When Trial News (membership required) recently sought the opinion of experienced legal counsel to explain a ruling by the Fifth Circuit on the attorney-client privilege, the publication turned to Paul Lawrence, a Waters Kraus & Paul partner in our Washington D.C. area office. Lawrence is a long-time qui tam lawyer representing whistleblowers in False Claims Act lawsuits against government contractors that defraud the United States and its taxpayers.
Lawrence Explains Fifth Circuit Decision Concerning Mistakenly Disclosed Memo Written By Exxon Mobil In-House Lawyer
The Fifth Circuit case arose when, during litigation, Exxon Mobil inadvertently released an in-house legal memorandum written in 1988 and advising Exxon Mobil employees to provide only limited information to a vendor selling equipment to contain naturally occurring radioactive matter (NORM) in the company’s oil fields. Exxon Mobil had retained an industrial hygienist to investigate whether a vendor’s device was capable of handling the radioactive dust accumulation. The vendor asked to see copies of the industrial hygienist’s tests and Exxon Mobil’s employees were instructed on the matter by the company’s in-house lawyer. Rosemary Stein, the attorney, advised that of the four tables of data contained in the report, only the table that demonstrated the lowest levels of radiation should be provided to the vendor.
The lawyer’s memo was inadvertently disclosed in 2008 litigation involving oilfield workers who had suffered injuries from NORM exposure. Though the memo was returned to Exxon Mobil, it cropped up again in other litigation, including a case by another worker who was injured by the radioactive dust.
Exxon Mobil sought to strike the memo from the record, but the plaintiff in the case persuaded the federal district court that the Stein memo was not protected by the attorney-client privilege because it was chiefly a business document, not legal advice. On appeal, however, the Fifth Circuit agreed with Exxon Mobil.
Noting that without the attorney-client privilege, “open and honest communications with our clients would be almost impossible,” Waters Kraus & Paul partner, Paul Lawrence, described the legal question as a “close and difficult issue.” Lawrence cautioned generally that the attorney-client privilege should not be used to protect in-house corporate communications that are made for business purposes as opposed to the purpose of seeking legal advice. And as for the Exxon Mobil litigation in particular, Lawrence explained that “there appears to be no question that the industrial hygienist’s report is subject to discovery and should be discovered and used in evidence as proof that Exxon knowingly exposed employees of [the vendor] to unacceptable risks of exposure to radioactive materials.”
Whistleblower Lawsuits Redress Waste and Abuse
Government investigators do not have the time or the resources to identify each abuse of the system. But insiders often have first-hand information about fraudulent claims against the government right from the start. The qui tam attorneys with Waters Kraus & Paul, like Paul Lawrence in the Washington D.C. area office, are committed to safeguarding the rights of tipsters willing to collaborate with the government. Contact us by email or call us at 800.226.9880 to learn how we can work together to notify the government about False Claims Act violations.