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In re A Grand Jury Investigation - 453 Mass. 453, 902 N.E.2d 929 (2009)

Rule:

If a lawyer suspects that a client intends to act on an expressed intent to commit a crime, the lawyer may attempt to dissuade the client from such action, and failing that, may make a limited disclosure to protect the likely targets. Requiring the privilege to yield for purposes of a criminal prosecution would not only hamper attorney-client discourse, but also would discourage lawyers from exercising their discretion to make such disclosures, and thereby frustrate the beneficial public purpose underpinning the discretionary disclosure provision of Mass. R. Prof. C. 1.6. Furthermore, any test to ascertain the germaneness of an ostensibly threatening communication on a case-by-case basis would make the privilege's applicability uncertain, rendering the privilege little better than no privilege. 

Facts:

An attorney was representing Michael Moe, a father, in a care and protection proceeding in the Juvenile Court. Two days after an adverse ruling by a juvenile court judge, the client left six messages on the attorney's answering machine threatening to harm the judge and others. During the following week, after observing that the client had become more and more angry, the attorney filed a motion to withdraw as client's counsel, which was allowed. Thereafter, concerned for the safety of the judge and her family, the attorney disclosed the substance of the messages to the judge. However, he declined to sign a written statement. A complaint was subsequently issued against the client, grand jury proceedings were initiated, and the attorney was subpoenaed to appear before the grand jury. The attorney then filed a motion to quash the summons to appear before a grand jury, which was denied by the court. 

Issue:

Does attorney-client privilege apply where a client leaves messages on his counsel's telephone answering machine threatening to harm others and the attorney discloses those communications in order to protect those threatened?

Answer:

Yes

Conclusion:

The supreme judicial court found that the telephone messages were protected by attorney-client privilege. The court noted that the client was allowed to express frustration and dissatisfaction with the legal system and its participants to the attorney. The attorney could, consistent with Mass. R. Prof. C. 1.6, disclose the substance of the client's messages. However, because the crime-fraud exception in Rule 1.6 did not apply, the client's communications were made in furtherance of the rendition of legal services. The case was remanded for further proceedings.

 

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