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3 Things James Comey's Congressional Testimony Teaches Lawyers


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6/9/2017
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Yesterday, James Comey, former FBI director gave sworn testimony to the Senate Intelligence Committee. 

His testimony focused on why he was fired as well as interactions he had with the Commander in Chief, President Donald Trump. Those interactions hit on Trump's desire to get rid of the ongoing FBI investigation of Michael Flynn, his former National Security Adviser.

Regardless of who you believe and regardless of your political viewpoint, I want to address three takeaways attorneys can learn from this testimony.

#1 DO NOT LEAK TO THE MEDIA PRIVATE INFO ABOUT YOUR BOSS

There are pundits in the news who are debating whether it was 'legal' for Comey to leak to the news media his private notes about interactions and conversations with the President.

If Comey were still employed by the FBI as its' director, I imagine releasing his 'private' notes, made in the course of FBI business and while employed by the FBI would be a violation of some federal law.

Comey INTENTIONALLY leaked his private notes to the news media then tried to justify WHY he did so. He argued that since he was no longer employed at the FBI and was now a 'private citizen' he could do as he pleased with his notes that he created and produced WHILE EMPLOYED by the FBI.

Sorry, but I just don't buy that argument.

You can't take work product that you created while employed by the Federal Government and then say that because you're now a free agent and no longer working for the FBI that you get to disseminate any and all notes and memos you wrote in the hopes that a special prosecutor will be appointed to investigate Trump.

The takeaway for every attorney who is fired from his job is that you should not disseminate any information or knowledge you obtained while working for your law firm or for a particular client. It is likely priviledge material. Also, your employment contract, if you have one, likely has a provision in there protecting the company from disclosing to the public certain proprietary information and confidential information.

Imagine you had prepared an analysis of a legal issue for a client. It was a damaging assessment of their liability in a pending case. You wrote it. You analyzed the cases. You were the partner assigned to the case. 

You then get fired by the client and your law firm.

You decide to take that memo and leak it to the press in the hopes that your former client and former firm experience pay back for firing you. You justify releasing that memo claiming your former client was a liar and hope the U.S. Attorney investigates.

Sorry, but what you've just done may get your license to practice law revoked.

You violated the attorney client privilege. You did not have permission from your client or your law firm to release that confidential memo.

Hmm...sounds just like what Comey did. Yes, I know, there's technically no attorney-client privilege between the FBI director and the President, but the mechanics are the same. Again, I'm not arguing whether Comey's release is a violation of a law, but rather his rationale for releasing his private memo made while employed as the FBI director.

#2 



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Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer

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