United States v. Bernard - 877 F.2d 1463 (10th Cir. 1989)

Rule:

Any voluntary disclosure by the client is inconsistent with the attorney-client relationship and waives the privilege.

Facts:

Carroll Bernard sought review of the judgment entered following his conviction of 62 criminal violations including conspiracy, in violation of 18 U.S.C.S. § 371; bank fraud, in violation of 18 U.S.C.S. § 1344; and 60 counts of making false entries as a bank officer, in violation of 18 U.S.C.S. § 1005. Bernard raised four issues on review, three of which the court disposed of in a similar appeal by a co-defendant, so the court only addressed the issue of waiver of attorney-client privilege. At trial, a witness testified that Bernard had told him that he had verified with an attorney that a certain nominee loan was legal. Bernard did not object to the testimony. That attorney was later called and his testimony admitted, the court ruling that any attorney-client privilege had been waived. Bernard argued it was error for the trial court to deem the privilege waived by his failure to object to the first witnesses' statement. 

Issue:

Was Bernard’s contention that it was an error for the trial court to deem the attorney-client privilege waived by his failure to object to the first witnesses' statement meritorious?

Answer:

No.

Conclusion:

The court affirmed the conviction, stating that it was not the failure to object that had waived the privilege, it was the disclosure of the confidential attorney communication to the witness in the first place that constituted a waiver.