*tempted to simply write this off as disgruntled employee, because he ♥ his toyotas*

Is it just me, or is Toyota getting a ton of bad press lately?

@ducttape38: Makes up for the years and years they got nothing but positive press. Next week the tide turns on Apple.

@ducttape38: Yeh I noticed that too . They closed a plant in California and were the top car seller during the cash for clunkers push .

I know for years the Japanese imports were notorious for safety issues . But that was mostly because those cars were originally designed with a much smaller Oriental person in mind and designed without the road system we had here in the US .

I still find it hard to believe that as methodical that the Janpanese were in designing/building the engines they weren't as methodical runnig tests for engineering or insurance reasons on safety issues especially after doing major business here in the US for decades .

@u1itn0w2day: Cultural Sensitivity FTW.

Toyota's got a point on the attorney-client privilege issue. It may not defeat the lawsuit, but it is certainly a substantial hurdle and stumbling block and may get their most damning evidence barred. The attorney may well have been free to disclose this information to the courts while he was still representing them in order to prevent his complicity in future or ongoing crimes, but to disclose it and actually sue them after he has left their employ using evidence of past misdeeds... He could get disbarred for that. He should have disclosed this to the courts in a more timely manner.

It does sound like it could be simply a matter of a disgruntled employee.

No type of attorney-client privilege should be used as a legal issue when peoples lives were destroyed or future lives could be lost. It's time this society stops supporting illegal practices just because they are a company fanboy. If Toyota willfully went against a court order to surpress information then they lost the ability to hide behind the legal system they were cheating. It's time compaines are punished for their actions just as a common person with no money would be punished.

@bigd7387: Both the company and the common person are entitled to attorney-client privilege, though, so the playing field is level there.

I have to say it, but a lawyer named Biller is just classic.

@u1itn0w2day: The government data shows that Toyota was one of the big winners in Cash for Clunkers because of how the data was divided. Check the Edmunds.com data and you'll see a different winner emerge.

@bigd7387: So an attorney should be allowed to turn over/testify what he and his client said because the client committed a crime or tried to cover it up? That's a DANGEROUS precedent.

@Vandelay Import Export: An accountant named "Biller" is classic. A lawyer named Cheatum or something is more classic.

As an officer of the court, the lawyer theoretically isn't bound by privilege in cases where there is wrongdoing by his client.

It's probably honored more in the breach, but privilege won't help Toyota in this case.

@fantomesq:
I think he should be disbarred for it. Attorney-client privilege is sacred and is far too important to the general legal system to let people like this guy get away with violating it. As far as disclosing it to the courts, it's unlikely he was actually representing the company before the court in any of the cases; Toyota probably retained outside counsel for that. He should have just quit and kept his mouth shut regarding the privileged information.

In my opinion, breaking privilege is right up there with stealing money from clients and is essentially the worst thing you can do as an attorney. It may present difficult situations and may be gut-wrenching when you can't disclose something that you know if clearly wrong, but that's part of being an attorney. If he can't deal with that he should have chosen another profession.

Unfortunately Biller's actions fall into the category of "damned if you do, damned if you don't". Upon independently discovering these facts, the government could actually charge Biller with conspiracy and complicity if they believe he was in on the cover-up. Yet, because he blew the whistle, the bar association has the ability to yank his license to practice.

Certain professionals have a duty to disclose certain information to authorities despite professional privilege enjoyed by their clients. Doctors who suspect sexual abuse of children come to mind first, followed by attorneys who are informed by their clients of future lawbreaking, and by psychiatrists who believe their patients are about to either break laws or commit suicide. In fact, there are a number of professionals like this who must disclose some information upon knowledge or request of the government and are not legally able to look away.

In this case, the merits of his allegations will be tried in front of lady justice, and if Toyota is found to have impeded justice, Billers will have some ammunition if he's called to answer for his actions.

I think this is treading a fine legal line. I note the article mentions data from a "subsidiary", which might have been the intent of a court order/motion of discovery, but if the "word" of the orders didn't mention them, then they wouldn't be in breach, legally. In fact, his attempts to "collect and preserve" them might be a crime in and of itself. HE may be the one in for some criminal prosecution.

As for emails, depending on where the servers were located, a US court order might not be able to obtain them.

@mannyv:
So you're saying that a lawyer with a guilty client isn't bound by privilege? I can't imagine that's what you're trying to say here.

I suspect you're trying to say that a lawyer isn't bound by privilege when there is wrongdoing by the client with respect to proceedings before the court, such as witness tampering or evidence destruction. If that's what you're getting at, I think it's arguable. The lawyer certainly has the ability to withdraw from the case to prevent assisting in or furthering the wrongdoing, but disclosure isn't always an option and is never the first one. Rule 1.6 of the Model Rules of Professional Conduct governs situations in which a lawyer may disclose confidential client information; I'm not sure you could argue that discovery violations by a client fall into any of the permissive categories.

@Esquire99: As you know, there is a crime-fraud exception to attorney-client privilege.

