‘Hotel California’ Case Spotlights Attorney-Client Privilege Risk

Don Henley, famously of the Eagles rock band, co-wrote “Hotel California” with Glenn Frey. The legendary lyrics—which include phrases such as “a dark desert highway” and “you can check out any time you like, but you can never leave”—were written on a lined yellow notepad.

Henley concluded that 100 pages of his private papers were later stolen and sold, filing a complaint with the Manhattan District Attorney’s Office. The district attorney then brought charges against three alleged conspirators in 2022. The case was dismissed last week.

Henley’s experience is a perfect case study into the risks of making criminal complaints.

In the future, prosecutors may be more inclined to insist complainants be more forthcoming with attorney-client materials when they ask prosecutors to file charges. This may be particularly true in business crime cases that involve a wide range of digital communications between would-be complainants and their attorneys who were involved in underlying events.

And there are serious risks for a client seeking to file a complaint, as any sophisticated lawyer will warn them. First, a complainant will lose control of the case, which is particularly risky if they also want to sue civilly. The prosecutor will often demand that the complainant abide.

Second, the complainant may be vulnerable as a witness; any personal criminal conduct will invariably be exposed. Third, the case may demand that the complainant’s privacy interests be set aside.

Henley learned this the hard way; he had to waive his self-incrimination privilege by testifying. Any criminal conduct would have been exposed at trial. And perhaps not surprising given the 1970s rock and roll culture, but he was forced to admit to personal drug use.

Complainants typically don’t need to waive attorney-client privilege. If a client had shared information with their lawyer before or after making the complaint, prosecutors wouldn’t ordinarily ask the complainant to waive that privilege and share those protected communications.

Here, however, to help the district attorney prove its case at trial, the prosecutor called several witnesses, including three attorneys who had represented Henley. They had been involved transactionally relating to Henley’s intellectual property, and the district attorney called them as witnesses in support of Henley’s complaint.

This is distinct from the situation where the Henley lawyers simply were advising him in connection with making his complaint to the district attorney’s office. There, the lawyers almost certainly wouldn’t have been called as witnesses or asked Henley to waive his attorney-client privilege.

The district attorney strongly encouraged Henley to waive his attorney-privilege, even though that would ordinarily allow the criminal defendants to better cross-examine Henley—a key prosecution witness—and the lawyers. Henley nonetheless declined.

After hearing arguments from the defense lawyers, and faced with Henley’s lawyers continuing to invoke the privilege, the judge said that if the privilege wasn’t waived, he’d assume the testimony wasn’t the full truth.

Given the judge’s admonition, Henley and his team relented. Henley waived the attorney-client privilege and was forced to give the prosecution and defense over 6,000 pages of privileged communications the prosecutors had never seen before.

These documents seriously undermined Henley’s story and, accordingly, the prosecution’s case theory. They were damaging to the point that the prosecutors moved to dismiss the ongoing criminal case outright.

This result essentially required a complainant’s privilege waiver for his complaint to remain viable—something exceedingly rare. Here, the judge made clear his belief that the Henley team had “manipulated” the district attorney’s office by holding back key facts.

When lawyers advise potential cooperators, they scrupulously review materials to determine if they contain attorney-client communications. This is especially true when those communications are between the client and other lawyers he employed that might undermine the client’s story and be subject to compelled disclosure.

As for how Henley’s lawyers may have viewed the dismissal, Henley and the Eagles said it best: “There’s gonna be a heartache tonight, I know.” Complainants and their lawyers surely don’t want that.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Joel Cohen is senior counsel at Petrillo, Klein & Boxer, a former federal prosecutor, and adjunct professor at both Fordham and Cardozo law schools.

Emma Spiro is partner at Petrillo, Klein & Boxer and a former federal prosecutor who represents individuals and entities in criminal prosecutions, investigations, and civil litigation.

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