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Law School Case Brief

Purcell v. DA for the Suffolk Dist. - 424 Mass. 109, 676 N.E.2d 436 (1997)

Rule:

A statement of an intention to commit a crime made in the course of seeking legal advice is protected by the privilege, unless the crime-fraud exception applies. That exception applies only if the client or prospective client seeks advice or assistance in furtherance of criminal conduct.

Facts:

On June 21, 1994, Joseph Tyree, who had received a court order to vacate his apartment in the Allston section of Boston, consulted the plaintiff, Jeffrey Purcell, an attorney employed by Greater Boston Legal Services, which provides representation to low income individuals in civil matters. Tyree had recently been discharged as a maintenance man at the apartment building in which his apartment was located. On the day that Tyree consulted Purcell, Purcell decided, after extensive deliberation, that he should advise appropriate authorities that Tyree might engage in conduct harmful to others. He told a Boston police lieutenant that Tyree had made threats to burn the apartment building. The next day, constables, accompanied by Boston police officers, went to evict Tyree. At the apartment building, they found incendiary materials, containers of gasoline, and several bottles with wicks attached. Smoke detectors had been disconnected, and gasoline had been poured on a hallway floor. Tyree was arrested and later indicted for attempted arson of a building. In August, 1995, the district attorney for the Suffolk district subpoenaed Purcell to testify concerning the conversation Purcell had had with Tyree on June 21, 1994. A Superior Court judge granted Purcell's motion to quash the subpoena. The trial ended in a mistrial because the jury were unable to reach a verdict. The Commonwealth decided to try Tyree again and once more sought Purcell's testimony. Another Superior Court judge concluded that Tyree's statements to Purcell were not protected by the attorney-client privilege, denied Purcell's motion to quash an anticipated subpoena, and ordered Purcell to testify. Thereafter, Purcell commenced an action against defendant district attorney in the single justice session of the Supreme Judicial Court for the County of Suffolk (Massachusetts). According to the district attorney, even if Tyree's communication with Purcell was made as part of his consultation  concerning the eviction proceeding, Tyree's communication concerning his contemplated criminal conduct is not protected by the privilege.

Issue:

Under the circumstances, was Tyree entitled to the protection of attorney-client privilege?

Answer:

Yes.

Conclusion:

The Court held that unless the crime-fraud exception applies, the attorney-client privilege should apply to communications concerning possible future, as well as past, criminal conduct, because an informed lawyer may be able to dissuade the client from improper future conduct and, if not, under the ethical rules may elect in the public interest to make a limited disclosure of the client's threatened conduct. According to the Court, it is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the seal of secrecy between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime. In this case, however, the court held that the evidence was not sufficient to warrant the finding that the client consulted the attorney for the purpose of obtaining advice in furtherance of a crime; thus, the order denying the motion to quash because the crime-fraud exception applied could not be upheld.

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