Rule 502. Lawyer-Client Privilege
- An 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.
- 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).
- 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.
- 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.