Trial Attorney Blog

When a Privileged Conversation Isn’t: The Crime-Fraud Exception to Attorney-Client Privilege

Published on: July 6, 2021 | By Finch McCranie, LLP

a binder of files chained with a padlock When the government investigates or prosecutes alleged corporate crime, a key question commonly emerges: Will the accused client waive attorney-client privilege and disclose relevant communications to the government?

This issue often arises because lawyers are routinely involved in corporate actions and decisions later subject to government scrutiny. “The extensiveness and complexity of the laws governing” corporate affairs “have made legal advice a crucial element of [not only] major business decisions,” but also of “more mundane kinds of corporate activity.” Douglas W. Hawes & Thomas J. Sherrard, Reliance on Advice of Counsel as a Defense in Corporate and Securities Cases, 62 Va. L. Rev. 1, 5 (1976). As the Supreme Court emphasized in Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), relying on attorneys is especially important “[i]n light of the vast and complicated array of regulatory legislation confronting the modern corporation.”

Ordinarily, the client—and only the client—has the authority to decide whether to waive attorney-client privilege on communications with counsel. Where an accused-client is cooperating with a government investigation or asserting an advice of counsel defense in response to formal charges, the waiver analysis is generally straightforward: the accused-client waives privilege and discloses relevant communications to the government. The resulting disclosure often reveals critical information to the government because of the substantial involvement of lawyers in much corporate conduct and decision-making.

“Extra Icing on a Cake Already Frosted”: The Supreme Court’s Continuing Concern with Overcriminalization

Published on: June 7, 2021 | By Finch McCranie, LLP

You know the Supreme Court of the United States feels strongly about an issue when, in the Court’s parlance, it adds “extra icing on a cake already frosted.”

That is, in effect, what the Court did in Van Buren v. United States (No.19-783), an opinion issued last Thursday in which the Court reversed the Eleventh Circuit Court of Appeals in a prosecution arising under the Computer Fraud and Abuse Act (CFAA). After considering “the text, context, and structure” of the CFAA, the Court resolved the issue in dispute—i.e., the cake was “frosted.” But the Court then added “extra icing” and emphasized—again—its profound concerns with federal prosecutors using broad federal criminal laws to target ordinary, seemingly innocent conduct.[1]

Van Buren concerned a “Georgia police sergeant [Van Buren] using his patrol-car computer to access a law enforcement database to retrieve information about a particular license plate number in exchange for money.” While he “used his own, valid credentials to perform the search, his conduct violated a department policy against obtaining database information for non-law-enforcement purposes.” The issue was whether Van Buren had “exceed[ed] authorized access” in violation of the CFAA by accessing the database for an improper purpose.

Punitive Damages in Atlanta, Georgia Wrongful Death Cases

Published on: May 13, 2021 | By Finch McCranie, LLP

As mentioned in Part I, punitive damages are not available as part of the wrongful death claim. They are, however, available in connection with the estate’s claims for the decedent’s predeath injuries and pain and suffering. Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 701 (1985).

Like with the wrongful death claim itself, punitive damages were not allowed under common law.

They are statutory in nature, and consequently, they are strictly construed.

What damages are available in an Atlanta, GA wrongful death case?

Published on: May 5, 2021 | By Finch McCranie, LLP

Punitive Damages Lawyer This is Part I of a discussion concerning what damages are available in Georgia wrongful death cases. Part II will be published next week.

Wrongful death claims in Georgia are typically divided into two separate claims: (1) the wrongful death per se as measured by the “full value of the life of the decedent” without deducting for any of the necessary or personal expenses of the decedent had he or she lived; and (2) the estate claims, or the claims that would have accrued to the decedent had they lived and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages.

The “full value of the life of the decedent” is measured from the decedent’s perspective. This is different from many other states which focus on the impact the decedent’s death has on the surviving family members/party plaintiffs. The “full value of the life” concept has two distinct components, one is economic and the other is non-economic. The economic component consists of the “items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value.” The non-economic portion comprises those “intangible items whose value cannot be precisely quantified, such as a parent’s “society, advice, example and counsel . . . .” Consol. Freightways Corp. of Delaware v. Futrell, 201 Ga. App. 233, 233 (1991).

Predictions For Future PPP Fraud Prosecution By DOJ

Published on: January 29, 2021 | By Finch McCranie, LLP

PPP Fraud Prosecution [Law360 published the below article by Finch McCranie partner, David Bouchard, on January 25, 2021. The article concerns PPP fraud and enforcement. Our white collar criminal defense team is deeply experienced in helping individuals and businesses navigate government investigations, enforcement actions, and prosecutions. If you are contacted by a law enforcement or regulatory authority regarding a PPP loan or other business transaction, do not hesitate to contact our capable team.]

