The prosecution of Elizabeth Holmes, founder of the infamous healthcare and life sciences company, Theranos, Inc., has sparked media attention around the country. With just a few months before trial is slated to begin, Holmes recently lost her pretrial battle over whether the attorney-client privilege precludes the introduction of certain emails with counsel. While the emails at issue remain sealed from public view, related filings and hearings indicate Holmes and lawyers at Boies Schiller Flexner LLP (“BSF”) attempted to prevent the Wall Street Journal from exposing the startup’s impending collapse.
When it overturned a federal court’s order suppressing a litigant’s right to publicly gripe about a pending suit late last month, the Ninth Circuit took the opportunity to remind those of us in the legal profession that we are held to a different, higher standard when it comes to public comment on litigation. In an early footnote in the Court’s opinion in In re Dan Farr Productions, the Ninth Circuit distinguished the instant case from its prior decision in Levine v. U.S. Dist. Court, noting that counsel “are officers of the court subject to fiduciary and ethical obligations” which “do not apply to non-attorney participants.” Slip Op. at fn. 3.