Law School Case Brief
United States v. Evans - 113 F.3d 1457 (7th Cir. 1997)
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.
In early January 1996, news reports revealed that Alderman Evans had been targeted in a federal corruption investigation of City officials ("Operation Silver Shovel"). After learning that his long-time friend and occasional client had been implicated in the investigation, attorney John Holden, who is also a Chicago police officer, contacted Evans and spoke with him about Evans' interviews with FBI agents. In the aftermath of this meeting, Holden arranged for and scheduled Evans to meet with three criminal defense attorneys that Evans could explain his situation, seek legal advice, and decide which of the three attorneys, if any, to retain. On January 8, 1996, after scheduling an appointment on Evans' behalf with attorney James Koch, Holden took Evans to Koch's office where the three conferred. On cross-examination, the government brought out that Holden has known Evans for close to twenty years, that Holden is a close friend of Evans' family (and at one point dated Evans' niece), that Holden has assisted in Evans' campaigns, that Holden respects Evans tremendously and looks up to him as a father figure, and that Holden told an Assistant United States Attorney working on this case words to the effect that he loved Evans. Holden also testified on cross-examination that he understood that if the meeting with Koch were held to be unprivileged, he might have to testify against Evans at trial. On January 8, 1997, the district judge ruled from the bench that Koch's testimony concerning the conversation he had with Holden and Evans on January 8, 1996, is not privileged. Thereafter, the district court granted the government's pretrial motion in limine to admit certain testimony by attorney James Koch, which Evans asserted is protected by the attorney-client privilege.
Were the statements made by Alderman Evans in James Koch’s office protected by the attorney-client privilege when the same were made in the presence of John Holden?
The Court noted that he attorney-client privilege shields only those communications by a client to an attorney that were intended to be confidential. Thus, according to the Court, as a general matter, the attorney-client privilege will not shield from disclosure statements made by a client to his or her attorney in the presence of a third party who is not an agent of either the client or attorney. In the case at bar, the Court found that Alderman failed to carry his burden of proving that Holden’s presence was necessary to accomplish the objective of his consultation; thus, the Court concluded that Holden was present merely as a friend and a potential character witness. Accordingly, the Court concluded that the statements made by Alderman in Koch’s office could not be protected by attorney-client privilege in the presence of Holden who did not act as Alderman’s lawyer during the time in question.
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