Rule 502. Lawyer-Client Privilege

  1. militarydefenselawyers293An attorney-client relationship is created when an individual seeks and receives professional legal service from an attorney. In addition, there must be an acceptance of the attorney by the client and an acceptance of the client by the attorney before the relationship is established.
  2. This privilege may be claimed by the client, or the lawyer on the client’s behalf.
    However, Rule 502(d)(1) removes the privilege with respect to future crimes, as does 502(d)(3) with regard to breach of duty by lawyer or client, etc. United States v. Smith, 33 M.J. 527 (A.C.M.R. 1991).
  3. Waiver is examined strictly. In United States v. Marcum, 60 M.J. 198 (2004), the
    appellant went AWOL after findings but before sentencing. His defense counsel
    used a 20-page document the appellant had prepared for use at trial as an
    unsworn statement on sentencing. The document contained unflattering
    observations about several of the victims involved in the case, and the trial
    counsel capitalized on those observations in his sentencing argument. The
    CAAF held that the right to introduce an unsworn statement is personal to the
    accused, and in the absence of affirmative evidence of waiver, the evidence was
    admitted in violation of the attorney-client privilege.
  4. Remedy for breach. In United States v. Pinson, 57 M.J. 489 (2002), the CAAF
    held that when the actions of the government breached the attorney-client
    relationship between the accused and the defense counsel it may warrant reversal
    if it impacted the attorney’s performance or resulted in the disclosure of
    privileged information at the time of trial. The CAAF identified the following
    factors when making that determination: (1) whether an informant testified at the
    accused’s trial as to the conversation between the accused and his attorney; (2)
    whether the prosecution’s evidence originated in the conversations; (3) whether
    the overheard conversation was used in any other way to the substantial
    detriment of the accused; or (4) whether the prosecution learned from the
    informant the details of the conversations about trial preparations. Based upon
    these factors the court concluded no harm to the defense and affirmed the case.

This privilege may be claimed by the client

Waiver is examined strictly