Section 23.40 Lawyer-Client Privilege

• Library: Criminal Practice 2012 Supp

A. (§23.40) Lawyer-Client Privilege

An attorney is incompetent to testify as to any communication made to the attorney by the client in that relationship. Section 491.060(3), RSMo 2000. The privilege belongs to the client, not to the attorney. United States v. Long, 328 F. Supp. 233, 235 (E.D. Mo. 1971). As a result, only the client may waive the privilege. Id.

A client waives the privilege if the client places the subject matter of the privileged communication in issue. Sappington v. Miller, 821 S.W.2d 901, 904–05 (Mo. App. W.D. 1992). Thus, a client asserting the statute of frauds regarding the attorney’s authority to sign a settlement agreement waives the privilege. Id. Similarly, a movant in a post-conviction proceeding raising...