In January before the pandemic exploded and stay-at-home orders were issued, the talk of Birmingham legal circles was how a Balch & Bingham attorney was deflated before the Honorable R. David Proctor, a federal judge in the Northern District of Alabama.
Balch & Bingham partner Sean W. Shirley (pictured above, left) was attempting to have another attorney Glenda Cochran (pictured above, right), a colorful and respected member of the bar, disqualified.
According to transcripts of the hearing, Balch’s partner had the audacity to call Cochran’s conduct of speaking to a witness for over 10 hours on the phone and the accumulation of 86 pages of handwritten notes, “crime fraud all the way.”
“Crime fraud” is the terminology used in the Drummond vs. Conrad & Scherer decision by the 11th Circuit Court of Appeals based coincidentally on a decision by Judge Proctor himself.
The decision outlines when attorney privileged communications can be discoverable during the commission of a crime. (Conrad & Scherer paid alleged bribes to witnesses in an effort to defame Drummond Company.)
Judge Proctor then holds Balch accountable :
Have you read the Eleventh Circuit case on crime fraud in Drummond?
Balch’s Shirley replies:
I have not read that. No.
Judge Proctor then goes on to teach Balch & Bingham about some of the “hoops” one must go through to meet “crime fraud” from the Drummond decision.
I’m just saying you might want to go read the Eleventh Circuit case law on this and make sure you understand, primarily and initially, whether you think your arguments pass muster under crime fraud.
Earlier this month, Judge Proctor ruled that all of Glenda Cochran’s handwritten notes, recordings, emails, and communications submitted in camera were indeed privileged.
Balch & Bingham’s bruised and battered reputation took another left hand hook to the mid-section.