Confidentiality & Privileges

Dougherty v. Pepper Hamilton LLP, 133 A. 3d 792 (Pa. Super. Ct. 2016)

Shogan, J.

Appellant, John J. Dougherty, appeals from the order granting summary judgment in favor of Pepper Hamilton LLP and its attorneys Amy B. Ginensky, Michael E. Baughman, Peter M. Smith, and Raphael Cunniff, in this civil action alleging breach of fiduciary duty and breach of contract. For the reasons that follow, we reverse and remand for further proceedings.

We summarize the protracted history of this case as follows. On October 30, 2003, Appellant retained Pepper Hamilton to represent him in relation to a federal matter involving a grand jury subpoena he received. Although Appellant was not the target of the grand jury investigation, an FBI Affidavit was filed to secure a search of Appellant’s residence. Appellant has alleged that he provided Pepper Hamilton unfettered access to documents during the firm’s representation of Appellant. Also, counsel from Pepper Hamilton was present during the execution of the search warrant at Appellant’s home in November of 2006.

Initially, the FBI Affidavit securing the search warrant was under seal, but, somehow, the FBI Affidavit inadvertently became attached to a document presented in an unrelated criminal matter involving an unrelated person named “Donald Dougherty, Jr.” According to Appellant, on January 30, 2008, the federal government filed a response to Donald Dougherty Jr.’s motion to suppress evidence, which was entered as Document No. 27 on the federal criminal docket for the prosecution of Donald Dougherty, Jr. This filing was allegedly made under “restricted status.”2 Document No. 27 referenced, as Exhibit “A,” a copy of an affidavit by an FBI agent in support of the issuance of a search warrant for Donald Dougherty, Jr.’s premises. However, the affidavit that was attached to Document No. 27 as Exhibit “A” was actually the FBI Affidavit in support of the search of Appellant’s premises.

At least some of the documents in Donald Dougherty Jr.’s case were filed under seal and, thus, not accessible to the public. Subsequently, however, in April of 2008, certain documents in Donald Dougherty Jr.’s case were unsealed by Judge Robreno of the United States District Court for the Eastern District of Pennsylvania. More specifically, Judge Robreno’s April 11, 2008 order authorized the eastern district Clerk of Court to lift the seal on Documents 31, 32, 48 and 38. Appellant alleges that Document No. 27 was also, albeit mistakenly, removed from “restrictive status” around this time.

When Appellant was running for a vacant seat in the Pennsylvania Senate in April of 2008, the Philadelphia Inquirer published several articles about Appellant. The articles implied that Appellant had engaged in criminal conduct in the past and was likely to do so again if elected to the Pennsylvania Senate. In March of 2009, Appellant initiated a defamation suit against the Inquirer in state court. In 2011, Pepper Hamilton assumed representation of the defense for the Inquirer in the defamation suit filed by Appellant. In 2012, Pepper Hamilton informed the trial court that the defense of the defamation action would rely on information relating to the federal investigation in which Pepper Hamilton had previously represented Appellant. In 2013, Appellant moved to have Pepper Hamilton removed as defense counsel in his defamation action against the Inquirer. The trial court denied the motion to disqualify Pepper Hamilton. On appeal this Court reversed the decision of the trial court and remanded the matter for the entry of an order barring Pepper Hamilton and its attorneys from representing the Inquirer.

On December 10, 2012, while Pepper Hamilton and its attorneys were still representing the Inquirer, the firm filed a motion for summary judgment in the defamation suit and included in the attached exhibits a copy of the FBI Affidavit. On December 12, 2012, the Inquirer then published a front-page article, which included detailed references to the FBI Affidavit.

On February 11, 2013, Appellant initiated the instant action by filing a complaint against Appellees alleging breach of fiduciary duty and breach of contract. Appellant alleged that, in representing the Inquirer in the defamation suit, Pepper Hamilton acted against the interests of Appellant, its former client. The trial court has summarized the subsequent procedural history of this case as follows:

Appellees filed Preliminary Objections on April 3, 2013. These Preliminary Objections were overruled by this Court by Order dated June 18, 2013. An Answer was filed by Appellees on July 8, 2013. On May 27, 2014, after some discovery was conducted and a Revised Case Management Order entered, Appellees filed a Motion for Summary Judgment. An Answer in response to the Motion for Summary Judgment was filed by Appellant on June 27, 2014. A Reply in Support of the Motion for Summary Judgment was filed by Appellees on July 2, 2014. A Supplemental Memorandum in Support of the Motion for Summary Judgment was filed by Appellees on July 25, 2014, and a Supplemental Memorandum in Opposition was filed by Appellant on July 29, 2014. By Order dated July 29, 2014, and entered on the docket on July 30, 2014, Summary Judgment was granted.

This timely appeal followed.

Appellant presents the following issues for our review:

A. Whether the Trial Court erred in granting Appellees’ motion for summary judgment on the mistaken basis that, because Pepper’s breach of fiduciary duty was also a violation of the Pennsylvania Rules of Professional Conduct, Appellant cannot assert a claim against Pepper as a matter of law. B. Whether the Trial Court erred in holding that Appellees were entitled to summary judgment because, although they used information against Appellant that is substantially related to their former representation of him, that information is publicly available and thus cannot form the basis of a disloyalty claim. C. Whether the Trial Court prematurely granted Appellees motion for summary judgment where the parties had exchanged limited written discovery and taken no depositions.

Each of Appellant’s issues challenges the propriety of the trial court’s determination granting summary judgment.

A legal malpractice claim based on breach of contract, “involves (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages.” With respect to a legal malpractice claim based on breach of contract, this Court has stated the following:

The attorney’s liability must be assessed under the terms of the contract. Thus, if the attorney agrees to provide her best efforts and fails to do so, an action in assumpsit will accrue. An attorney who agrees for a fee to represent a client is by implication agreeing to provide that client with professional services consistent with those expected of the profession at large.

With respect to a breach of fiduciary duty claim, “a confidential relationship and the resulting fiduciary duty may attach wherever one occupies toward another such a position of advisor or counsellor as reasonably to inspire confidence that he will act in good faith for the other’s interest.” The leading case in Pennsylvania discussing breach of a fiduciary duty by an attorney with regard to a conflict of interest is Maritrans GP Inc. v. Pepper, Hamilton & Scheetz. In Maritrans, our Supreme Court upheld the trial court’s issuance of a preliminary injunction preventing Pepper Hamilton from representing its former clients’ competitors. The Court found that a cause of action for breach of a fiduciary duty against a law firm was actionable where the firm acquired confidential information during the course of its representation. In discussing actionability for breach of a fiduciary duty, our Supreme Court reiterated the following long-standing principles:

Activity is actionable if it constitutes breach of a duty imposed by statute or by common law. Our common law imposes on attorneys the status of fiduciaries vis a vis their clients; that is, attorneys are bound, at law, to perform their fiduciary duties properly. Failure to so perform gives rise to a cause of action. It is “actionable.” At common law, an attorney owes a fiduciary duty to his client; such duty demands undivided loyalty and prohibits the attorney from engaging in conflicts of interest, and breach of such duty is actionable.

The Maritrans Court highlighted that Pepper Hamilton “was furnished with substantial confidential commercial information” and “came to know the complete inner-workings of the company along with Maritrans’ longterm objectives, and competitive strategies.” As explained by the Court, adherence to a fiduciary duty “ensures that clients will feel secure that everything they discuss with counsel will be kept in confidence” and that Pepper Hamilton “had a duty to administer properly their responsibilities to respect the confidences of Maritrans.” It further explained that the rationale behind this policy is to prevent an attorney from taking “undue advantage of the confidential communications of such client.”

In reaching its determination, the Court in Maritrans emphasized the confidential information that Pepper Hamilton garnered during the course of its representations.

