Attorney Testimony On Client Threats Admissible

In an important decision on attorney-client privilege and permissible disclosure exceptions, a majority of the en banc District of Columbia Court of Appeals has held that an attorney’s testimony against his former client was properly admitted into evidence

SHANKER, Associate Judge:

Appellant Brian E. Moore twice told his attorney, John Harvey, that he was going to kill the District of Columbia Assistant Attorney General (AAG) prosecuting a criminal contempt case against him. First, Mr. Moore stated that he was going to “shoot that bitch,” adding that he in fact owned guns. Then, about two months later, and after Mr. Harvey had warned Mr. Moore that he would take future threats seriously, Mr. Moore repeatedly exclaimed that he would “bust a cap in this bitch,” again referring to the prosecutor. In response, Mr. Harvey sought to withdraw from representing Mr. Moore and, upon a court order, disclosed Mr. Moore’s threats. Mr. Harvey testified before a grand jury, which indicted Mr. Moore; and he testified again at Mr. Moore’s trial, at the conclusion of which a jury convicted Mr. Moore for threatening the AAG and obstructing justice.

Evidence

The evidence at trial supported the following. Mr. Harvey represented Mr. Moore in a criminal contempt proceeding arising out of the allegation that Mr. Moore violated a civil protective order by contacting his then-wife. On April 12, 2018, during the criminal contempt trial, the AAG asked the court to place Mr. Moore on GPS monitoring with an ankle bracelet. Mr. Harvey had previously persuaded the trial court to remove the GPS monitoring, but the AAG sought reconsideration of that ruling. The AAG’s renewed attempts to impose GPS monitoring frustrated Mr. Moore.

According to Mr. Harvey, his conversation with Mr. Moore went as follows. When they stepped into the hallway during a break in the proceedings, Mr. Moore told Mr. Harvey: “Fuck that bitch. I hate this bitch.” In Mr. Harvey’s experience—consisting of over thirty years as a criminal defense attorney—this kind of anger was normal, and he explained to Mr. Moore that the AAG was just doing

 her job. Unassuaged, Mr. Moore continued, “Man, fuck that bitch. Fuck that bitch. I’ll shoot that bitch. Fuck that bitch.” “Man, what are you talking about?” Mr. Harvey asked. Mr. Moore clarified, “That’s right, Harvey. I’ll shoot that bitch.” Growing concerned, Mr. Harvey warned, “Man, I’m taking—you starting to make me think you serious.” Mr. Moore reiterated, “God damn right, Harvey. Fuck that bitch. I’ll shoot that bitch.” In case the message was not clear, Mr. Moore added that he in fact owned guns—at least according to Mr. Harvey’s grand-jury testimony, which Mr. Harvey did not repeat at trial.

At this point, Mr. Harvey tried to withdraw from the representation. He told Mr. Moore that he could no longer “be a part of this” and was “going to have to withdraw.” “I don’t give a fuck what you do, Harvey,” answered Mr. Moore. “I don’t give a fuck.”

Mr. Harvey reached out to “Bar Counsel” and asked what he should do. According to Mr. Harvey, he learned that he was permitted to disclose the threats to the court but that the decision was up to him.

Harvey sought to withdraw without disclosure but his motion was denied

Uncertain how to proceed, Mr. Harvey spoke with Mr. Moore again. Mr. Moore recanted his earlier statements and explained that he “was just bullshitting” and “didn’t mean it.” Mr. Harvey warned that he would believe Mr. Moore if he threatened to shoot someone again. “I won’t say nothing like that again,” Mr. Moore promised. “I was just bullshitting.” Mr. Harvey continued representing Mr. Moore.

The trial paused for about two months due to scheduling issues, and when it resumed on June 29 the AAG raised new concerns about Mr. Moore and once again requested ankle monitoring. The trial court agreed to place Mr. Moore under GPS tracking to ensure his compliance with court orders. Because the proceeding wrapped up late, there was no time to fit Mr. Moore with the ankle bracelet that day. Worse still, because it was a Friday, Mr. Moore would have to be in the District on Monday morning to fit the tracker.

