Inquiry is made as to whether statements made in confidence by a client to his attorney and later revealed to the district attorney, and also to the court, are now subject to attorney-client privilege; and, the propriety of continuing to represent the client after the district attorney states an intention to call the attorney to testify concerning the statements.
The attorney represented a client indicted on various offenses of felonious possession of controlled substances. Prior to the trial, the attorney and his client were allowed to inspect the drugs and substances confiscated from the client's vehicle. During the inspection, the attorney and client consulted privately and the client inquired if there would be a case against him if the drugs were destroyed. The attorney assured the client the State could present a case without the drugs by the testimony of witnesses who recovered and examined the drugs. After the attorney and client left the evidence room, the client was returned to his jail cell and searched. The search revealed a package containing several capsules. The authorities notified the attorney of the search and results as he was leaving the premises.
The attorney later met with the district attorney to discuss a possible plea bargain agreement. The district attorney stated an intention to call the attorney as a witness to the facts that the attorney and client had examined the drugs and a subsequent search revealed the client had possession of several capsules. In response, the attorney informed the district attorney about the client's inquiry if there would be a case if the drugs were destroyed.
Later, during pre-trial motions, the district attorney filed a motion of intent to introduce evidence to show that after indictment and during discovery, the defendant concealed and carried away certain capsules. The district attorney stated to the court an intention to call the attorney as a witness to the incident. The attorney, in response, informed the court about the client's inquiry if there would be a case if the drugs were destroyed.
The attorney now inquires if the statements by the client are subject to attorney-client privilege; and, the propriety of continuing to represent the client.
The existence of the attorney-client privilege with respect to the communication in question, considering the surrounding circumstances and subsequent developments, is a matter of law, not ethics, and is subject to judicial determination.
In the event the court determines that the statements by the client to the attorney are subject to privilege, then the attorney may proceed with representation of the client. In the event the court determines that the statements are not subject to privilege, then the attorney is prohibited from continuing to represent the client as it appears that the testimony may be prejudicial to the client. See Disciplinary Rule 5-102(B).
This 31st day of January, 1984.
G. Wilson Horde
T. Maxfield Bahner
APPROVED AND ADOPTED BY THE BOARD