Pennsylvania Rule of Professional Conduct 1.9 further addresses attorney duties to former clients and provides, in relevant part, as follows:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

The explanatory comment to Rule 1.9(c) offers the following pertinent insight:

8 Paragraph (c) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

In addition, section 59 of the Restatement (Third) of the Law Governing Lawyers defines the term “Confidential Client Information” as “Confidential client information consists of information relating to representation of a client, other than information that is generally known.” Comment b to the above definition explains that “the definition includes information that becomes known by others, so long as the information does not become generally known.” Furthermore, comment d states the following:

d. Generally known information. Confidential client information does not include information that is generally known. Such information may be employed by a lawyer who possesses it in permissibly representing other clients and in other contexts where there is a specific justification for doing so. Information might be generally known at the time it is conveyed to the lawyer or might become generally known thereafter. At the same time, the fact that information has become known to some others does not deprive it of protection if it has not become generally known in the relevant sector of the public. Whether information is generally known depends on all circumstances relevant in obtaining the information. Information contained in books or records in public libraries, public-record depositaries such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access. Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known. A lawyer may not justify adverse use or disclosure of client information simply because the information has become known to third persons, if it is not otherwise generally known. Moreover, if a current client specifically requests that information of any kind not be used or disclosed in ways otherwise permissible, the lawyer must either honor that request or withdraw from the representation.

We further observe that there is no Pennsylvania case law directly on point. However, as the Supreme Court of Ohio aptly stated in Akron Bar Association v. Holder, “An attorney is not free to disclose embarrassing or harmful features of a client’s life just because they are documented in public records or the attorney learned of them in some other way.” Likewise, in Lawyer Disciplinary Board v. McGraw, the Supreme Court of West Virginia observed that “the ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it.”

Here, the trial court concluded that because the FBI Affidavit was inadvertently appended to a document in an unrelated criminal matter, the information contained therein was public. Specifically, the trial court stated that “the fact that the FBI Affidavit in question was publicly available for many years precludes a determination that the receipt of the improperly filed FBI Affidavit through a breach by Appellees of the attorney-client relationship and duty of fidelity is actionable.”

Our review of the record, in the light most favorable to Appellant as the non-moving party, reflects that the trial court erred in granting summary judgment in this case. Indeed, this case presents genuine issues of fact. The record reveals that the FBI Affidavit in question became part of another criminal matter through inadvertence. Even accepting that the FBI Affidavit was publicly available through PACER prior to December 10, 2012, we are left to ponder whether the FBI Affidavit was actually “generally known.” All that is acknowledged at this point in the proceedings is that the FBI Affidavit was inadvertently appended to a document in a case that did not involve Appellant as a party. Therefore, it appears that such document was not “indexed” under Appellant’s name and that a person interested in the FBI Affidavit “could obtain it only by means of special knowledge.” Furthermore, it is unknown exactly how and when the FBI Affidavit came into the possession of the Inquirer and eventually became the subject of an article in the Inquirer during Pepper Hamilton’s representation of the Inquirer. Whether Pepper Hamilton committed a breach of its duties to Appellant depends on the answers to these questions. Thus, these questions are sufficient to establish genuine issues of material fact regarding Pepper Hamilton’s conduct. Contrary to the trial court’s conclusion, in the event that the FBI Affidavit was not generally known information, it appears that Pepper Hamilton breached its duty to Appellant as a former client and such breach was actionable. Accordingly, we reverse the order granting summary judgment.

Matter of Tennant, 392 P. 3d 143 (Mont. 2017)

Justice Beth Baker delivered the Opinion and Order of the Court.

These consolidated proceedings include two formal disciplinary complaints filed against Montana attorney David G. Tennant. The complaints, which arise from Tennant’s debt collection practices against clients and former clients, will be referenced in this Opinion and Order as the Ray complaint and the Harshman complaint.

Background

Tennant represented Richard and Debbie Harshman in an action for eviction of tenants from, and possession of, real property in Hungry Horse, Montana. The Harshmans obtained a default judgment against their tenants for damages to the property, including attorney fees of $3,063.54. When he was unable to collect the attorney fees through execution on the tenants and the Harshmans did not pay their bill to Tennant’s firm, Tennant filed an attorney’s lien on the property. He later filed a complaint against the Harshmans alleging breach of contract, account stated, and foreclosure of the attorney’s lien, in which action he was granted a default judgment of $8,148.68. Tennant assigned the judgment to a collection agency, which obtained a writ of execution on the Harshmans’ property. A sheriff’s sale was held, at which the collection agency was the successful bidder. The Harshmans later redeemed their property.

Both Ray and the Harshmans filed complaints against Tennant with the Office of Disciplinary Counsel, and ODC filed formal disciplinary complaints in both matters. On August 31, 2016, Tennant filed conditional admissions and an affidavit of consent to discipline in these consolidated proceedings, pursuant to Rule 26, Montana Rules for Lawyer Disciplinary Enforcement. ODC objected to Tennant’s conditional admissions. On October 20, 2016, the Commission on Practice held a hearing on the complaints and to consider Tennant’s conditional admissions. Tennant was present with counsel and testified on his own behalf.

On January 5, 2017, the Commission submitted to this Court its Findings of Fact, Conclusions of Law, and Recommendation for Discipline. The Commission rejected Tennant’s conditional admissions. The Commission concluded that ODC failed to carry its burden of proving by clear and convincing evidence any MRPC violations alleged in the Harshman complaint.

The Commission recommends that, as a result of his violations of the Montana Rules of Professional Conduct, Tennant be disciplined by public censure by this Court. The Commission recommends that, in the future, Tennant be required to provide to clients and former clients copies of any attorney’s liens he or his firm files against them. In addition, the Commission recommends that, for a period of three years, Tennant be required to provide to ODC copies of any attorney’s liens filed by him or his firm, copies of all complaints filed by him or his firm and served against former clients for unpaid fees, and copies of judgments or assignments of judgments obtained by him or his firm against former clients.

ODC has filed written objections to the Commission’s findings, conclusions, and recommendation, and Tennant has filed a response.

Discussion

ODC argues that the Commission erred in concluding that it failed to prove violation of Rule 1.9, MRPC, in relation to the Harshmans. Rule 1.9(c) provides:

A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known.

ODC alleged Tennant violated this Rule when he bid on the Harshmans’ Hungry Horse property at the sheriff’s sale, because Tennant’s knowledge of the property derived from his representation of the Harshmans. The Commission determined that because Tennant could have found out that the Harshmans owned property in Hungry Horse via public record and then foreclosed his fee lien and bid at the sheriff’s sale, no violation of Rule 1.9 occurred.

As ODC emphasizes, Rule 1.9’s language requires that, in order for the attorney to be free from the prohibition against using representation-related information to the disadvantage of a former client, the information at issue must be “generally known.”

Whether information is generally known depends on all circumstances relevant in obtaining the information. Information contained in books or records in public libraries, public-record depositories such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access. Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. A lawyer may not justify adverse use or disclosure of client information simply because the information has become known to third persons, if it is not otherwise generally known.

Some courts have applied a strict definition of “generally known” in the context of a Rule 1.9 analysis. That the information at issue is generally available does not suffice; the information must be within the basic understanding and knowledge of the public. “The client’s privilege in confidential information disclosed to his attorney is not nullified by the fact that the circumstances to be disclosed are part of a public record, or that there are other available sources for such information, or by the fact that the lawyer received the same information from other sources.”

In this case, although it would have been possible for Tennant to discover the existence of the Harshmans’ property through searches of public records, he undisputedly learned of the property as part of his representation of the Harshmans. Tennant used that information to the Harshmans’ disadvantage. We will not interpret the “generally known” provision of Rule 1.9(c) to allow Tennant to take advantage of his former clients by retroactively relying on public records of their information for self-dealing. The Commission erred in concluding that Tennant did not violate Rule 1.9, MRPC.

