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Privilege Withstands Client's Threats to Judge

Here is a scenario that sounds like a law school exam question.

It was after midnight when the client began to leave a series of six messages on the lawyer's answering machine. In the first, the client said that he knew the home address of the Juvenile Court judge hearing his care and protection case and that she had two children. In the fourth message, the client's wife could be heard saying she and the client were going to "raise some hell." In the fifth, the client said, "some people need to be exterminated with prejudice." Over the next week, the lawyer saw the client become increasingly angry. The lawyer asked to withdraw from the case and then told the judge of the client's threats against her.

After investigating, prosecutors initiated grand jury proceedings against the former client and subpoenaed the lawyer to testify. The lawyer moved to quash, citing attorney-client privilege. The trial court judge denied the motion, reasoning that the client's threatening messages were not privileged because they had nothing to do with obtaining legal services. The lawyer appealed. How should the appeals court rule?

That was exactly the case decided this week by the Supreme Judicial Court in Massachusetts. Its conclusion was that the messages were privileged communications and that the lawyer could not be compelled to testify. The court reasoned that clients must have "breathing room to express frustration and dissatisfaction with the legal system and its participants."

The expression of such sentiments is a not uncommon incident of the attorney-client relationship, particularly in an adversarial context, and may serve as a springboard for further discussion regarding a client's legal options. If a lawyer suspects that the client intends to act on an expressed intent to commit a crime, the lawyer may attempt to dissuade the client from such action, and failing that, may make a limited disclosure to protect the likely targets. ... Requiring the privilege to yield for purposes of a criminal prosecution would not only hamper attorney-client discourse, but also would discourage lawyers from exercising their discretion to make such disclosures, as occurred here.

To lift the privilege here, the opinion continued, would be to leave lawyers and clients without a bright-line rule. "Warning clients that communications deemed irrelevant to the matter for which they have retained counsel will not be protected may not only discourage clients from disclosing germane information, but also may disincline clients to share their intentions to engage in criminal behavior," the SJC said. There is only one set of circumstances in which a client's communications regarding criminal behavior would waive the privilege, the SJC concluded. That is when the client's communication to the lawyer "sought assistance in or furtherance of future criminal conduct."

The decision, which was issued on Monday, is In the Matter of a Grand Jury Investigation. Had it been on an exam, how would you have scored?

Posted by Robert J. Ambrogi on March 25, 2009 at 01:57 PM | Permalink | Comments (1)


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