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There is a split in authority as to whether a confidential communication by a client to a lawyer, to obtain the lawyer’s advice with respect to a future nonconfidential communication by the client or by the lawyer to a third party lacks the intent-to-preserve confidentiality that is necessary for protection by the attorney-client privilege. See, e.g., 1 Kenneth S. Broun (ed.), McCormick on Evidence � 91, at 408-09 (6th ed. 2006). Rejecting protection of such communications is contrary to the purpose of the privilege: to encourage clients to seek the advice of lawyers and to provide their lawyers the information the lawyers need to give sound advice. See, e.g., Upjohn Co. v. U.S., 449 U.S. 383 (1981). Clients seek, and need to seek, the advice of lawyers on all manner of planned communications to third parties � e.g., contract language to be proposed to a counterparty; securities filings and other submissions to governmental agencies; threats, and responses to threats, of legal action; pleadings in litigation; and preparation for testimony at, and other aspects of, a civil or criminal trial or judicial, administrative or legislative hearing. In such situations, clients expect their communications with their lawyers to be, and to remain, confidential, even though the principal result of the communications will be nonconfidential communications to third parties. Lawyers are sought as advisers � not messengers Generally, in consulting lawyers about prospective statements to third parties, clients seek the services of the lawyers not as messengers but as advisers on the necessity, desirability, content, context, timing and/or other aspects of the prospective statement. Where a lawyer serves solely as a messenger, a claim of privilege should be rejected not because the client lacks the requisite intent to preserve confidentiality, but because the client is not seeking, and the lawyer is not providing, any legal service. As to confidentiality, the relevant intent ought to be the client’s intent with respect to the attorney-client communications, not the client’s intent with respect to communications with third parties. If lawyers had to tell clients that the communications between them in such circumstances could not be kept confidential, much of the important, socially beneficial work of lawyers could not properly be done. In Haley v. Maryland, No. 36, slip op. (Md. Mar. 21, 2007), available at www.courts.state.md.us/opinions/coa/2007/36a06.pdf, the Maryland Court of Appeals held privileged both the content and the timing of a criminal defendant’s communications to his lawyer to help in preparation of a defense at a criminal trial. At about 2:15 a.m. on Aug. 1, 2003, police officer Nicholas Bingham received a report of an in-progress carjacking. Approaching the scene, Bingham saw a car that matched the description in the report. He pursued it for several blocks, but lost it when it turned off the road and crashed into some trees. When he reached the car, it was empty. A few hours later, he received a tip that the carjacker was near the crash site. Bingham returned to the area and arrested Terry Haley, who was walking on the street and wearing a distinctly colored shirt that matched the one the officer had seen on the driver of the car he had followed. Haley was charged with robbery and other offenses. At the motions hearing the day before trial, Haley said he wanted to discharge his lawyer. The court ordered a recess to permit Haley and his lawyer to talk. After the recess, Haley said he wanted to continue with the lawyer. At trial the next day, the lawyer asked that the jury view the interior of the home of the complaining witness, or that a defense investigator be permitted to videotape or photograph it. In explaining his late request, the lawyer, referring to Haley, said: “There was information that he provided to me yesterday, and once I received that information, I acted on it as diligently as I possibly could.” Slip op. at 12 (emphasis omitted). The court reserved its ruling. The next day, in support of the pending motion and a further motion to substitute one of his investigators as a witness, the defense counsel said of Haley: “He relayed information to me about things that were in the house and also � let me � [the complainant] has a dog. Mr. Haley described it as a miniature collie.” Id. The counsel also said, “He relayed the information. I’m telling you as an officer of the Court I had no idea what he had and I haven’t spoken to Mr. Haley today. I hadn’t spoken to him yesterday before I got this information at about right after we left your Court at whatever time it was, like 4:20 in the afternoon.” Id. at 13 (emphasis omitted). At the trial, the complainant and Bingham identified Haley as the carjacker. The defense counsel questioned the complainant about his residence and his dog. Haley testified that he and the complainant had dated off and on for more than a year; that on Aug. 1, 2003, they had gotten drunk and high together and then had gone in the complainant’s car, with Haley driving, to look for an open bar; that they had argued, that the complainant had left the car to catch a taxi; and that Haley had driven off. Haley testified that, due to the drugs he had consumed, he did not remember being pursued by Bingham, the crash or leaving the complainant’s car. He said that he did remember being arrested. To support his testimony that he had a relationship with the complainant, Haley described the outside of the complainant’s house, items inside the house and the complainant’s dog. During the cross-examination of Haley, the trial court overruled objections to questions intended to probe when Haley had first told the defense counsel about his asserted relationship with the complainant. One such question was: “Isn’t it true, Mr. Haley, that all this information about the house and everything like that you never brought up any of that information with your attorney until 4:30 yesterday afternoon?” Id. at 15 (emphasis omitted). Haley was convicted, and sentenced to imprisonment for 15 years. Maryland’s highest court finds privilege in Haley case The Maryland Court of Special Appeals, the intermediate appellate court, affirmed the conviction in an unreported opinion. It upheld the questions objected to on the ground that the information conveyed by Haley to his lawyer was ” ‘intended to be disclosed to third parties.’ ” Id. at 17. The Court of Appeals, Maryland’s highest court, held that issues relating to whether defense counsel’s statements to the court could or did waive the privilege were not before it because the state had not raised them in a cross-petition for certiorari. On the merits, the Maryland high court held flatly that “Haley’s communications to his lawyer, and the timing of when he told the attorney the critical information, fall within the attorney-client privilege.” Id. at 23. It held that Haley’s testifying (i.e., his disclosing to third parties some of the information he provided to counsel) did not waive the privilege. (The privilege protects communications, not facts or information. Therefore, a client’s testimony about facts does not waive the privilege attaching to communications.) The court also rejected the state’s argument that the questions objected to related only to the timing of attorney-client communications, not their content. It held that they related to both. The questioning was an attempt “to discredit petitioner’s testimony and to convince the jury that petitioner’s defense was an afterthought or manufactured on the eve of trial. It was not the proper subject of cross-examination and put the credibility of petitioner in issue based on what and when he told his attorney . . . .[T]he improper questions were clearly prejudicial.” Id. at 25. Ruling does suggest some cautionary points for counsel Despite its vindication of the claim of privilege, the decision also suggests some cautionary points for counsel. First, the defense counsel’s statements to the court in defense of the timing of his motions created a risk of waiver by referring to the content and timing of attorney-client communications. Any such reference should be avoided if possible, and, if made, should be made only with great care to minimize any disclosure of privileged material. Second, while being cross-examined, Haley testified about some of the content of his conversations with defense counsel, either without an objection or before an objection could be made. A lawyer should caution a client who is going to testify to pause before answering questions during cross-examination, to allow time for an objection, especially when questioning turns to such a sensitive area as attorney-client communications, and to avoid any gratuitous reference to any such communication (as distinct from facts communicated). Finally, the opportunity for the state to suggest recent fabrication resulted from the lateness of Haley’s disclosure of his potential defense to his counsel. The court’s opinion does not state how long counsel had had the case, what the course of interactions between lawyer and client had been prior to the day before trial, or what had led to Haley’s expression of dissatisfaction the day before trial. Obviously, had counsel obtained Haley’s version of events earlier, the issue favorably decided by the Maryland Court of Appeals might have been avoided altogether. Richard M. Cooper is a partner at Williams & Connolly in Washington. He can be reached via e-mail at [email protected].

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