ODC further claims that, absent the Harshmans’ redemption of their property, Tennant would have exceeded his fee claim and lien by receiving a windfall from the sheriff’s sale of upwards of $80,000—his former clients’ equity in their property. ODC submits that this is a clear violation of Rule 1.9(c), MRPC. However, the Harshmans did redeem their property, and ODC’s assumptions do not satisfy its burden of proof.

Sanctions

Finally, ODC argues that the Commission’s recommended sanctions are inadequate given Tennant’s unethical conduct and will not deter the same type of conduct by other Montana attorneys. ODC had recommended that Tennant be suspended from the practice of law for at least seven months and that he be required to retake and pass the Multistate Professional Responsibility Exam.

We have concluded that ODC established one ethical violation in addition to those recognized by the Commission. However, that violation ultimately did not harm Tennant’s clients—the Harshmans redeemed their property. Further, the additional violation does not undermine the Commission’s overall conclusions on the evidence presented, and on this record we are not inclined to deviate from the discipline recommended by the Commission.

Jones v. U.S., 828 A. 2d 169 (D.C. Ct. App. 2003)

Terry, Associate Judge

After a jury trial, appellant was convicted of first-degree burglary, first-degree sexual abuse, first-degree felony murder, and second-degree murder. On appeal he contends that the trial court erred when it ruled that the attorney-client privilege did not require the exclusion of testimony about a conversation that appellant had with his girlfriend (at the time), who was an attorney employed by the federal government. We affirm on the merits, and remand for the sole purpose of vacating a redundant conviction.

I

On Saturday, March 23, 1996, at about 10:00 a.m., Metropolitan Police officers found Darcie Silver dead in her apartment after they received a call from her concerned co-workers reporting that she had failed to show up for work. The medical examiner determined that the cause of death was asphyxia by strangulation; other injuries indicated that she might also have been smothered. In addition, there were burns around her genital area; pieces of burned newspaper were found in the vicinity of her crotch. A vaginal swab revealed the presence of male deoxyribonucleic acid (DNA). In addition, investigators found semen stains on Ms. Silver’s nightgown and on a denim jacket recovered from her apartment. The DNA evidence was later matched to appellant through testing by the FBI.

A police investigation revealed that on Friday evening, March 22, Ms. Silver had dinner with a co-worker from her job at Bread & Circus, a supermarket in the Georgetown area of the city. She returned to her apartment at approximately 10:00 p.m. and spoke to her father on the telephone from 10:47 p.m. on Friday until 12:03 a.m. on Saturday.

Two neighbors in Ms. Silver’s apartment building heard a knocking at the front door of the building at about 2:30 a.m. on Saturday. One of the neighbors looked out a window and saw a “stocky” man with a fair to medium complexion at the door. This description was similar to that of appellant, who is a weightlifter and bodybuilder. Both neighbors heard the man respond to the building intercom using the name “Darcie.” They then heard him say that he had locked himself out of his apartment and needed to borrow a telephone. The intercom made a buzzing noise, which unlocked the front door, and the man walked upstairs to the area of Ms. Silver’s apartment. About fifteen minutes later, one neighbor heard a “crash” coming from Silver’s apartment, and the other heard a loud “thump.”

II

Appellant’s primary argument on appeal is that the court erred when it ruled that the attorney-client privilege did not attach to a conversation that he had with his girlfriend at the time, Tina Ducharme, who was also a lawyer.

After Darcie Silver was murdered, the police interviewed several employees, including appellant, at the Bread & Circus store where Ms. Silver worked. The police requested hair and blood samples from appellant, but he declined to give them. He told the police that his girlfriend was a lawyer and that he “wanted to talk to her first and he even invited them to come to his house to talk to them if they wanted to, but only in her company.” Later appellant called his girl friend, Tina Ducharme, a lawyer who worked for the federal government. At the time, she was away on business in San Diego. Appellant left a message at her hotel there, and she returned his call some time thereafter.

During their telephone conversation, appellant told Ms. Ducharme about the police interview at Bread & Circus. Defense counsel moved to exclude any testimony from Ms. Ducharme about that conversation. At a pre-trial hearing on the motion, Ms. Ducharme testified that appellant “told me that the police had been by his work and had questioned him and several other people who used to work with Darcie and had asked for blood samples from several individuals.” Ms. Ducharme’s response to appellant’s concern was that “obviously he didn’t have to provide the police with a sample if they didn’t have a warrant.” She also asked him, however, “why he wouldn’t, since it would clear the air. Obviously he didn’t have anything to do with it or didn’t have anything to be concerned about. I didn’t understand why he wouldn’t just go ahead and do it.” Appellant also told her that “he had been in Darcie’s apartment before, and he questioned whether or not some fingerprints of his would be remaining in the apartment,” particularly on some drinking glasses. Ms. Ducharme replied with the “common sense advice” that “probably Darcie had washed her glasses in the intervening amount of time.” Finally, appellant asked “what if he had gone to the bathroom and left some sperm in there?” Ms. Ducharme laughed and commented that “unless he was masturbating in her bathroom, I really didn’t think that would be a concern.” Ms. Ducharme testified that appellant never said anything about her representing him in a criminal matter, nor did she intend to advise appellant as a lawyer, adding, “I wasn’t qualified to advise anyone on criminal matters.” Appellant, in fact, had never asked her to perform any legal work on his behalf. Besides, she said, she was barred by a regulation from representing any private individual “either criminally or civilly” because she was a government lawyer. Further, she believed the conversation was a typical call between boyfriend and girlfriend: “when either of us had a problem, we would call the other person to ask their advice or tell them about it.”

Appellant’s account of the conversation was different. He stated that he telephoned Ms. Ducharme because he “wanted to know what kind of position I would be putting myself in by giving hair and blood samples.” Appellant said that he called her “because she’s an attorney” and that he “was seeking legal advice.” He testified, “I never thought she could be subpoenaed or anything because she was an attorney.” On the basis of his prior experience with other attorneys, appellant believed their conversation would remain confidential.

At the close of the hearing, the court ruled that the conversation was not protected by the attorney-client privilege. Accepting Ms. Ducharme’s version of the conversation as credible, the court found appellant’s testimony incredible because he “kept switching around on the witness stand as if he was waiting on which way to go.” In addition, the court ruled that the only thing Ms. Ducharme “said as a lawyer” was that appellant did not have to give the police hair and blood samples, which he had already elected not to do. Otherwise, said the court, the types of questions appellant asked Ms. Ducharme were “what if” questions that were more scientific than legal:

They were questions about—they’re scientific questions. And she wasn’t a criminal lawyer to begin with. What if I used a glass, would the fingerprints still be there? Not a legal question. What if I went to the bathroom, would I have semen there? That’s not a legal question. None of these were legal questions. The only legal question in this thing he already knew the answer to.

As a result, the court refused to allow appellant to invoke the attorney-client privilege, and Ms. Ducharme’s testimony about the telephone conversation was later introduced into evidence at trial.

In the case at bar, the court heard testimony about the nature and substance of the conversation between appellant and his one-time girl friend, Ms. Ducharme. It made a credibility determination about the contents of the conversation and a factual finding that Ms. Ducharme was not acting as an attorney, but as a friend. On this record we see no reason to depart from our usual standard of review for factual findings by a trial court; i.e., we must uphold that court’s determination of the facts unless it is “plainly wrong or without evidence to support it.” In particular, a trial court’s “findings of fact relevant to the essential elements of a claim of attorney-client privilege will not be overturned unless clearly erroneous.” This standard of review places a heavy burden on appellant. Because appellant has not shown that the trial court’s factual findings were clearly erroneous or, in the words of our statute, “plainly wrong,” we uphold the court’s rejection of his claim of privilege.

