PARSING PRIVILEGE: DOES THE ATTORNEY-CLIENT PRIVILEGE ATTACH TO AN ANGRY CLIENT'S CRIMINAL THREAT VOICED DURING AN OTHERWISE PRIVILEGED ATTORNEY-CLIENT CONSULTATION?

• Author: Edward

Contents INTRODUCTION I. A DESCRIPTION OF THE IVERS LITIGATION A. The Original In Limine Motion to Exclude in the Federal District Court B. The Subsequent Motion for Clarification in the Federal District Court C. The Decision by the Court of Appeals for the Eighth Circuit II. THE THRESHOLD POLICY QUESTION: DOES THE TRIAL JUDGE HAVE THE POWER TO REVIEW AN ATTORNEY-CLIENT EXCHANGE LINE BY LINE TO DETERMINE WHETHER A SPECIFIC PASSAGE IS PRIVILEGED EVEN WHEN IT IS CLEAR THAT THE PRIMARY, OVERALL PURPOSE OF THE EXCHANGE WAS TO OBTAIN LEGAL SERVICES? A. The Precedents Relevant to the Question B. The Policy Merits of the Question 1. The Macrocosm: Systemic Considerations 2. The Microcosm: The Legitimate Interests of the Individual Privilege Holder C. The Resolution of the Threshold Question III. THE NEXT POLICY QUESTION: WHEN IS IT APPROPRIATE FOR THE TRIAL JUDGE TO EXERCISE THE POWER TO ENGAGE IN LINE-BY-LINE REVIEW OF THE CONTENTS OF OTHERWISE PRIVILEGED DOCUMENT OR A SIMILAR REVIEW OF ORAL ATTORNEY-CLIENT EXCHANGES? A. Review in the Trial Judge's Discretion B. The Opposing Party's Entitlement to a Review IV. THE FINAL POLICY QUESTION: IN CONDUCTING AN IN CAMERA REVIEW IN CASES INVOLVING THREATS, SHOULD THE JUDGE APPLY A STRICT INCIDENCE REQUIREMENT TO DECIDE WHETHER THE CLIENT'S LANGUAGE IS UNPRIVILEGED, OR IS IT PREFERABLE TO ADOPT A CATEGORICAL EXCEPTION LIMITED TO CRIMINAL THREATS? A. The Approach Taken by Judge Pratt and the Eighth Circuit: The Strict Application of the Incidence Requirement B. An Alternative Approach: The Recognition of a Categorical Exception for Criminal Threats Stated During Attorney-Client Consultations 1. The Countervailing Nature of the Interest 2. The Magnitude of the Interest 3. A Carefully Circumscribed Exception Stated in Bright-Line Terms CONCLUSION "Lawyers tend to pay far too little attention to the feelings of their clients. Typically, lawyers ... see themselves solely as 'gatherers of facts.' ... [F]eelings are perceived as irrelevant or objects to be removed from the discussion.... [However,] empathy, the real mortar of any relationship, requires hearing, understanding, and acceptance of feelings which are part and parcel of any situation.... [T]he problems people bring to lawyers do not come in nice, neat, rational packages devoid of ... emotional content. Problems evoke feelings and any solutions which the lawyer fashions must effectively deal with feelings. "

--David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach 25-26 (1977)

INTRODUCTION

Privilege doctrine is an especially important area of evidence law. Most evidentiary doctrines, such as authentication and the hearsay rule, deal with the courts' institutional policy of ensuring the reliability of the evidence that findings of fact are based on. (1) In contrast, privilege law rests on extrinsic social policy. (2) During the 1973 hearings on the then-proposed Federal Rules of Evidence, former Supreme Court Justice Arthur Goldberg distinguished privilege doctrine from other evidentiary rules:

[Privilege law] is the concern of the public at large.... [Privileges] involve the relations between husband and wife. As the Supreme Court suggested in Griswold v. Connecticut [381 U.S. 479 (1965),] the marital privilege constitutes the basis of the family relation and antedates even the adoption of our Constitution. They involve the relations between lawyer and client, a privilege that long antedates the adoption of our Constitution. ... ... They relate to the fundamental rights of citizens. (3) In the final House report on the proposed rules, Representative Elizabeth Holtzman remarked that "unlike most evidentiary rules, privileges protect interpersonal relationships outside of the courtroom." (4) The Supreme Court hands down a relatively small number of decisions each year, and understandably the Court endeavors to select cases that have social significance and impact. Since the enactment of the Federal Rules of Evidence, the Supreme Court has handed down more decisions dealing with privileges than with any other part of the Federal Rules. (5) In early 2021, the Supreme Court added to its body of privilege jurisprudence when it rendered its decision in U.S. Fish & Wildlife Service v. Sierra Club, Inc., (6) dealing with the deliberative-process privilege. (7)

