Vol. 28, No. 6 #2 (December 2005). ETHICALLY SPEAKING.

• Author: The Attorney-Client Privilege in Wyoming Park I, The Basics

Wyoming Bar Journal

2005.

Vol. 28, No. 6 #2 (December 2005).

ETHICALLY SPEAKING

WYOMING LAWYERDecember 2005/Vol. XXVIII, No. 6ETHICALLY SPEAKINGThe Attorney-Client Privilege in Wyoming Park I, The BasicsBy John M. Burman Virtually everyone has heard of the attorney-client privilege. A few people actually understand it. Many of them, including many lawyers, confuse the privilege with the ethical duty of confidentiality, the work-product doctrine, or both. This is the first in a series of articles that will address the three bases for the principle of confidentiality (the attorney-client privilege, the ethical duty of confidentiality, and the work-product doctrine) and attempt to explain those differences.(fn1)

Confidentiality in General

A lawyer's ethical duty of confidentiality is very broad. A lawyer may not reveal any information "relating to representation of a client . . . ,"(fn2) regardless of the source of the information.(fn3) The attorney-client privilege, by contrast, covers only communications between the lawyer and the client.(fn4) Since the privilege applies only to communications between an attorney and the attorney's client, it is a subset of the information which is confidential under the Rules of Professional Conduct. In sum, everything which is privileged is confidential, but only some things which are confidential are privileged.

The two doctrines apply at different times. The ethical duty of confidentiality applies to lawyers in all situations "other than those where evidence is sought from the lawyer through compulsion of law."(fn5) The privilege applies only in "judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client."(fn6) The attorney-client privilege, in other words, is a rule of evidence.

The Attorney-Client Privilege in Wyoming

Since the attorney-client privilege is part of the law of evidence, the beginning point for analyzing it, or any evidentiary privilege is the rules of evidence. Rule 501 addresses privileges. "Except as otherwise required by . . . statute or by these or other rules . . . the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the State of Wyoming in the light of reason and experience." The word "statute" is highlighted because the attorney-client privilege in Wyoming, as in most jurisdictions, is found in statute. (For purposes of cases filed in the federal courts in Wyoming, where the Federal

Rules of Evidence apply, the federal law of privilege applies-and the federal law of attorney-client privilege is not codified. (fn7))

The attorney-client privilege exists in Wyoming by virtue of Wyo. Stat. 1-12-101:

(a) The following persons shall not testify in certain respects:

(I) An attorney . . . concerning a communication made to him by his client . . . in that relation, or his advice to his client . . . . The attorney . . . may testify by express consent of the client . . . , and if the client . . . voluntarily testifies the attorney . . . may be compelled to testify on the same subject.

Under the statute, therefore, the attorney-client privilege in Wyoming exists only if three criteria are met: (1) there is a "communication;" (2) between a "client" and an "attorney;" (3) that is made "in that [attorney-client] relation." The general view in other jurisdictions is that a fourth element is required. The communication must have been made "in confidence."(fn8) The idea, of course, is that a client does not have a reasonable expectation of privacy when communications are not made in confidence.(fn9) Although this sensible requirement is missing from the plain language of Wyoming's statute, it seems to be implicit in it. Simply stated, there is no reason for an evidentiary privilege to protect communications which were not made with any reasonable expectation of privacy.

The Statutory Elements of the Attorney-Client Privilege

As noted above, the attorney-client privilege in Wyoming exists only if three elements are satisfied: (1) there is a "communication;" (2) between a "client" and an "attorney;" (3) that is made "in that [attorney-client] relation."(fn10) The three elements narrow the scope of the privilege significantly, and raise a number of important questions.

What is a "Communication?"

First, what is a communication? It is self-evident that oral or written statements to or from a client are communications. The more difficult issue is whether non-verbal acts are communications.

Nonverbal communications, such as a client acting out her recollection of what happened, facial expressions or gestures, are generally included within the attorney-client privilege.(fn11) As the California Supreme Court has noted, "'almost any act, done by the client in the sight of the attorney and during the consultation, may conceivably be done by the client as the subject of a communication.'"(fn12) The question will be whether the act "was intended to be" a communication.(fn13) If it was, the privilege applies.

The Restatement of the Law Governing Lawyers also endorses a broad construction of "communication." It extends the attorney-client privilege to include "communicative client acts."(fn14) The key inquiry is whether the act "is intended to convey information."(fn15) A client may communicate with a lawyer "through facial expressions . . . bodily movements, or gestures . . . . The privilege applies when the purpose of performing the act is to convey information to the lawyer."(fn16)

Applying the privilege to protect "communicative acts" furthers the purpose articulated by the United States Supreme Court: "[T]o encourage full and frank communication between lawyers

and their clients and thereby promote broader public interests in the observance of law and administration of justice."(fn17) Questions about the scope of the privilege should be answered in a way that furthers that goal.

However one defines "communication," the privilege applies to communications, not to the underlying facts. It does not, therefore, prevent a client from having to testify about underlying facts, except in a criminal case where a defendant has a right not to take the stand, and in cases where a witness has the right to "take the Fifth."

The privilege has limited applicability when a client furnishes evidence of a crime to the attorney or, at times, provides the information that leads to such evidence. The issue, which has not been addressed in Wyoming, was the subject of a comprehensive and often-cited opinion by the California Supreme Court.(fn18)

In People v. Meredith, a criminal defendant charged with murder and robbery told his lawyer that he had removed money from the victim's wallet and then tried to burn it, that he had only partially succeeded, and that the remains of the burnt wallet were in a trash can behind the accused's home. (fn19) The lawyer relayed the story to his investigator, and instructed him to locate and retrieve the wallet.(fn2°) That was done, and after examining the wallet, the attorney turned it over to the police.(fn21) Ultimately, the location of the wallet became an important issue in the case and the lawyer, who had been replaced, was called to testify about where the wallet had been found.(fn22) When asked that question, the attorney-client privilege was raised as an objection. The objection was overruled, and the attorney was required to answer the question.(fn23) On appeal, the issues included whether the "observation of the location of the wallet, the product of a privileged communication, finds protection under the attorney-client privilege,"(fn24) and whether the privilege protected information about the location of the wallet since it had been removed by the lawyer's investigator.

As one would expect, the privilege applies to the oral or written disclosure by a client about the existence and/or location of physical evidence of a crime.(fn25) Further, the privilege "extends to protect observations made as a consequence of protected communications."(fn26) It does not extend, however, to cover any alteration of the location or condition of the evidence. The problem is that "[w]hen defense counsel alters or removes physical evidence, he necessarily deprives the prosecution of the opportunity to observe that evidence in its original condition or location."(fn27) To extend the privilege "to bar admission of testimony concerning the original condition and location of the evidence in such a case permits the defense in effect to 'destroy' critical information."(fn28) Accordingly, "whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence . .

"29.

In addition to limiting the reach of the attorney-client privilege by allowing evidence of the location of evidence that was altered or removed, the decision in People v. Meredith is also instructive on the question of an attorney's obligation when he or she comes into possession of evidence of a crime. Whether it should be turned over to law enforcement or the prosecution is a difficult and generally unresolved issue.(fn3°) Even if such a duty exists, the evidence will be admissible, but its source will not.(fn31)

In sum, the term "communication," should be construed to include non-verbal communications, as well as observations that result from privileged communications. Observations...