The attorney-client privilege is the oldest of the established privileges for confidential communications. Its main purpose is to encourage full and frank communication between attorneys and their clients. Nevertheless, courts construe the attorney-client privilege narrowly to protect only those purposes which it serves. Thus the privilege applies only in the following circumstances:

(1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

The burden of proving that the attorney-client privilege shields a particular communication from disclosure rests with the party asserting the privilege. This means that the party asserting the privilege must clearly show that the communication was made “in a professional legal capacity.” “In general, American decisions agree that the privilege applies if one of the significant purposes of a client in communicating with a lawyer is that of obtaining legal assistance.”

Whether a purpose is significantly that of obtaining legal assistance or is for a nonlegal purpose depends upon the circumstances, including the extent to which the person performs legal and nonlegal work, the nature of the communication in question, and whether or not the person had previously provided legal assistance relating to the same matter.

In the case of someone seeking advice from a friend who is also a lawyer, the lawyer-friend must be giving advice as a lawyer and not as a friend in order for the privilege to attach. The nature of the relationship is a factual question for the trial court to decide.

Finally, the relationship between attorney and client hinges on the client’s intention to seek legal advice and his belief that he is consulting an attorney. In this case the government argues that the conversation in question was not privileged because Ms. Ducharme was not a criminal lawyer; because, as a government employee, she was barred by a regulation from representing appellant—or any other individual—in a private capacity; and because she believed that she was speaking to appellant as his girlfriend and not as a lawyer.(n.4 in opinion) During the evidentiary hearing, defense counsel attempted to impeach Ms. Ducharme with her grand jury testimony. Before the grand jury, Ms. Ducharme initially testified that she gave appellant advice “as a lawyer,” but then stated a few moments later that appellant had called her “as his girlfriend.” The trial court presumably considered this discrepancy but nevertheless found Ms. Ducharme credible.

These arguments fall short, however, because the intent of the person seeking advice is assessed from that person’s viewpoint, not that of the attorney. The issue ultimately is what appellant believed when he was seeking advice and whether his belief about the confidentiality of the conversation was reasonable. Thus Ms. Ducharme’s understanding of the conversation and of why appellant had called her is relevant only to whether appellant reasonably believed he was consulting her as an attorney, with the protections that such a relationship provides.

Guided by these principles, we agree with the trial court that appellant failed to make the clear showing necessary to establish that his conversation with Ms. Ducharme was within the protection of the attorney-client privilege. We note that the trial court found appellant’s testimony incredible, in part, because he appeared to have tailored his testimony to fit the legal standard for the privilege, which counsel and the court had discussed in front of him during the hearing. The court said to defense counsel:

It’s the court’s observation that appellant is very bright. And I was especially fond of his answer to counsel’s last question about whether he heard me. Then counsel and I had this legal discussion, at which time your client then answered the question, he didn’t understand the concept. It’s as if we helped him answer the question, the two of us.

In addition, the court ruled that the questions appellant asked Ms. Ducharme were not “legal” questions. The court noted that appellant knew his rights when he refused to provide blood and hair samples to the police. According to Ms. Ducharme, whose testimony the court expressly credited, appellant did not inquire about his right not to give samples without a warrant, but instead asked “scientific” questions about whether or not his fingerprints might remain on a glass or whether his semen and hair might be discovered in the bathroom.

While such concerns about “bad facts” might fall within the privilege if they were expressed in a communication within a clearly established attorney-client relationship, we conclude, like the trial court, that appellant failed to establish that, as a matter of fact, such a relationship existed between him and Ms. Ducharme. We see no reason to upset the court’s conclusion, which rested largely on its determination that Ms. Ducharme was credible and that appellant was not. We find no error in that determination.

People v. Belge, 83 Misc.2d 186 (N.Y. County Court 1975)

Ormand N. Gale, J.

In the summer of 1973 Robert F. Garrow, Jr., stood charged in Hamilton County with the crime of murder. The defendant was assigned two attorneys, Frank H. Armani and Francis R. Belge. A defense of insanity had been interposed by counsel for Mr. Garrow. During the course of the discussions between Garrow and his two counsel, three other murders were admitted by Garrow, one being in Onondaga County. On or about September of 1973 Mr. Belge conducted his own investigation based upon what his client had told him and with the assistance of a friend the location of the body of Alicia Hauck was found in Oakwood Cemetery in Syracuse. Mr. Belge personally inspected the body and was satisfied, presumably, that this was the Alicia Hauck that his client had told him that he murdered.

This discovery was not disclosed to the authorities, but became public during the trial of Mr. Garrow in June of 1974, when to affirmatively establish the defense of insanity, these three other murders were brought before the jury by the defense in the Hamilton County trial. Public indignation reached the fever pitch, statements were made by the District Attorney of Onondaga County relative to the situation and he caused the Grand Jury of Onondaga County, then sitting, to conduct a thorough investigation. As a result of this investigation Frank Armani was no-billed by the Grand Jury but Indictment No. 75-55 was returned as against Francis R. Belge, Esq., accusing him of having violated subdivision 1 of section 4200 of the Public Health Law, which, in essence, requires that a decent burial be accorded the dead, and section 4143 of the Public Health Law, which, in essence, requires anyone knowing of the death of a person without medical attendance, to report the same to the proper authorities. Defense counsel moves for a dismissal of the indictment on the grounds that a confidential, privileged communication existed between him and Mr. Garrow, which should excuse the attorney from making full disclosure to the authorities.

The National Association of Criminal Defense Lawyers, as amicus curiae, succintly state the issue in the following language: If this indictment stands, “The attorney-client privilege will be effectively destroyed. No defendant will be able to freely discuss the facts of his case with his attorney. No attorney will be able to listen to those facts without being faced with the Hobson’s choice of violating the law or violating his professional code of Ethics.”

Initially in England the practice of law was not recognized as a profession, and certainly some people are skeptics today. However, the practice of learned and capable men appearing before the court on behalf of a friend or an acquaintance became more and more demanding. Consequently, the King granted a privilege to certain of these men to engage in such practice. There had to be rules governing their duties. These came to be known as “Canons”. The King has, in this country, been substituted by a democracy, but the “Canons” are with us today, having been honed and refined over the years to meet the changes of time. Most are constantly being studied and revamped by the American Bar Association and by the bar associations of the various States. While they are, for the most part, general by definition, they can be brought to bear in a particular situation. Among those is the following, cited in United States v Funk: “Confidential communications between an attorney and his client are privileged from disclosure * * * as a rule of necessity in the administration of justice.”

In the most recent issue of the New York State Bar Journal (June, 1975) there is an article by Jack B. Weinstein, entitled “Educating Ethical Lawyers”. In a subcaption to this article is the following language which is pertinent: “The most difficult ethical dilemmas result from the frequent conflicts between the obligation to one’s client and those to the legal system and to society. It is in this area that legal education has its greatest responsibility, and can have its greatest effects.” In the course of his article Mr. Weinstein states that there are three major types of pressure facing a practicing lawyer. He uses the following language to describe these: “First, there are those that originate in the attorney’s search for his own wellbeing. Second, pressures arise from the attorney’s obligation to his client. Third, the lawyer has certain obligations to the courts, the legal system, and society in general.”

Our system of criminal justice is an adversary system and the interests of the State are not absolute, or even paramount. “The dignity of the individual is respected to the point that even when the citizen is known by the state to have committed a heinous offense, the individual is nevertheless accorded such rights as counsel, trial by jury, due process, and the privilege against self incrimination.”

A trial is in part a search for truth, but it is only partly a search for truth. The mantle of innocence is flung over the defendant to such an extent that he is safeguarded by rules of evidence which frequently keep out absolute truth, much to the chagrin of juries. Nevertheless, this has been a part of our system since our laws were taken from the laws of England and over these many years has been found to best protect a balance between the rights of the individual and the rights of society.

