Kin Draws Small Firm Lawyer Into High-Profile Supreme Court Privilege Case

J. Craig Smith is an associate at a Bridgeport, Conn., personal injury firm. But this fall, his work took him to Washington, D.C. As luminaries of the legal world walked by, he sat at the counsel table in the U.S. Supreme Court.

And he had a cousin from Georgia to thank for it all.

"When my father called me from Georgia [in 2006] about Norman being fired, I didn't know if I could do anything for him," said Smith. "But my Dad said, 'Remember who you are, and where you're from -- we stick by our own.' I knew I had to do right by Norman ... . When I got that phone call, it was the beginning of a truly wild ride."

It all started in a carpet mill. Norman Carpenter, a modest, self-described "mountain man" rooted to the hill country of northwest Georgia, supervised a shift of about 100 carpet factory workers. One day in 2006, he wrote an e-mail to his human resources department mentioning that one of his workers said she was undocumented.

In subsequent e-mails to Mohawk Industries' HR department, Carpenter said he had used an interpreter to check with the rest of his immigrant crew, and that 90 percent of them were also undocumented.

That e-mail exchange halted abruptly, and Carpenter was directed to the company's in-house legal department. He quickly found himself atop a litigation issue as explosive as a powder keg.

Unknown to him, his employer had been embroiled for more than two years in a class action charging the company with federal Racketeer Influenced and Corrupt Organizations Act violations. The allegations were that Mohawk was engaged in an illegal conspiracy to use undocumented workers to drive down labor costs.

At the offices of Mohawk's law department, Carpenter was ordered to confer with the company's lead RICO defense lawyer. Behind closed doors, Carpenter alleges, he was pressured to retract his statements about undocumented workers. He refused to, and was fired.

So Carpenter turned to a lawyer he trusted. That would be his first cousin, J. Craig Smith, who grew up nearby in Georgia and, at the time, was a fourth-year associate of Bridgeport's Koskoff, Koskoff & Bieder. Smith, in turn contacted a two-man Atlanta employment law firm. The trio of lawyers then proceeded with a federal suit against Mohawk for wrongful termination and witness tampering in early 2007.

Mohawk, in its defense, contended that it was Carpenter who was the lawbreaker, and that he had, without company knowledge, hired illegal workers.

Despite Mohawk's hostility, Carpenter was reluctant to testify against his former employer in the RICO case. But in Carpenter's own case, he sought discovery material from Mohawk of anything justifying his firing. That would include Carpenter's talks with the RICO defense lawyer. Mohawk strenuously opposed disclosing that information, claiming attorney-client privilege.

A federal trial judge disagreed, ruling that Mohawk should disclose the material leading to Carpenter's firing. The judge found that Mohawk had already waived attorney-client privilege on this topic during the RICO litigation.

Mohawk appealed to the 11th U.S. Circuit Court of Appeals, which decided that it lacked jurisdiction to provide an interlocutory ruling on the privilege question. The 11th Circuit said Mohawk would have to wait until the end of Carpenter's wrongful discharge case, and then file its appeal.

Mohawk's lawyers felt this was one issue it had to fight. If a trial court erroneously makes a ruling that attorney-client privilege does not apply, they argued, the "cat is out of the bag" and the privileged information will affect the case. Even if an appellate court reverses the decision, they contended, serious harm from disclosure of privileged information has already been done.


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