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When Attorneys Fail to Grasp the Concept of Attorney/Client Privilege, There Can Be Repercussions, Especially When the Client Is J.K. Rowling.

Written by: Patricia I. James**

For those of you who do not know who J. K. Rowling is, which might consist of approximately three people in the entire world, she is the author of the hugely popular Harry Potter series and also the author of “The Casual Vacancy.”

When I read the latter (having read all of her books, sometimes twice), I really felt like I could hear her voice, that I could see that she had written this. Having KNOWN that she wrote it, that quite possibly impacted my belief.

It has now been revealed that she wrote a book called “The Cuckoo’s Calling” under the pseudonym of Robert Galbraith. It was published in April of this year and received very good reviews. “The Casual Vacancy” had received mixed reviews.

Following this revelation, the sales of the book went up 507,000% on Amazon.com. Certainly, as soon as I found out about it, I downloaded a sample to my Kindle, read it and immediately ordered a hard bound edition on Amazon. (For those of you who may be wondering, I own probably 2,000 paperback and hard back books and have not stopped buying them. It just depends on the book as to whether it will just be on my Kindle or on my bookshelf. But enough about me).

If the sample is any indication, and I think it is, this is a highly entertaining book which Ms. Rowling has stated will be a series. Adults can then wait breathlessly for the next book as did children (and a lot of adults) for the next Harry Potter book.

It seems that Ms. Rowling wanted to keep this a secret so that she would have a better chance of knowing if people really liked the book as opposed to knowing that she wrote it and then comparing and contrasting it to her prior books, i.e., she wanted to let the book stand on its own and see how it merited. Specifically, she said, “I hoped to keep this secret a little longer, because being Robert Galbraith has been such a liberating experience! It has been wonderful to publish without hype or expectation and pure pleasure to get feedback from publishers and readers under a different name.”

She was able to keep the secret for about three months, stating that “only a tiny number of people know my pseudonym and it has not been pleasant to wonder for days how a woman whom I had never heard of prior to Sunday night could have found out something that many of my oldest friends did not know. To say that I am disappointed is an understatement. I had assumed that I could expect total confidentiality from Russells, a reputable professional firm, and I feel very angry that my trust turned out to be misplaced.”

What happened was that Chris Gossage, a partner at Russells Solicitors, told his wife’s best friend, Judith Callegari, that Galbraith was Rowling. Ms. Callegari then tweeted the information and you know the rest of the story.

Based on a very cursory review of the law, it appears that the law concerning attorney/client privilege works very much the same in the United Kingdom as it does in the United States, i.e., communications between an attorney and client are protected from disclosure and an attorney cannot reveal the information without the permission of the client. The privilege is that of the client and not that of the lawyer.

What I found laughable was that Russells Solicitors stated that, while Gossage was culpable, “the disclosure was made in confidence to someone he trusted implicitly.” What part of attorney/client privilege do these attorneys not understand? It doesn’t matter whether he trusted her or not. The information was not his to disclose. Mr. Gossage violated the attorney/client privilege. I don’t think it could be any clearer.

What are Ms. Rowling’s options? Well, she could sue the firm and the partner if the law states that a client should be awarded damages simply because the attorney/client privilege was violated. However, I do not think that would be worth the trouble (based on zero research on this issue) since she would just incur more attorneys’ fees in pursuing litigation. Even if she could recoup her attorneys fees from the firm and partner, what would the violation be worth?

What people sometimes forget is that, if there are no damages, there is no case. So what are Ms. Rowling’s real damages? Again, on Amazon.com, sales soared more than 507,000% after Rowling acknowledged being the author so she should make about a gazillion dollars. Damage? I think not.

Personally, I think the best route would be to hurt them where it always hurts, the wallet. She simply needs to retain other counsel to represent her. Therefore, Russells Solicitors will have lost a client worth over a billion dollars (not counting the gazillion). As for Mr. Gossage, I think he might consider finding other work, maybe one where he says into a headset, “Would you like fries with that?”

**No portion of this Post is intended to constitute legal advice. The views expressed are solely those of the author.