The concept of the right to counsel has again been with us for a long time, but since the decision of Gideon v Wainwright, it has been extended more and more so that at the present time a defendant is entitled to have counsel at a parole hearing or a probation violation hearing.

The effectiveness of counsel is only as great as the confidentiality of its client-attorney relationship. If the lawyer cannot get all the facts about the case, he can only give his client half of a defense. This, of necessity, involves the client telling his attorney everything remotely connected with the crime.

Apparently, in the instant case, after analyzing all the evidence, and after hearing of the bizarre episodes in the life of their client, they decided that the only possibility of salvation was in a defense of insanity. For the client to disclose not only everything about this particular crime but also everything about other crimes which might have a bearing upon his defense, requires the strictest confidence in, and on the part of, the attorney.

When the facts of the other homicides became public, as a result of the defendant’s testimony to substantiate his claim of insanity, “Members of the public were shocked at the apparent callousness of these lawyers, whose conduct was seen as typifying the unhealthy lack of concern of most lawyers with the public interest and with simple decency.” A hue and cry went up from the press and other news media suggesting that the attorneys should be found guilty of such crimes as obstruction of justice or becoming an accomplice after the fact. From a layman’s standpoint, this certainly was a logical conclusion. However, the Constitution of the United States of America attempts to preserve the dignity of the individual and to do that guarantees him the services of an attorney who will bring to the Bar and to the Bench every conceivable protection from the inroads of the State against such rights as are vested in the Constitution for one accused of crime. Among those substantial constitutional rights is that a defendant does not have to incriminate himself. His attorneys were bound to uphold that concept and maintain what has been called a sacred trust of confidentiality.

The following language from the brief of the amicus curiae further points up the statements just made: “The client’s Fifth Amendment rights cannot be violated by his attorney. There is no viable distinction between the personal papers and criminal evidence in the hands or mind of the client. Because the discovery of the body of Alicia Hauck would have presented ‘a significant link in a chain of evidence tending to establish his guilt’, Garrow was constitutionally exempt from any statutory requirement to disclose the location of the body. And Attorney Belge, as Garrow’s attorney, was not only equally exempt, but under a positive stricture precluding such disclosure. Garrow, although constitutionally privileged against a requirement of compulsory disclosure, was free to make such a revelation if he chose to do so. Attorney Belge was affirmatively required to withhold disclosure. The criminal defendant’s self-incrimination rights become completely nugatory if compulsory disclosure can be exacted through his attorney.”

In the recent and landmark case of United States v Nixon the court stated: “the constitutional need for production of relevant evidence in a criminal proceeding is specific and neutral to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated.” In the case at bar we must weigh the importance of the general privilege of confidentiality in the performance of the defendant’s duties as an attorney, against the inroads of such a privilege on the fair administration of criminal justice as well as the heart tearing that went on in the victim’s family by reason of their uncertainty as to the whereabouts of Alicia Hauck. In this type situation the court must balance the rights of the individual against the rights of society as a whole. There is no question but Attorney Belge’s failure to bring to the attention of the authorities the whereabouts of Alicia Hauck when he first verified it, prevented bringing Garrow to the immediate bar of justice for this particular murder. This was in a sense, obstruction of justice. This duty, I am sure, loomed large in the mind of Attorney Belge. However, against this was the Fifth Amendment right of his client, Garrow, not to incriminate himself. If the Grand Jury had returned an indictment charging Mr. Belge with obstruction of justice under a proper statute, the work of this court would have been much more difficult than it is.

There must always be a conflict between the obstruction of the administration of criminal justice and the preservation of the right against self incrimination which permeates the mind of the attorney as the alter ego of his client. But that is not the situation before this court. We have the Fifth Amendment right, derived from the Constitution, on the one hand, as against the trivia of a pseudo-criminal statute on the other, which has seldom been brought into play. Clearly the latter is completely out of focus when placed alongside the client-attorney privilege. An examination of the Grand Jury testimony sheds little light on their reasoning. The testimony of Mr. Armani added nothing new to the facts as already presented to the Grand Jury. He and Mr. Belge were cocounsel. Both were answerable to the Canons of professional ethics. The Grand Jury chose to indict one and not the other. It appears as if that body were grasping at straws.

It is the decision of this court that Francis R. Belge conducted himself as an officer of the court with all the zeal at his command to protect the constitutional rights of his client. Both on the grounds of a privileged communication and in the interests of justice the indictment is dismissed.

Hofmann v. Conder, 712 P.2d 216 (Utah 1985)

This matter comes before the Court in an extraordinary proceeding to prohibit the district court from compelling petitioner’s hospital nurse to testify about statements she overheard petitioner make to his attorney. The trial court made no findings of fact, although it prepared a memorandum decision. It appears from that decision that the controlling issue on which the trial court decided the matter was a legal one, namely, the standard determining when the presence of a third party during communications between a lawyer and client results in a waiver of the attorney-client privilege. We hold that the trial court erred in deciding that the attorney-client privilege applies only if the presence of a third person, who overhears a confidential communication, is “necessary for urgent or life-saving procedures.” The proper standard is whether the third person’s presence is reasonably necessary under the circumstances.

The record establishes that the presence of petitioner’s hospital nurse was reasonably necessary under the circumstances. The threshold question of whether the communication was intended to be confidential was not ruled on by the trial court, or at least the judge’s decision gives us no indication of his having made any factual findings on that question. Although there are ambiguities in the record, the totality of the circumstances surrounding petitioner’s communications to his attorney require the inference that the communication was intended to be confidential and within the protection of the statutory privilege. Immediately before the communication, petitioner had requested the presence of his attorney, he had stated that he would not make a statement to the police that night, and he had acquiesced in the request of his attorney that the police and hospital security personnel not only leave the room but also go far enough away to be out of earshot. Given his helpless physical condition and the intensive nature of the hospital care he had been receiving throughout the evening and during this incident, we cannot infer that petitioner intended his communications to his attorney to be public. Since the presence of the hospital nurse was reasonably necessary under all the circumstances, the privilege was not waived because of that presence.

The order of the trial court is vacated, and this matter is remanded for the entry of a protective order preventing the disclosure by the witness of confidential communications overheard by her.

ZIMMERMAN, Justice (dissenting).

I agree that Judge Conder applied the wrong standard in concluding that the presence of the nurse made the attorney-client privilege unavailable. A third person’s presence should not avoid an otherwise available privilege if the third person’s presence is reasonably necessary under the circumstances. The evidence indicates that the nurse’s presence was reasonably necessary for Hofmann’s well-being.(n.2 in opinion) I also conclude that the privilege is not lost if a third person whose presence is not otherwise justified overhears a confidential attorney-client communication without the client’s knowledge, so long as reasonable precautions were taken to protect against overhearing. However, because the nurse’s presence was justified, the reasonableness of the precautions taken to exclude third parties has no bearing on the question before us.

I disagree with the result reached by the Court, however, and would uphold the ruling below, because I conclude that petitioner has not met the threshold requirement for claiming an attorney-client privilege—petitioner has failed to establish that the communication between the client and the attorney was intended by the client to be confidential. “The mere fact that the relationship of attorney and client exists between two individuals does not ipso facto make all communications between them confidential. The circumstances must indicate whether by implication the communication was of a sort intended to be confidential.” I think the Court slights this inquiry. By failing to carefully consider the question of the client’s intent, courts may shield from scrutiny communications that the privilege was not created to protect.