By last August, just four months after the first Paycheck Protection Program loans were disbursed, federal prosecutors had filed 41 criminal complaints charging nearly 60 people with PPP fraud in cases involving alleged losses totaling approximately $62 million.[1]

Without skipping a beat, Hannibal Ware, inspector general of the Small Business Administration, cautioned that such prosecutions amounted to “the smallest, tiniest piece of the tip of the iceberg.”[2]

What is the “trial penalty” in federal criminal cases and does it mean I shouldn’t take my case to trial?

Published on: November 24, 2020 | By Finch McCranie, LLP

Nobody accused of a federal crime should be penalized for exercising their Sixth Amendment right to trial. And yet, because of the trial penalty, that happens all too often.[1]

The trial penalty refers to “the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial.”[2] At least in part because of the trial penalty, federal criminal trials are on a steep decline. Thirty years ago, 20% of federal criminal cases went to trial.[3] Today, fewer than 3% of federal criminal cases result in a trial, and more than 97% of criminal cases are resolved by plea.[4] As the National Association for Criminal Defense Lawyers (“NACDL”) has accurately observed: “[t]he Sixth Amendment right to trial [is] on the verge of extinction.”[5]

The trial penalty can be traced back to the sentencing reform push of the 1980s, which led to the creation of mandatory minimum sentencing provisions and the sentencing guidelines, and in turn, more powerful prosecutors and less powerful judges with more limited discretion. Charge and fact bargaining, excessive guidelines ranges, departure provisions conditioned on pleading guilty, and statutory mandatory minimums, are all key reasons for the emergence of the trial penalty. For example, rather than reserving mandatory minimum sentencing provisions for the most culpable defendants, prosecutors have at times used them “to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.”[6]

Trucking Accidents and Commercial Vehicle Accidents in Georgia

Published on: October 14, 2020 | By Finch McCranie, LLP

Georgia trucking accidents and commercial vehicle accidents are significantly different than typical motor vehicle collisions that involve two individuals driving privately in vehicles and are not working on behalf of their employer at the time of the wreck. The primary reason for this is that tractor-trailers and other commercial vehicles are governed by the Federal Motor Carrier Safety Regulations, which have also been adopted by the State of Georgia. A “commercial vehicle” is defined as any vehicle used on the highway or interstate transporting people or property with a gross weight lading of 10,001 pounds or more. This means that if the vehicle, trailer, and load equals more than 10,001 pounds, the vehicle is a “commercial vehicle.” And subject to the Federal Motor Carrier Safety Regulation (“FMCSR”).

The FMCSR is a comprehensive framework of policies and procedures governing the operation and maintenance of tractor-trailers and other commercial vehicles. Every company that operates commercial vehicles is subject to these regulations and the State of Georgia and all over the Country. A company can be held liable for any trucking accident or commercial vehicle accident that resulted from a violation of the FMCSR. Every driver of a commercial vehicle must perform a Pre-Trip inspection which involves inspecting the service brakes, parking brake, steering mechanism, lighting devices and reflectors, tires, horn, windshield wipers, rear vision mirrors, and coupling devices. The driver must document this Pre-Trip inspection and the driver’s employer must maintain these Pre-Trip inspection forms and keep them on file.

For drivers operating commercial vehicles in excess of 26,001 pounds, employers are required to conduct a comprehensive background check of the driver prior to beginning their employment. A driver applying for a job with a trucking company must complete an Application disclosing any moving violations or accidents for the 3-year period prior to the date of application and identifying each employer for whom the driver has worked for the past ten (10) years. In turn, within thirty (30) days of hiring a driver, the trucking company must send written inquiries to the driver’s prior employers for the 3-year period prior to the date of their employment and also must obtain a Moving Violations Report (“MVR”) from any state that has issued a license to the driver for the preceding 3-year period. The driver is also required to undergo an examination by a physician and obtain a Medical Examiner’s Certificate of Fitness. A Pre-Employment Drug and Alcohol Screening is also mandatory.

The Right to Confrontation in an Era of Videoconferences

Published on: October 12, 2020 | By Finch McCranie, LLP

The-Right-to-Confrontation-in-an-Era-of-Videoconferences Videoconferencing has skyrocketed in popularity because of the pandemic. Just check Zoom’s stock. Seemingly overnight, what used to be an irregular method of business communication has become commonplace.