I do not understand a society that lets known criminal behavior go unchecked because of a technicality. That to me is a misrepresentation of justice.

@Esquire99: It would depend on the rules of the state in question, not on the Model Rules.

@mythago:
That's true, but that's a forward-looking exception. The crime-fraud exception allows disclosure if the lawyer has information that client is going to perpetuate a crime or fraud in the future. In this case, it seems the lawyer is simply disclosing a wrong (or wrongs) committed by the client in the past, not that Toyota is going to commit a crime/fraud in the future. Thus the crime-fraud exception doesn't apply.

Issues of privilege and disgruntlement aside, having been involved in a lot of lawsuits against car companies and having colleagues who represent people hurt by defective cars - no, this is exactly the OPPOSITE of a far-fetched accusation. Their lawyers appear to be convinced that every time you comply with your obligation to respond to discovery requests, God kills a kitten.

When I was in law school, our trial-practice group had a presentation by a real!!! attorney who had just litigated a case against a Certain Car Company (let's call them CCC) involving a seat belt that gave way. CCC stalled and refused to provide load-test results....until the day before she was cross-examining their lead engineer. The report was badly copied and looked like it had been revised. So she sent her secretary to the USDOT to get the official, seal-laden copy that has to be filed with the government. Lo and behold, the official copy had all kinds of information about seat-belt failures that was not in the copy she was given!

She had a good couple of hours beating on the engineer on the stand before CCC settled.

@GitEmSteveDave_IndustrialStrengthLasagna: From the law offices of Dewey, Cheatum, and Howe?

@mythago:
That's 100% accurate, and I should have made that clear in my comment. Thanks for bring that up. I didn't look to see what state he was working in at the time or what state(s) he's admitted in, so I used the model rules to make the point.

@bigd7387: The reason that attorney client privilege is sacrosanct is that in order for the legal system to function properly, clients need to be able to trust that their communications will be used to represent them and not be used against them. There are limits to those protections but this situation does not come close to meeting them.

This attorney's motives smack as revenge against a former client rather than working in the public good. Even if he was trying to right a wrong and his intentions good, his actions may have made prosecuting this case substantially more difficult since he may of tainted the vast majority of the potential evidence to prove this case.

The legal system is held to high ethical standards on how it produces its cases. Rogue attorneys trying to settle a grudge by undermining the legal system's most basic trusts are not going to be attorneys for long. Hopefully they get better representation than they have given.

@mythago:
I think it's one thing to delay responding to discovery requests but an entirely different one to provide false responses. That's simply over the line.

@mythago: I don't think anyone said it is a far fetched accusation but there are right and wrong ways of proving it. Having their own attorney disclose confidential information does more harm than good here.

Interesting. If this guy sued for wrongful dismissal would he then be better able to present the evidence? Also, if the case proceeds, is there any potential financial gain for him?

He started working for Toyota and came to believe they were breaking the law. He reported his concerns to them (as I'm sure his signed employee paperwork required him to do), they didn't stop, but let him go. His holding on to evidence seems to be a sticky point, but I can understand why he'd want to do it. Is he really legally obligated to not out them since he was their attorney, even if he believed that they were going to continue to break the law?

@Shoelace:
While it can vary state-to-state, generally he could only disclose confidential information if the crime or fraud they were going to commit "is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services."

In the securities area, the SEC recognizes privilege and a lawyer's duty to maintain confidentiality. What they do suggest is a "noisy withdrawal" which will put the regulators on notice that something isn't kosher.

That said, I think Mr. Biller should be enjoined from violating his client's privilege (it's the client's privilege, not the lawyer's) or be disbarred. Whether or not he had a confidentiality clause in his golden parachute ($3.7 million?), his obligations as a member of the bar would prevent him from disclosing client information.

There are exceptions to the privilege but they largely revolve around disclosure of a crime to be committed or a fraud to be perpetrated, and not past acts. Even if the client is a lying SOB and intends to perjure himself in open court, the best a lawyer can do is to withdraw from representation.

@Esquire99: Thanks. If there are future lawsuits against Toyota that plaintiffs could lose because of Toyota's past (precedent) and future destruction/withholding of evidence of rollovers, do you think this would this count as 'substantial injury to the financial interests or property of another...'?

@ducttape38:
I personally witnessed the buy back of well over a hundred Toyota Tacomas at a small local dealership here this past summer due to faulty frames (premarurely rusting out), a couple so bad that they were broken in two! Now they are no longer buying them back but fixing them with new frames! Of the roughly 10 bays this small toyaota dealer has, 3 were occcupied this week with frame replacements. I believe that Toyota decided to scrap pre-'01s or '03s and fix the rest. How satisfying a customer experience do you think having your truck diemboweled and put on a new fram will be? I can only imagine the number of return service visits due to such a practice.