There is evidence in the record sufficient to establish that the attorney thought the communication was at least private and perhaps confidential. However, I find the record very sparse on the question of the client’s intention. Although the client was available to give an affidavit in support of his claim of privilege, the record is strangely devoid of direct evidence as to the client’s state of mind at the time of the communication. As for the facts and circumstances in the record that constitute indirect evidence of his intent, I find them ambiguous at best. All persons must give evidence, unless they establish a recognized justification for refusing to do so. Petitioner has the burden of establishing that the communication was privileged. On the present state of the record, I conclude that petitioner has not carried this burden. Therefore, I would uphold the trial court’s refusal to find the communication privileged.

X Corp. v. Doe, 805 F.Supp. 1298 (E.D. Va. 1992)

Ellis, District Judge

Few problems are as vexing as determining what evidence justifies a lawyer’s disclosure of a client’s confidential information and documents, which the lawyer believes reflect an ongoing or future crime or fraud. This case presents precisely this problem. Plaintiff, X Corp. brings this suit, in part, to prevent defendant, John Doe, X Corp.’s former in-house counsel, from disclosing X Corp.’s confidential information and documents retained by Doe following his discharge from X Corp. X Corp. also seeks return of the documents. In support of the relief sought, X Corp. cites the attorney-client privilege, the parties’ confidentiality agreement, and the lawyer’s general duty to preserve a client’s confidences. For his part, Doe claims that the documents in issue disclose ongoing civil and criminal frauds perpetrated by X Corp. against the federal government. As such, according to Doe, the documents fall within the public policy crime-fraud exception to the attorney-client privilege and to any general or contractual duty of confidentiality.

The matter is before the Court on X Corp.’s motion for a preliminary injunction. For the reasons stated here, the motion is granted in part and denied in part.

Facts

X Corp. hired Doe in March 1989 as a member of its in-house legal staff based in Northern California. Formerly an Associate Deputy Attorney General of the United States and Chief of Staff to the Attorney General, Doe was a member of the bar of the state of Pennsylvania. When he was hired, Doe executed an “Employment, Invention and Confidential Information Agreement”, in which he expressly agreed (i) to return to X Corp. all records obtained during, or in connection with, his employment and (ii) to preserve X Corp.’s confidential information. Thereafter, in the course of his employment, Doe regularly received confidential information from X Corp. management and its employees in order to provide legal opinions and advice. During approximately two years with X Corp., Doe apparently excelled; his professional performance was regarded as excellent. Eventually he was promoted to Group Counsel with primary responsibility worldwide for X Corp.’s compliance with numerous government regulations and antitrust laws.

In November 1990, Doe was transferred from X Corp.’s California office to Virginia as X Corp.’s only United States-based lawyer outside California. The parties sharply dispute the reason for the transfer. In X Corp.’s view, the transfer occurred because Doe failed the California bar examination. Doe, on the other hand, asserts that he initiated the transfer to escape California’s high cost of living and because he and his wife wanted to live closer to their relatives in Virginia. Doe also contends that X Corp. negotiated with him to retain his services because he was “an important contributor and asset” and because X Corp. wanted to locate a regulatory and antitrust attorney near Washington, D.C.

X Corp. terminated Doe’s employment effective February 28, 1992, providing him with thirty-one weeks severance pay. The reason for Doe’s discharge is as hotly disputed as the reason for the transfer. X Corp. claims Doe was laid-off as part of a company-wide reduction in force involving over 700 employees. Doe counters, however, that he was unlawfully fired in retaliation for actions X Corp. believed he was taking in furtherance of a possible qui tam suit. On leaving X Corp.’s employ, Doe took with him copies of certain documents and files, leaving the originals with X Corp. Doe claims these documents reveal that X Corp. is defrauding the federal government, in violation of the False Claims Act. The documents submitted in camera are plainly relevant to these allegations. But without explanatory testimony or evidence, their significance in terms of establishing an ongoing fraudulent scheme is not entirely clear.

By letter dated February 28, 1992, Doe, through counsel, asserted a state law wrongful termination claim against X Corp., provided X Corp. with a draft complaint, and offered to discuss the matter prior to filing the complaint in this Court. The draft complaint contained specific references to, as well as excerpts from, X Corp.’s allegedly confidential documents. Thereafter, on March 5, 1992, X Corp. filed this lawsuit on the public record of this Court, but at that time, neither served Doe nor informed him of the suit’s existence. X Corp.’s complaint asserts five causes of action: (i) breach of fiduciary duty by allegedly revealing confidences to his own attorney; (ii) breach of the Confidentiality Agreement; (iii) recovery of the allegedly misappropriated documents and records; (iv) injunctive relief to prevent disclosure of alleged confidential information in his personal claim against X Corp. or for any purpose; and (v) a declaratory judgment that Doe may not disclose the allegedly confidential information. X Corp. claims that filing this action was necessary to prevent disclosure of X Corp.’s confidential information in the event Doe filed his draft complaint on the public record. That circumstance never materialized, as Doe ultimately consented to delay filing his wrongful termination action and then to do so under temporary seal, which he did on April 7, 1992. One week later, X Corp. notified Doe of the existence of this action.

On April 20, 1992, X Corp. moved this Court for a preliminary injunction (i) to maintain Doe’s wrongful termination lawsuit, and all pleadings and papers filed therein, under seal until its conclusion; (ii) to prohibit Doe and his lawyer from making any disclosures of X Corp.’s allegedly privileged and confidential information; and (iii) to compel Doe to return all allegedly misappropriated documents. Doe, by counsel, agreed to refrain from further disclosures of X Corp.’s claimed confidential information until the Court’s ruling. On May 4, 1992, Doe filed his counterclaim alleging retaliatory discharge.

Analysis

Without doubt, this litigation presents “grave or serious questions,” questions involving difficult and troubling ethical issues arising in the context of attorney-client confidentiality. Few questions are graver or more serious in the practice of law than determining what evidence of crime or fraud justifies a lawyer’s disclosure of his client’s confidential information. Moreover, allegations of attorney misconduct, or even potential misconduct, engender significant and serious questions of professional conduct critical to the client, to the accused attorney, and to the bar as a whole. Such allegations, regardless of their veracity, erode the already fragile public confidence in the legal profession and in the administration of justice. And it is undeniable that our legal system cannot function effectively unless the public has confidence in the integrity and competence of the system and its participants. Thus, it is paramount that lawyers understand and abide by settled and accepted norms of professional conduct. But even settled and accepted norms frequently provide inadequate or ambiguous guidance in the face of specific factual circumstances. So it is here.

This litigation focuses on two professional standards of attorney confidentiality—(i) the evidentiary attorney-client privilege and (ii) the broader ethical duty of confidentiality—and their application to the specific facts presented. Understanding the distinction between these two standards is essential to the matter at bar. For that reason, it is worth describing them here in some detail.

The first of these standards, the evidentiary attorney-client privilege, is quite familiar, and the principles associated with it are well-settled. This evidentiary privilege applies to disclosures of certain types of confidences communicated between client and attorney during the course of the attorney’s representation of the client. To prevent such disclosures, the client, through counsel or otherwise, may invoke the privilege. The purpose of the attorney-client privilege

is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Nevertheless, because it “impedes the full and free discovery of the truth,” and is “in derogation of the public’s ‘right to every man’s evidence,’” the attorney-client privilege is not “favored” by federal courts. Accordingly, the privilege is narrowly construed to apply only to those situations in which the party invoking the privilege consulted an attorney for the purpose of securing a legal opinion or services and in connection with that consultation communicated information intended to be kept confidential.

The privilege is determined on a case-by-case basis. It well-settled that the privilege protects corporate as well as individual clients, and that it attaches to in-house as well as outside counsel. The party seeking to invoke the privilege bears the burden of establishing that the attorney-client relationship existed, that the particular communications at issue are privileged, and that the privilege has not been waived.The Fourth Circuit has adopted the “classic test” for application of the attorney-client privilege announced in United Shoe Machinery Corp.:

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege as been (a) claimed and (b) not waived by the client.

