IIRC) in the case of reading down the non-offending interpretation must be acceptable in the light of the intention conveyed by the words of the statute, and in the case of severance (again IIRC) the part of the law to be struck out must be clearly separable from the part to be upheld.
That seems to be a nice example of the general position, "I trust myself implicitly so I don't need oversight, but you, sir, are another matter". Your point on public interest is taken, but public interest is a very slippery concept, especially when you're using it to try and define the scope of important basic rights. Does the public interest allow for legal professional privilege to be restricted in cases of treason or similarly serious crimes? Does anybody who has dealings with the government lose their right to legal professional privilege, or only those who are involved in important government functions. If the latter, precisely how important is "important", and should the privilege be lost or only restricted in some way?
It's a question that judges don't like dealing with precisely because of its subjectivity. Of course, there are limits to lawyer-client privilege and confidentiality, such as when a person obtains advice to deliberately facilitate an illegal activity. However the focus should ultimately be on government, which is ultimately the party responsible for making its own processes (electoral or otherwise) open and accountable. Transferring that burden onto others by eroding their basic rights, even if they are in our opinion Bad People, is somewhat dangerous.
magical nanoprobes that could do anything from defeat unstoppable aliens, cut 10,000 lightyears off our trip, and warm up Janeway's coffee after a hard day's work on an away team
Don't forget: they also brought Neelix back from the dead!
Except the case isn't just about freedom of speech, it's about the confidential nature of the lawyer-client relationship. To illustrate, let me pose a hypothetical.
You're the accused in a high-profile case on some new, egregious law, a la the DMCA or PATRIOT Act. You're not certain about whether you're guilty or not given the novelty of the provision under which you're charged, so you seek legal advice, making full and frank disclosure of what you've done so your lawyer can give you the best advice possible. Somewhere along the way a "concerned citizen" gets ahold of the memos generated in the course of obtaining this advice and passes it to the prosecution, or, better yet, the press, who throw it into the public domain so it loses its quality of confidentiality.
Now, who's rights should prevail here? Your right to skilled legal representation and the necessary adjunct right of lawyer-client confidentiality, or freedom of speech? Granted, Diebold is a corporation and nobody's liberty is at stake, but Diebold is a vessel for the economic interests of its shareholders, so property (another important right) is at stake and ought to be protected, no?