Privilege
Case Analysis
Jan.
29, 2007
The
court’s holding in this case should be easily distinguishable
in any similar case, because of one short sentence in footnote
two of the opinion: “The record does not indicate whether
Fox’s initial conversations with Lamon and Isaf were authorized
by Jung.”
The
statement is astounding; assuming that the statements were actually
made, given their nature, either the defendant’s attorney
is patently unfit to practice law, or the defendant waived the
attorney-client privilege. The latter is far more likely.
On
four separate occasions, according to the witnesses, Jung’s
attorney revealed to them that Jung had admitted to him that he
had defrauded the investors. Such a strategy almost certainly
was authorized by Jung.
The
district court in this case held that the statements were not
protected by the attorney-client privilege at all, so a hearing
on whether the privilege was waived would have been superfluous
under the circumstances.
Nevertheless,
this case demonstrates why findings of fact should still be made
on waiver, even when a court finds that no privilege exists. As
noted, had there been a record made on the issue, it is highly
probable that waiver would have been found, or that Jung did not
intend the statements to be privileged in the first place.
Here,
the Seventh Circuit found the error harmless in any event. In
many cases, however, the admission of such damning statements
will not be harmless. The case would then have to go back to the
district court for a determination of waiver. It would be far
more efficient to make a finding of fact on waiver in the first
instance, even when the district court finds that no privilege
exists.
Another
troublesome aspect of the decision is the following statement
by the court, “As the government acknowledges in its brief,
‘Fox’s statements served one purpose — that being
to notify victims about the situation on behalf of the defendant
as part of a strategy to be cooperative.’”
The
court interprets this as grounds to distinguish U.S. v. Harris,
914 F.2d 927 (7th Cir. 1990), and U.S. v. Sanders, 979 F.2d 87
(7th Cir. 1992). However, on its face, the government’s argument
appears to be that the statements are not privileged, because
Jung authorized Fox to pursue a cooperative strategy that included
admitting wrongdoing. That would indicate that, even if there
was a privilege, it was waived.
Also
troublesome is that the court places significance on the fact
that the statements attributed to Fox were made more than five
years before the criminal trial.
Pursuant
to FRE 401(4), statements by counsel to a prosecutor in the course
of plea negotiations are inadmissible, but statements during pre-charging
investigation can be admitted. By analogy, the fact the statements
were made long ago, before any civil or criminal proceedings were
pending, should weigh in favor of admitting the statements, not
against.
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David
Ziemer can be reached by email.