Under the exception to the privilege commonly known as the “crime-fraud exception,” communications made for an unlawful purpose or to further an illegal scheme are not privileged. For example, the attorney-client privilege is extinguished when an attorney “is consulted not with respect to past wrongdoings but rather to further a continuing or contemplated criminal or fraudulent scheme.” But the privilege may also be overcome even in circumstances where the attorney is not consulted for the purpose of furthering a crime or fraudulent scheme. Thus, the privilege cannot be used as a shield to preclude disclosure of information concerning an ongoing or future crime or fraud collaterally learned by a lawyer during the course of his representation.

To overcome an established privilege using the crime-fraud exception, the party opposing the privilege need make only a prima facie showing that the communications either (i) were made for an unlawful purpose or to further an illegal scheme or (ii) reflect an ongoing or future unlawful or illegal scheme or activity. The purported crime or fraud need not be proved. Requiring only a prima facie showing may lead to the disclosure of confidential communications that do not reflect a genuine crime or fraud. Presumably, this would occur infrequently. The alternative—requiring actual proof of the crime or fraud in lieu of the prima facie showing—imposes an impractical and unduly burdensome standard that tips the balance too far in favor of confidentiality and against the “full and free discovery of the truth.”

The evidentiary attorney-client privilege, while more familiar, is not the lawyer’s only duty of confidentiality to a client. Too often unrecognized is the broader ethical duty of an attorney to preserve a client’s confidences and secrets that may fall outside the attorney-client privilege. The leading case discussing this ethical duty is the Fifth Circuit’s decision in Brennan’s Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168 (5th Cir.1979). There, defendants took the position that the attorney-client privilege barred an attorney from further representation of a former joint client. The Fifth Circuit disagreed, noting that “the fundamental flaw in defendants’ position is a confusion of the attorney-client evidentiary privilege with the ethical duty to preserve a client’s confidences.” The panel held that although a former joint client could not assert the attorney-client privilege as to matters encompassed by the former joint representation because confidences cannot arise between joint clients, a broader ethical duty protects joint clients. In this regard, the court stated:

Information acquired [from a client] is sheltered from use by the attorney against his client by virtue of the existence of the attorney-client relationship. This is true without regard to whether someone else may be privy to it. The obligation of an attorney not to misuse information acquired in the course of representation serves to vindicate the trust and reliance that client’s place in their attorneys. A client would feel wronged if an opponent prevailed against him with the aid of an attorney who formerly represented the client in the same matter this would undermine public confidence in the legal system as a means for adjudicating disputes.

As the Fifth Circuit sensibly recognized in Brennan’s and Doe, attorney confidentiality is essential to sustaining public confidence in the legal profession and the legal system. Clients therefore have a right to enforce that confidentiality, absent specific circumstances abrogating 1308*1308 that right. Of course, an attorney’s duty to his client is limited by his duty to comply with the law and the standards of professional conduct.

Consistent with most jurisdictions, Virginia recognizes a broad duty of confidentiality in Canon 4 of the Virginia Code of Professional Responsibility, which states: “A Lawyer Should Preserve the Confidences and Secrets of a Client.” The corresponding Disciplinary Rules provide in relevant part:

DR4-101. Preservation of Confidences and Secrets of a Client.—(A) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(B) Except as provided by DR 4-101(C) and (D), a lawyer shall not knowingly:

(1) Reveal a confidence or secret of his client.

(2) Use a confidence or secret of his client to the disadvantage of the client.

(3) Use a confidence or secret of his client for the advantage of himself or a third person, unless the client consents after full disclosure.

Thus, mandatory Disciplinary Rule 4-101 defines two categories of protected information: (i) a narrow category of “confidences,” comprising information protected by the attorney-client privilege, and (ii) a broader category of “secrets,” encompassing “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” In distinguishing between these two categories, Virginia has manifest its intention to protect from disclosure a range of communications broader than that protected by the attorney-client privilege. Confidentiality of both categories of information must be maintained. Yet the duty of confidentiality imposed by the Virginia Code of Professional Responsibility is not absolute. A lawyer may reveal confidences and secrets in specific circumstances. Relevant here is a provision, similar in purpose and effect to the crime-fraud exception to the attorney-client privilege, permitting an attorney to reveal “information which clearly establishes that his client has, in the course of the representation, perpetuated upon a third party a fraud related to the subject matter of the representation.” Information “clearly establishes” the perpetration of a fraud if it is information that a reasonable attorney in the same circumstances would find convincing evidence of the alleged fraudulent activities.

Yet despite its similar purpose, DR4-101(C)(3)’s “clearly establishes” standard imposes a heavier burden on the party seeking disclosure than the prima facie standard of the crime-fraud exception to the attorney-client privilege. In other words, matters subject to the attorney-client privilege seem to be less stringently protected from disclosure than matters subject to the ethical privilege. This, at first blush, seems puzzling, indeed paradoxical, for one would think that the attorney-client privilege deserves the greater protection. On reflection, however, the two different standards make sense given that they apply in different contexts. Succinctly put, the evidentiary attorney-client privilege arises only where disclosures are sought to be compelled in some litigation context, whereas the broader ethical duty arises in the context of voluntary or uncompelled disclosures, typically outside a litigation context. More particularly, the attorney-client privilege is an evidentiary privilege applicable where someone seeks to compel an attorney or his client to reveal communications between lawyer and client made for the purpose of securing a legal opinion or legal services and intended to be kept confidential. Thus, the privilege arises in the context of litigation and is therefore subject to discipline of the adversary process and the safeguard of judicial scrutiny, if the affected client invokes the privilege and the opposing party seeks to overcome it. Significantly, however, the evidentiary attorney-client privilege does not control where disclosures occur, or potential disclosures are contemplated, in circumstances involving uncompelled disclosure and no judicial scrutiny. In such circumstances, the ethical duty—with its appropriately higher standard of protection against unwarranted disclosure of suspected fraudulent activities—governs. The voluntary nature of the actual or potential disclosures and the absence of judicial scrutiny justify the higher “clearly establishes” standard for disclosure of purported evidence of ongoing or future fraud. In sum, the prima facie standard under the crime-fraud exception to the attorney-client privilege is a standard applied in the litigation context by judges, not lawyers, for the purpose of deciding whether to compel the disclosure of putatively privileged material. By contrast, the more stringent “clearly establishes” standard for disclosure of confidential information is one that is applied in the first instance by lawyers, not judges, as they struggle with the decision whether voluntarily to disclose certain confidential information they believe reflects an ongoing or future fraud. Judges apply the “clearly establishes” standard in the second instance only to review post hoc whether a voluntary disclosure was ethically appropriate or, as here, to decide whether to enjoin a potential voluntary disclosure.

In light of these principles, any reliance here on the evidentiary attorney-client privilege and its crime-fraud exception is misplaced. This is not a case involving compelled disclosures. No one seeks to compel Doe to disclose privileged material against X Corp.’s invocation of the attorney-client privilege. Rather, this is a case of voluntary disclosure; Doe voluntarily has disclosed or wishes to disclose a broad range of information X Corp. believes should be treated confidentially. Thus, applicable here is the broader ethical duty of confidentiality and the “clearly establishes” standard for disclosure of evidence of fraud.

