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Raleigh, N.C.-Dead men tell no tales, but from now on in North Carolina, their lawyers might have to. In a unanimous decision that is drawing national attention, the North Carolina Supreme Court has ordered a Raleigh criminal defense lawyer to tell a trial judge what his client-implicated in an apparent homicide-told the lawyer before killing himself. The judge is to decide whether the information, to be provided by criminal defense lawyer Rick Gammon, must remain confidential under attorney-client privilege or must be given to authorities investigating the December 2000 arsenic poisoning death of medical researcher Eric D. Miller. “While the attorney-client privilege is an essential component in our system of justice, many ethical and moral dilemmas exist as a result of this limitation on finding the truth,” the court wrote. In re The Investigation of the Death of Eric DeWayne Miller, No. 303PA02. Investigators allege that Derril H. Willard, 37, and Miller’s wife, Ann, now 33, were having an extramarital affair and that both had access to an arsenic compound at GlaxoSmithKline PLC, a drug company in Research Triangle Park, N.C., where they worked. Raleigh police are investigating Eric Miller’s death as a homicide but haven’t charged anyone. They say they think Gammon’s knowledge could help them solve the case. Gammon, 49, of Raleigh’s DeMent, Askew, Gammon & DeMent, has refused so far to say what if anything Willard told him about Eric Miller’s death. He is considering a federal appeal on Sixth Amendment right-to-counsel grounds and said he might go to jail instead of breach the confidence of his late client. “The attorney-client privilege is the foundation of the attorney-client relationship,” said Gammon, chairman of the North Carolina State Bar’s disciplinary committee. “Unless clients feel that they can come in and talk to me in absolute secrecy, then it makes it difficult to represent them,” he said. “It’s sort of like going to a doctor and telling the doctor half the story, and then expecting the doctor to evaluate your illness.” Foster case echoes The state Supreme Court’s ruling builds on-but departs from-the U.S. Supreme Court’s 1998 decision in Swidler & Berlin v. United States. In that case, the high court rejected Whitewater Independent Counsel Kenneth Starr’s attempt to force a lawyer for former White House counsel Vince Foster Jr. to say what Foster told the lawyer about Bill and Hillary Clinton’s Whitewater business dealings nine days before Foster killed himself. The Supreme Court ruled that in federal courts confidentiality survives the death of the client, and no balancing test could be applied to determine whether the interest in pursuing a prosecution outweighed the privilege. The North Carolina Supreme Court agreed with the U.S. Supreme Court and at least eight other states that the attorney-client privilege survives the client’s death, but said it does not apply to information about a third party. And if the information concerns the client, the privilege can be overcome if revelation doesn’t expose the client to criminal prosecution, open him or his estate to civil liability or hurt his reputation. Trial courts “should carefully analyze each individual factual situation on a case-by-case basis when determining whether to permit disclosure of information asserted to be privileged,” the state high court ruled. The North Carolina Supreme Court also declined to follow the lead of 23 states that allow an estate executor to waive attorney-client privilege. Willard’s widow, Yvette, had offered to waive the privilege for her husband. Under the ruling, the party claiming the privilege appears to have the burden of persuading trial judges not to order disclosure. That and the ruling’s unpredictable applicability to criminal and civil cases have many North Carolina lawyers worried. “I think they’ve disintegrated the privilege,” said Rosemary Godwin, a Raleigh-based criminal defense solo practitioner. “They say this is an extraordinary circumstance. But why? Because they say so? Can any DA declare something extraordinary?” Eric Miller, 30, died on Dec. 2, 2000, after weeks of illness that an autopsy attributed to arsenic poisoning. Investigators with the Raleigh Police Department say that on the first night Miller became ill, Willard had bought and poured a beer for him, and Miller later complained that it tasted bitter. They allege Ann Miller prepared a meal for her husband the night he last became sick, three days before he died. In January 2001, before investigators talked to Willard and after he met with Gammon, Willard shot himself. A suicide note denied that he had killed Eric Miller, authorities said. Willard’s widow, Yvette, told investigators that her husband had confided in her that Gammon told him he could be charged with attempted murder. At the request of the local district attorney, Senior Resident Superior Court Judge Don Stephens ordered Gammon to file a sealed affidavit stating what Willard had told him. The judge would review it in camera and decide what was disclosable. Gammon refused and appealed. “This is a novel ruling,” said William Jeffress Jr., a criminal defense lawyer and legal ethicist in Baker Botts’ Washington office who argued against disclosure in the Foster case. “It opens the door to inconsistent determinations by judges about whether something should be disclosed, and it undermines the confidentiality the attorney-client privilege is designed to protect. It makes it very difficult to give assurances of confidentiality.” Colon Willoughby, the district attorney in Raleigh who took Gammon to court, said the ruling won’t apply to many cases, and it was correct. The public’s interest in solving a homicide outweighs a dead man’s interest in secrecy, he said. Public confidence “The purpose of having courts is the ascertainment of the truth,” Willoughby said. “If we’re going to keep public confidence in our legal system, then we have to have a vehicle to find the truth and protect society. To have done anything less, I think, would have undermined public confidence in the courts.” Willoughby said that had Willard lived, he could have been compelled to testify, so the information would have been available to prosecutors. Willoughby acknowledged that the same principle in favor of disclosure could be argued in other cases not involving the death of the client, such as when the client is in a coma, has disappeared or is incompetent or unavailable.

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