@Shoelace:
That's a sticky question. There are a few "issues" that need to be dealt with. First, look at reasonable certainty. For one, does the lawyer know they will continue to fail to disclose in the future? Further, does he know that the destroyed evidence will even be necessary in future cases? That aside, you have to deal with the question of reasonable certainty. That's pretty tough here, given that a case can turn on any number of things and the destroyed/withheld evidence could turn out to be nearly irrelevant. Finally, you have to decide whether a person's potential award in a lawsuit is truly a financial interest. Do they have an interest in the money just because they have a claim that is being litigated? It's different when your talking about a crime/fraud that would actually result in the other losing money they already have.

@Coles_Law: Have you ever heard of the check fraud scheme that was cracked by Dewey, Cheatum, and Howe?

[www.google.com]

@baristabrawl: Those technicalities ensure that you get a fair trial rather than witchhunts. Unfortunately the system isn't perfect, so there are miscarriages of justice, but far fewer than might otherwise occur without those annoying little procedural things like due process and privilege.

@Esquire99:
However, could their refusal to comply with a court order constitute an on-going criminal conspiracy? I agree he's conveniently late in disclosing it. But, is what I said a possibility?

@Nascar24Dude:
I'm not sure; I don't off-hand recall all of the elements of a criminal conspiracy. That said, just because they are going to commit a crime doesn't mean the attorney gets to disclose. It has to be a crime reasonably certain to cause substantial harm to financial or property interests or substantial physical harm or death. It's not terribly cut and dry. The essence is that the situations in which one may disclose are very, very narrow.

I'm skeptical about SUV rollover complaints. The Explorer was legit. Otherwise...the serious ones (like the 4Runner) are designed for being driven slowly over difficult terrain. They are not designed to work as well as other vehicles on roads in normal driving.

When you treat such an SUV as though it were a commuter sedan, it does not tend to do very well in comparison. (See Consumer Reports and the Samurai)

Unless the angle is that the manufacturer and dealer sold the vehicle to customers as though it were as safe as a Camry (which still leaves me wondering how the buyer could be that stupid), or there's an Explorer-tire-like defect, I don't buy it.

@TechnoDestructo:
I'm not sure that an SUV isn't as safe as a Camry, so long as it's driven properly. I suspect part of the problem with the whole SUV rollover claims is that soccer moms and the I-need-the-biggest-available-car types don't really understand the physics of driving a car with a high center of gravity and treat them just like their old Ford Taurus and take corners fast, make aggressive, high-speed moves on the highway and generally over-steer and over-correct.

Do the dealers have a duty to inform buyers of the issues unique to driving an SUV? I don't think so. Once you impose that duty, where does it stop? Does the buyer need to sign something saying they were told? Does there need to be a training class? What level of disclosure is sufficient? It's a slippery-slope that I just don't think it's appropriate to do down.

"Is he a brave whistleblower, or a deeply disgruntled ex-employee who left the company after a mental breakdown?"

Who says the two descriptions are mutually exclusive?

@H3ion:

most states make allowances for attorneys to break the attorney-client privilege to the detriment of their clients in some EXTREME cases.

@Crazytree:
He noted that.

"There are exceptions to the privilege but they largely revolve around disclosure of a crime to be committed or a fraud to be perpetrated, and not past acts"

@ducttape38:
In light of all the American-car bashing that goes on around these parts, it's nice to see a foreign car company take a hit.

I don't have a problem with foreign cars, but I get tired of people bashing those of us who buy American. Most consumers use their experience in the buying process. My experience has been better with American cars, so I won't buy a foreign car again.

@Esquire99: If the lawyer was participating in a fraud or crime at the time, and now is revealing his complicity, wouldn't that fall under the exception? It's impossible to tell, from this snippet, exactly what is going on - what his legal relationship with Toyota was and now is, what state he is in (as ethics rules vary from state to state) and so on.

@Esquire99: Are you really saying it is not "over the line" to intentionally refuse, over and over, to comply with discovery requests? Particularly if the intent is to force your opponent to incur costs?

Whaaaaa? Toyota being a big evil corporation? No, that's only GM. Toyota would never do anything like this, they only work on ways to save the environment and aid humanity. Toyota vehicles clean the air as they drive and pick up trash on the highways as they go.

Why would CBS News and Consumerist drop in Toyota in the headline when it clearly should be General Motors?

/snark

@Esquire99: I-need-the-biggest-available-car is part of the marketing plan for selling SUVs. It's a little disingenuous to pretend that your customers are idiots for doing exactly what you persuaded them they should do.

The privilege applying to a felony witnessed by an attorney is simply not allowed in any jurisdiction. If I kill somebody in the presence of my attorney, s/he will be compelled to testify. It's that simple, folks.

This guy witnessed active destruction of material documents/matter in defiance of a discovery order.

You don't get to commit a crime in front of an attorney and expect to invoke privilege. Case closed.

@fantomesq: How do you know whether this situation does or does not "come close to meeting them"? It depends entirely on the ethics rules in his state, what exactly it is he is revealing, what his relationship is to Toyota, what his relationship *was* at the time the alleged misconduct took place, and a bunch of other factors.

Obviously, IF the guy did violate attorney-client privilege, then his state's attorney disciplinary assassins should come down on him like the wrath of God.