The situation angered Mr. Moore. He had a training seminar for a new job Monday morning in North Carolina, and he feared he would miss the training and lose the job as a result. Upon entering the hallway outside the courtroom, Mr. Moore—according to Mr. Harvey’s testimony—said: “Harvey, if I lose my job, I’m going to bust a cap in this bitch[;] I’m going to bust a cap in this bitch.” “Man, what are you doing?” asked Mr. Harvey. “Man, fuck this bitch. If I lose my job, I’m going to bust a cap in this bitch,” Mr. Moore repeated. He then made a shooting gesture, which a security camera caught. “I told you what I was going to do if you ever said something like that to me again,” warned Mr. Harvey. “Fuck her. Fuck you,” retorted Mr. Moore.

Mr. Harvey approached the court and again asked to withdraw. He told the court that he could no longer represent Mr. Moore and that, if the court ordered him to explain why, he would. The court ordered him to disclose the reason. Mr. Harvey told the court that Mr. Moore had threatened to shoot the AAG. The court directed a marshal to take Mr. Moore into custody. A few days later, despite expressing some skepticism about the sincerity of Mr. Moore’s threats, the court granted Mr. Harvey’s request to withdraw. It granted the request largely because Mr. Harvey had represented that his relationship with Mr. Moore had deteriorated to the point where he could no longer adequately represent Mr. Moore.

Harvey testified to these discussions before the grand and petit juries; Moore was convicted and sentenced to eight years in prison.

Real world consequences

As for whether attorneys will change their behavior in response to our holding, we doubt this too. Attorneys will not necessarily disclose all threatening statements made by their client in their presence. And for good reason. Facially threatening  statements a client makes in the presence of an attorney may well be idle, not objectively credible, and thus not crimes. As the division correctly observed, “when a threat is delivered only to a third party, that fact can bear on” “one’s ‘mens rea to utter the words as a threat’” or whether the threat is objectively credible. Moore, 285 A.3d at 236 n.9 (quoting Carrell, 165 A.3d at 317). We emphasize that the exception we announce today applies only when a judge preliminarily determines that a criminal threat crime (one involving serious bodily injury or death) has occurred. See In re Pub. Def. Serv., 831 A.2d at 902. Most statements, when viewed in context, will not qualify as such.

But if an attorney believes that the above standard is met, we believe that that attorney—an officer of the court—would report the threat under Rule of Professional Conduct 1.6(c) irrespective of whether the privilege applies. To be sure, their disclosure now carries a greater risk of subjecting their client to investigation and prosecution. But even if the attorney could not testify, the client would still likely face investigation and possible prosecution after the attorney reported the threat. So, the difference in attorney incentives is minimal. See Newman, 863 A.2d at 344 (Wilner, J., dissenting) (“I cannot conceive, and the Court offers no explanation, of why a lawyer who believes that a disclosure is necessary to prevent death or serious bodily harm to another will feel free to make a disclosure under Rule 1.6, knowing that, as a result, his client will almost certainly be the target of a criminal investigation, but will nonetheless be reluctant to make the disclosure because he/she may be called to testify in court.”).

Finally, the dissent’s skepticism as to whether a threats exception will improve public safety is grounded in too rosy a view of the power of disclosure alone to prevent disruption of the target’s life in response to the threat, protect the target in the event that the threatener attempts to carry out the threat, and disincentivize future threats. Law enforcement cannot serve as the targets’ personal bodyguards, and most individuals cannot afford their own private security, let alone security for their family members. The fact that law enforcement is “either investigating or pursuing charges” with respect to the threat, post dissent at 107, is likely to be of cold comfort to a threat’s target; we struggle to see how the government could obtain probable cause to arrest—let alone persuade a jury that a threat occurred—if the threat itself cannot be admitted into evidence, regardless of how dogged an investigation is conducted. And because in the absence of prosecution the issuer of the threat would face no legal consequences, that issuer would have no incentive to refrain from issuing future threats in the same manner.

Even in the absence of an attempt by the threat’s issuer to follow through on their threat, threats, once disclosed, harm their targets. By disincentivizing threats, the exception we announce prevents those harms and thereby protects public safety.

The court majority

we decline to rely on a conclusion that serious, objectively credible threats do not meet the elements of the attorney-client privilege—for example, because they necessarily are not related to the legal representation or do not seek legal advice, or because a client who utters a threat to cause death or serious bodily harm can have no reasonable expectation of confidentiality in their communications. Nor do we find it necessary to decide whether all serious threats uttered to an attorney fall under the crime/fraud exception to the privilege. Instead, we hold that a client’s commission of a new, completed, serious threat crime qualifies as an abuse of the privilege that justifies an exception to the privilege’s ordinary application.