Given this, in proving its claim that Doe is obligated to maintain its confidences pursuant to the ethical duty, X Corp. bears the initial burden of establishing that the duty exists and that the disputed communications are subject to it. To do so, X Corp. must show, inter alia, that the communications sought to be protected are “confidences” or “secrets” within the meaning of Virginia Code of Professional Responsibility DR4-101(A). If X Corp. carries this burden and establishes that Doe is ethically bound not to disclose this material, the burden then shifts to Doe to show that the material and information he voluntarily disclosed or seeks to disclose “clearly establish[]” that during the course of Doe’s representation, X Corp. perpetrated a fraud related to the subject matter of the representation upon a third party, namely, the federal government. To accomplish this, Doe must demonstrate more than mere suspicion of fraud; he must show that a reasonable attorney in his position would find the communications at issue to be convincing evidence of the perpetration of a fraud on the government during the course of his representation related to the subject matter of that representation. But the fraud itself need not be conclusively proved. Thus, the issue for trial is not whether X Corp. was in fact perpetrating a fraud on the government. Rather, the primary issues for trial are (i) what Doe knew or should have known at the time of the intended disclosures (or the time X Corp. sought to enjoin disclosures) and (ii) whether a reasonable attorney with that knowledge would find that it clearly establishes an ongoing or planned fraud, that is, that it constitutes convincing evidence of an ongoing or planned fraud. If Doe satisfies the “clearly establishes” standard, disclosure is permissible (but not required), even if X Corp. ultimately proves that no fraud existed.

There may be circumstances where ongoing or contemplated frauds actually exist, but disclosure is impermissible because the evidence relied on by the attorney falls short of clearly establishing the fraud. This result might permit the fraud to continue. But neither mere suspicion of fraud, nor the mere risk of undiscovered fraud, justify abrogating the duty of attorney confidentiality. A windfall to a wrongdoer may be the price exacted for the benefits conferred on the public and the legal system by vigilantly-maintained attorney confidentiality.

In the Matter of a Grand Jury Investigation, 453 Mass. 453 (2009)

Spina, J.

This case requires us to decide whether the attorney-client privilege applies where a client leaves messages on his counsel’s telephone answering machine threatening to harm others and the attorney discloses those communications in order to protect those threatened.

The salient facts are not in dispute. Attorney John Doe was representing Michael Moe, a father, in a care and protection proceeding in the Juvenile Court. On November 8, 2007, two days after an adverse ruling by a Juvenile Court judge, Moe left six messages on Attorney Doe’s answering machine between 1:08 A.M. and 1:24 A.M. Moe indicated that he knew where the judge lived and that she had two children. In the fourth message, a voice that Attorney Doe recognized as Moe’s wife stated that she and Moe were going to “raise some hell.” In the fifth message, Moe stated that “some people need to be exterminated with prejudice.” Attorney Doe subsequently erased the messages from the answering machine.

During the following week, Attorney Doe observed that Moe had become “more and more angry,” and on November 13, 2007, he filed a motion to withdraw as Moe’s counsel, which was subsequently allowed. Concerned for the safety of the judge and her family, he disclosed the substance of the messages to the judge.

On November 21, 2007, Attorney Doe was interviewed by a State trooper regarding the substance of the messages, but declined to sign a written statement.

A District Court complaint alleging threats to commit a crime and intimidation of a witness subsequently issued against Moe. The Commonwealth then initiated grand jury proceedings and filed a motion to summons Attorney Doe before the grand jury. That motion was allowed. On December 21, 2007, Attorney Doe, citing the attorney-client privilege, moved to quash the summons. A judge in the Superior Court denied Attorney Doe’s motion, reasoning that Attorney Doe and Moe had not carried their burden of demonstrating that the attorney-client privilege applied “because they failed to show that the messages were left in an attempt to obtain legal services.” Attorney Doe filed a motion to reconsider, requesting, inter alia, an evidentiary hearing. The motion was denied. The Commonwealth and Attorney Doe submitted a joint request to report the decision to the Appeals Court. The Superior Court judge reported the case, and we transferred the case here on our own motion.

Neither party disputes that Attorney Doe could, consistent with rule 1.6, disclose the substance of Moe’s messages. Rule 1.6 provides, in pertinent part:

(a) A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b). (b) A lawyer may reveal, and to the extent required by Rule 3.3, Rule 4.1(b), or Rule 8.3 must reveal, such information: (1) to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm.”

While nothing in rule 1.6(b) required Attorney Doe to disclose Moe’s communications to the judge or police, he had discretion to do so. However, the ethical permissibility of Attorney Doe’s disclosure does not resolve the distinct issue presented here: whether Attorney Doe can be compelled to testify before the grand jury.

Evidentiary privileges “are exceptions to the general duty imposed on all people to testify.” We accept such privileges “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” The attorney-client privilege “is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.” A party asserting the privilege must show that (1) the communications were received from the client in furtherance of the rendition of legal services; (2) the communications were made in confidence; and (3) the privilege has not been waived.

The Commonwealth contends that the attorney-client privilege does not apply because Moe’s communications were not made “for the purpose of facilitating the rendition of legal services.” In making this argument, the Commonwealth implicitly asks us to reconsider a portion of our discussion in the Purcell case.

In Purcell, the client was discharged as a maintenance man at the apartment building in which his apartment was located and had received an order to vacate his apartment. During consultation with an attorney, the client stated an intent to burn the apartment building. The attorney disclosed these communications to police and criminal charges were brought against the client. When the prosecutor subpoenaed the attorney to testify at trial, the attorney filed a motion to quash, which was denied. The central issue in that case was whether the crime-fraud exception to the attorney-client privilege applied. We concluded that the communications would not fall within the crime-fraud exception unless the district attorney could establish facts by a preponderance of the evidence showing that the client’s communication sought assistance in or furtherance of future criminal conduct.

Recognizing that whether the attorney-client privilege applied at all was open on remand, we also considered whether a communication of an intention to commit a crime, if not within the crime-fraud exception, could be considered a communication for the purposes of facilitating the rendition of legal services. We held that a “statement of an intention to commit a crime made in the course of seeking legal advice is protected by the privilege, unless the crime-fraud exception applies.” We reasoned that a gap between the crime-fraud exception and the applicability of the privilege “would make no sense,” because the attorney-client privilege was premised on the benefits of unimpeded communication between attorney and client, and noted that “an informed lawyer may be able to dissuade the client from improper future conduct and, if not, under the ethical rules may elect in the public interest to make a limited disclosure of the client’s threatened conduct.”

The limited disclosure adverted to in the Purcell case occurred here. Concerned for the safety of the judge, her family, and a social worker, Attorney Doe disclosed Moe’s communications to the judge and law enforcement authorities to protect them from harm.

We discern no reason to depart from the Purcell decision, and hold that Moe’s communications were made in furtherance of the rendition of legal services and thus protected by the attorney-client privilege. The Commonwealth’s argument to the contrary essentially raises an issue of germaneness. Scholars, commentators, and courts have formulated a number of tests for determining the germaneness of a client’s communication. However, none of these formulations appears to give clients 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 not only would hamper attorney-client discourse, but also would discourage lawyers from exercising their discretion to make such disclosures, as occurred here, and thereby frustrate the beneficial public purpose underpinning the discretionary disclosure provision of rule 1.6. Furthermore, any test to ascertain the germaneness of an ostensibly threatening communication on a case-by-case basis would make the privilege’s applicability uncertain, rendering the privilege “little better than no privilege.” Warning clients that communications deemed irrelevant to the matter for which they have retained counsel will not be protected not only may discourage clients from disclosing germane information, but also may disincline clients to share their intentions to engage in criminal behavior. In the latter circumstance, a lawyer’s ability to aid in the administration of justice by dissuading a client from engaging in such behavior is impaired. The lawyer also may never receive the very information necessary for him or her to determine whether to make a limited disclosure to prevent the harm contemplated by the client.

In sum, we reaffirm that a client’s communications to his lawyer threatening harm are privileged unless the crime-fraud exception applies. Because the Commonwealth does not assert that Moe’s communications come within the crime-fraud exception, they were privileged. The order denying Attorney Doe’s motion to quash is hereby vacated and the case is remanded to the Superior Court for further proceedings consistent with this opinion.