Mohawk: Limited Interlocutory Review of Federal Court Orders to Disclose Potentially Privileged Attorney-Client Information

08/09/2010

Reprinted by permission of State Bar of Texas Appellate Section's Appellate Advocate:

The United States Supreme Court recognizes the attorney-client privilege as “one of the oldest recognized privileges,” meant to encourage attorneys to “provide candid advice and effective representation” and to further “broader public interests in the observance of law and administration of justice.” Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 606 (2009) (internal quotations omitted). In spite of the privilege’s pedigree, however, the proper method for immediate appeal of a federal court order requiring disclosure of information potentially protected by that privilege had not been as wellsettled. The Supreme Court recently decided that review is not available under the Cohen collateral order doctrine, and, unlike Texas state courts, mandamus review of such disclosure orders has been traditionally unavailable. This article explores the contrast between state and federal law, the options available in the face of a federal court order to disclose potentially privileged attorney-client information, and open questions as to whether Mohawk applies in other privilege contexts.

To view the article, click on the linked PDF below.

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