MCLEESE, Associate Judge, concurring:

The opinion for the en banc court holds that Mr. Moore’s threats to shoot the prosecutor are not protected by the attorney-client privilege. I agree with that holding, and I join the opinion for the en banc court in full. I write separately to briefly explain an additional basis for that holding.

Reasoning

Given that defense counsel had no fiduciary duty to keep Mr. Moore’s repeated threats confidential, Mr. Moore could not reasonably have expected defense counsel to keep the threats confidential. As the trial court noted, that is particularly obvious with respect to the second set of threats, which Mr. Moore uttered even after defense counsel had informed Mr. Moore that defense counsel would disclose Mr. Moore’s threats to the court if Mr. Moore repeated them.

For the foregoing additional reasons, I conclude that Mr. Moore’s threats fall outside the scope of the attorney-client privilege.  I briefly note one further topic. In addition to their fiduciary duty of confidentiality, attorneys also have an ethical duty of confidentiality. D.C. R. Prof. Conduct 1.6. That ethical duty is also not absolute, however, and D.C. R. Prof. Conduct 1.6(c)(1) permits disclosure of client confidences and secrets “to the extent reasonably necessary . . . to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent disclosure.” We have indicated that this rule of professional responsibility “is not intended to govern or affect judicial application of the attorney-client privilege.” D.C. R. Prof. Conduct 1.6 cmt. [6]. It therefore is not strictly necessary in this case to decide whether defense counsel’s disclosure was permissible under R. 1.6(c)(1). Essentially for the reasons already stated, however, defense counsel’s disclosure in this case was in my view also clearly permissible under the Rules of Professional Conduct.

DEAHL, Associate Judge, concurring:

I agree that the attorney-client privilege does not protect the criminal threats that Brian Moore made to his attorney. I write separately first to explain why a straightforward application of the crime/fraud exception compels that result, and second to add some important caveats to the court’s alternative approach to the question at hand.

Here

Here, Harvey testified that he had heard clients make facially threatening statements about prosecutors on “maybe three or four” prior occasions in his decades-long career and never previously felt obliged to disclose them. But in this case, Harvey made a judgment that Moore’s death threats— repeated after Harvey’s warnings that he took them seriously and would disclose them if reiterated—crossed the line into true threat territory. A jury agreed with that assessment beyond a reasonable doubt, a division of this court found the evidence sufficient to support that conviction, and we have no occasion to revisit that conclusion as the en banc court.

I’m sure many defense attorneys would have made a different judgment call and chalked Moore’s comments up to venting or bluster, but the question before us is not whether Harvey acted as a model defense attorney. It is whether the attorney-client privilege protects true criminal threats uttered in the course of a representation, so that we effectively must assume Moore was reasonably likely to follow through on his death threats. Because such true threats are completed crimes, the crime/fraud exception dictates that the privilege’s protections do not extend to them.

EASTERLY, Associate Judge, with whom BECKWITH and HOWARD, Associate Judges, join, dissenting:

Evidentiary privileges, like the attorney-client privilege, exist to keep evidence out of court. By design, they counter the truth-finding function of our legal system. The attorney-client privilege has for centuries prohibited the use of attorney-client communications as evidence, despite their presumably valuable content, both because it has long been understood that regularly allowing an attorney to become a witness against their client would chill this societally valuable relationship and because, normatively, we do not want lawyers in our adversarial legal system to serve both as advocates for and witnesses against their clients. The privilege applies when an individual is communicating confidentially with their attorney to seek legal counsel. To date, the only exception this court has recognized to the privilege has been for communications that misuse the attorney-client relationship by furthering the commission of a crime.

In this case, Mr. Moore was confidentially seeking guidance from his lawyer when, in the midst of his contempt trial, he spoke to his lawyer alone in the courthouse hallway about his extreme frustration with the efforts by the prosecutor to put him on a GPS monitor and his fear of losing his job as a result. Accepting the record as it comes to this court, but see Part III.A (questioning whether counsel should have been permitted to testify in the grand jury before Mr. Moore was given the opportunity to invoke the privilege), Mr. Moore made conditional statements in the course of his venting that he would shoot the prosecutor if she didn’t stop “fucking with him” or if he lost his job. Simply by making himself available to hear what Mr. Moore had to say (the content of which counsel could not have anticipated), counsel did not help Mr. Moore commit a crime. Under the longstanding common law test employed by this court, the privilege protected the statements Mr. Moore made to his attorney, and the attorney should not have been permitted to become a witness against his client at Mr. Moore’s subsequent trial for criminal threats.