Although there are numerous privileges in contemporary American law, the attorney-client doctrine was the first to be recognized in English law. (8) American courts have waxed poetic about the privilege. They have described it as "sacrosanct," (9) "the most sacred of all legally recognized privileges," (10) and the "most fundamental of the common law privileges."11 If the privilege claimant can establish the necessary prima facie case--that a holder is asserting the privilege for a confidential communication not only between attorney and client but also incident to the relation12--the privilege is "absolute." (13) The opponent cannot defeat the prima facie case by making an ad hoc showing of a compelling need for the information; rather, the privilege can be defeated only by showing a waiver by the holder or the applicability of an exception to the scope of the privilege. (14)

Given the long history of the attorney-client privilege, it is surprising that one of the most fundamental questions relating to the privilege has received little attention: the unit of analysis for a confidential "communication." Suppose that a privilege claimant can show that the primary purpose (15) for an attorney-client, exchange was facilitating the rendition of legal services by the attorney to the client. If the exchange took the form of a writing such as a letter from the client to the attorney, does the privilege automatically protect the entirety of the letter? If the exchange was oral, does the privilege shield every statement made by the client during the consultation? Or does the judge have the power to "parse" privilege, that is, to review the writing or oral exchange line by line, (16) separately apply the privilege's requirements to each sentence or clause, and treat discrete passages as unprivileged?

There has been little discussion of this fundamental question. The Supreme Court has never directly addressed the question. However, that very issue arose in a 2020 decision by the United States Court of Appeals for the Eighth Circuit, United States v. Ivers, (17) described in detail in Part I. Ivers was charged with making a criminal threat against a federal judge. (18) The federal judge in question had ruled against Ivers in an earlier civil action against an insurance company. (19) Ivers then consulted two volunteer attorneys from the local pro se project to learn whether he had a right to file a second, related suit and whether they would represent him in the proposed second suit. (20) Ivers and the two attorneys had a thirty-minute telephone conference. (21) It was clear that the primary purpose of the conference was to obtain the attorneys' assessment of the legal merit of a second suit. (22) During the conference, Ivers allegedly threatened to kill the judge. (23)

During a subsequent prosecution for the threat, over the defense's attorney-client privilege objection, the presiding judge heard the attorneys' testimony about the consultation and reviewed the notes taken by one of the attorneys. (24) After doing so, the judge decided to admit not only evidence of the threat itself but also related angry statements by Ivers, such as "I had overwhelming evidence" and the earlier judge had "stacked the deck" against him. (25) The Eighth Circuit did not deny that the predominant purpose of the telephone conference related to the rendition of legal services to Ivers. (26) However, the court upheld the trial judge's ruling that six individual statements stating Ivers's feelings, including the threat, were unprivileged because they did not seek legal advice. (27) On the fundamental question of the unit of analysis, the court held that the trial judge had the power to apply the privilege requirements to individual statements that Ivers made during the attorney-client consultation. (28)

The thesis of this short article is that in Ivers, the Court of Appeals reached several correct conclusions about privilege doctrine but erred in other, important respects. Part I of this article is a detailed description of the Ivers litigation at both the District Court and Court of Appeals levels. Part II turns to the neglected question of whether the trial judge is authorized to dissect an attorney-client exchange line by line even when it is clear that the primary purpose of the exchange was to obtain legal services. It argues that the Eighth Circuit correctly concluded that trial judges possess that power. Part III then takes up the question of when it is appropriate for trial judges to exercise that power. Although the party opposing the privilege claim is not entitled to in camera review as a matter of course, the judge should undertake such a review when the party presents specific facts establishing that the review would be more than a fishing expedition. Like Part II, Part III concludes that on the particular facts of the case, the Eighth Circuit reached the correct result in upholding the trial judge's decision to conduct a line-by-line review in Ivers.

Finally, Part IV addresses the question of whether the District Court and Court of Appeals properly denied privilege protection on the ground that Ivers's statements expressing his feelings were not incident to the attorney-client relationship. It contends that both Judge Pratt and the Court of Appeals applied an unduly strict, legalistic conception of the incidence requirement. Although on their face Ivers's statements voicing his angry feelings did not concern the merit of his legal claims, an effective legal counselor must elicit and deal with the client's emotions related to the facts of the...