Courts have embraced the craze, frequently holding hearings and other meetings by video. But there are limits to what a court can permissibly accomplish by video. While some observers have suggested videoconferencing is a potential solution to the problem of requiring live, in-person testimony during a pandemic spread by airborne particles, the Supreme Court of Michigan held in a recent criminal appeal that “two-way, interactive video testimony violated the defendant’s Confrontation Clause rights.”[1]

U.S. Supreme Court Precedent on the Confrontation Clause

Georgia Medical Malpractice Cases in the Time of COVID-19

Published on: October 8, 2020 | By Finch McCranie, LLP

Prior the COVID-19 pandemic, in order to successfully bring a medical malpractice claim in Georgia, a plaintiff was required to offer expert medical testimony to the effect that the defendant physician or healthcare provider failed to exercise that degree of care and skill which would ordinarily have been employed by the medical profession generally under the circumstances. See Boling v. Foster, 254 Ga. App. 374 (2002). The legal duty owed by medical professionals was to exercise “a reasonable degree of care and skill.” See O.C.G.A. § 51-1-27. This is the standard that applied in the vast majority of medical malpractice cases. A narrow exception existed for the provision of emergency medical care in a hospital emergency department or obstetrical department, where it is necessary to prove by “clear and convincing evidence” that the physician or healthcare provider’s actions showed “gross negligence.” See O.C.G.A. § 51-1-29.5(c).

This threshold for proving liability in Georgia medical malpractice cases changed with Governor Kemp’s Executive Order entered April 14, 2020 concerning the Covid-19 crisis. Executive Order 04.14.20.01, limits liability for any harm done by the employees, staff, and contractors of healthcare institutions and medical facilities during the “Public Health State of Emergency” as to negligence, but not gross negligence, regardless of whether such service is related to the Public Health State of Emergency. “Gross negligence” is the absence of even slight diligence, and slight diligence is defined as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” Gliemmo v. Cousineau, 287 Ga. 7 (2010). The Executive Order applies to all clinics, hospitals, nursing & assisted living facilities, as well as ambulatory surgical centers.

The Executive Order further provides that “The employees, staff, and contractors of healthcare institutions and medical facilities shall be considered auxiliary emergency management workers pursuant to Code Section 38-3-35.” O.C.G.A. § 38-3-35(b) provides that auxiliary emergency management workers are immune from liability for harm, including death, sustained by persons as a result of “emergency management activity”, unless such emergency activity causing the harm was due to willful misconduct, gross negligence, or bad faith. O.C.G.A. § 38-3-3(2) defines “emergency management” broadly, as “the preparation for the carrying out of all emergency functions … to prevent, minimize, and repair injury and damage resulting from emergencies … These functions include, without limitation … emergency medical services … together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions.” This means that “auxiliary emergency management workers” are immune from liability even if they acted negligently in providing medical care to a patient in Georgia. Instead, in order to recover a plaintiff must prove that the medical care provided constituted gross negligence.

DOJ’s Focus on PPP Fraud and Some Investigative Considerations in Evaluating a Client’s Exposure to Prosecution

Published on: September 10, 2020 | By Finch McCranie, LLP

In the early days of the Coronavirus pandemic, Congress passed relief legislation authorizing unprecedented federal aid to states, businesses, and individuals. In short order, a torrent of federal spending flowed. While those days may seem long gone as initial relief dollars have dried up and Congress is now debating additional relief programs, the Department of Justice (“DOJ”) remains focused on investigating and prosecuting fraud schemes arising from relief programs rolled out at the beginning of the pandemic.^[1]

One of the relief programs receiving special attention from DOJ is the Paycheck Protection Program (PPP), administered by the Small Business Administration (SBA). Through the PPP, participating banks lent money to qualifying businesses, which loans the SBA guaranteed. Subject to certain conditions, the SBA agreed to forgive the loans. Some of the key loan conditions included, for example: the requested loan was to be used to pay costs eligible for forgiveness (e.g., payroll, mortgage interest, rent and utility costs); payroll was to be capped at $100,000 per employee, annualized; the borrower was not to reduce salaries or hourly wages by more than 25 percent for any employee during the relevant period.^[2] To obtain the loan, the borrower had to sign and certify the PPP loan forgiveness application.

DOJ’s initial investigations of PPP fraud schemes have appeared to focus on the eligibility of borrowers (i.e., whether they had a real business with real employees, whether the size of the payroll matched representations in the loan application, etc.) and the use of the proceeds (i.e., whether the proceeds were spent on permissible items). Thus far, DOJ’s prosecutions for PPP fraud have involved allegations of egregious misconduct. As DOJ’s enforcement efforts continue, it is likely that DOJ will start bringing prosecutions concerning conduct that may be closer to the line and that may fall in gray areas.