Dangers

the majority creates a never-before-seen exception to the centuries-old attorney-client privilege that carves out confidential statements, made by a client to their lawyer while seeking legal advice, that could be perceived as threats of death or serious bodily injury.

This novel exception is ill-founded. It is based partly on a misperception that lawyers who have challenging conversations with their clients are “abused” when those conversations cause any of a range of emotions and partly on the asserted concern that attorneys will be used as conduits for statements that could be perceived as threats. But having emotional and sometimes disconcerting conversations with clients is a core part of the job of a lawyer in direct client service, and to hold otherwise not only projects weakness on those lawyers, but also undermines their ability to zealously advocate for their clients and weakens the foundation of the privilege itself. Likewise, the majority fails to demonstrate how the mere possibility that the subject of a threat may later learn of the communications, against the client’s wishes, indicates that the client abused the attorney-client relationship by making those statements. Indeed, the majority does not require that the communication be disclosed by counsel, much less transmitted to the subject, before its new exception applies.

The majority’s exception is without analogue. No other jurisdiction in the country has a categorical threats exception to the attorney-client privilege.

Lastly, the majority’s threats exception portends a grave intrusion on the attorney-client relationship, if not its eventual demise. Sitting en banc, we must look beyond the facts of this case and focus on the rule that is being announced and its effect in future cases. The majority’s threats exception is ominously expansive. This exception requires nothing more of counsel than that they do their normal job of listening to their client; it does not require counsel to disclose their client’s statements, much less transmit the statements to their target. The majority’s characterization notwithstanding, the exception is not limited to the revelation of criminal threats; rather, it casts a far wider net, given the majority’s explication that a judge need only “preliminarily” determine that a criminal threat was uttered— which requires some far lesser showing than guilt beyond a reasonable doubt. Ante majority at 40. The exception has no real-time or even future public-safety objective. It does not require that anyone—the attorney who heard the statement, the party who invokes the exception, or the judge who rules on its application—actually believe the client intended to carry out the threat, and it allows for the admission of otherwise privileged statements in all types of cases, not just criminal cases.

Thus, as crafted, the majority’s new exception creates a pernicious tool for government and private lawyers to exploit confidential communications between opposing counsel and their clients. With such a rule, the chilling of attorney-client communications, in particular between attorneys and clients seeking direct legal services in the matters that consume the District’s courts and agencies, is inevitable. Any good lawyer will caution their clients to regulate their speech. In so doing, the lawyer will send the now-accurate message that their conversations are not truly protected and that clients should think twice about revealing their thoughts and feelings to counsel.

Crime fraud exception

In sum, the concurrence’s arguments notwithstanding, Mr. Moore’s statements to Mr. Harvey do not fall under the crime-fraud exception as recognized by In re PDS. And to modify that exception to encompass Mr. Moore’s statements would be inconsistent with the broader principle espoused in In re PDS that the attorney-client privilege “should be construed so as to effectuate and be ‘consistent with [its] purposes.’” Id. at 908 (quoting Swidler & Berlin, 524 U.S. at 409-10). It does not align with the purposes of the attorney-client privilege to except from its protection any communication made in the course of seeking legal advice that completes a crime simply because the attorney heard it. Rather, it fully serves the purposes of the attorney-client privilege to apply it to communications that are themselves crimes, so long as the attorney does not do or say anything to advance the client’s criminal aims.

The majority’s threats exception

encountering unpleasant information or strong emotions and managing one’s own reactions thereto is simply part of the job of engaging in direct client representation. Such conversations are not only to be tolerated but are essential to an effective attorney-client relationship. Thus, to say that such conversations are an abuse of the attorney-client relationship reveals a complete misunderstanding of direct client representation and the general caliber of the attorneys who perform this work. As a result, it poses an existential threat to the attorney-client privilege in our jurisdiction. If future en banc courts employ this understanding of abuse, the privilege will be swallowed by its exceptions.

The facts of this case reinforce the destructive breadth of the majority’s “abuse of the relationship” rationale. There is no question in this case that Mr. Harvey did not like what Mr. Moore said about the prosecutor in their conversations, but there is no evidence on this record that Mr. Moore’s statements ever caused Mr. Harvey to be fearful of or intimidated by Mr. Moore. And, as previously noted, Mr. Harvey never made a Rule 1.6(c) disclosure; rather, he repeatedly stated that he could not, even though Bar ethics counsel had told him “what [his] options were” under the ethical rules, i.e., that he could make a disclosure if he reasonably believed that Mr. Moore posed a threat of death or serious bodily harm. See ante majority at 4. Instead, the record indicates that Mr. Harvey’s overriding emotion was anger, in particular about how Mr. Moore was talking about the prosecutor, a person he considered not just a “colleague” but a “friend.” Mr. Harvey told the trial judge that Mr. Moore made his “skin . . . boil”; that Mr. Moore “likes to cross certain lines that men don’t cross”; and that he had responded to Mr. Moore in a “very unprofessional” manner. Likewise, Mr. Harvey told the grand jury that he had “us[ed] choice language . . . [with Mr. Moore] because of the way [Mr. Moore] was describing” the prosecutor. No doubt this is why the majority throws in “outrage” and its vague catchall “other strong emotion” to the possible reactions that might render an attorney-client communication an abuse. Ante majority at 20, 23. But to say that any conversation in which an attorney is offended (even strongly so) by what their client says to them abuses the relationship underestimates the attorneys who engage in direct client representation and undermines the services they provide. It robs counsel of their professionalism (which Mr. Harvey concededly abandoned), and it empowers counsel, motivated by anger, to weaponize confidential information against their clients.

The dissent extensively surveys other jurisdictions and concludes

That the majority and the dissent have been unable to find a single jurisdiction that has created the exception the majority creates with this opinion firmly refutes the majority’s claim that it breaks “little new ground.” Ante majority at 26. In all the centuries that the attorney-client privilege has existed in the United States, no jurisdiction has ever considered, much less endorsed, the threats exception that the majority creates.

Dangers of majority approach

The majority’s new threats exception is not just ill-conceived and unprecedented. It will have far-reaching consequences for the contours and application of the privilege. Although the majority presents the exception as a modest carveout from otherwise privileged communications, it is anything but. As a consequence, its chilling effect will be significant.

Sometimes the client is venting not threatening

The majority’s global response to these concerns about the breadth of its newfound exception—namely, that the same critiques could be leveled against the crime-fraud exception, ante majority at 33—is unpersuasive. The majority fails to grapple with the unique difficulty of discerning true criminal threats from angry venting. The majority also ignores the fact that the crime-fraud exception has a builtin requirement that raises the bar for when it applies; as noted above, it actually requires counsel to assist their client’s criminal scheme in some way, see supra Part III.C., unlike the majority’s new threats exception, which requires nothing more of counsel than to serve as passive hearer and dismisses the possibility that counsel might dissuade their client from acting on the threat. In short, the majority fails to consider its novel threats exception on its own terms.

Lastly, the limitation that the majority imposes (at least for now) on its exception—requiring that the threat relate to death or serious bodily injury—does not address these concerns about its breadth. It is not a real limitation at all, because the majority simply “leave[s] for another day whether to exempt other crimes and lesser threats from the attorney-client privilege.” Ante majority at 32.

The dissent concludes with a discussion of the “chilling effect” of the majority rationale

The attorney-client privilege has served as a foundation of our adversarial justice system for centuries precisely because it has functional utility and normative value. Until now, no jurisdiction has ever determined that a categorical threats exception to statements that otherwise fall within the privilege’s exception is needed. The dissent disagrees with the majority that Mr. Moore’s case demonstrates that our jurisdiction needs such an exception now. We would heed the Supreme Court’s admonition not to endorse a “no harm in one more exception rationale [that] could contribute to the general erosion of the privilege, without reference to common-law principles of reason and experience.” Swidler & Berlin, 524 U.S. at 410 (quotation marks omitted).

For these reasons, we respectfully dissent.

The then Maryland Court of Appeals (renamed as the Maryland Supreme Court) reached a contrary result in this case.

As someone who began his career as an assistant federal public defender followed by a number of years as a private criminal defense attorney, I am of the view that the dissent got it right. (Mike Frisch)