You represent an unstable client. Choose your area of practice – It happens regardless of field. During the course of a meeting, the client makes threatening statements, which you take seriously: Maybe it’s a client who has lost a civil case and is furious with the judge, who the client thinks is biased. Maybe it’s a former employee who has been fired, unfairly he thinks. These situations pose issues involving tension between the ethical duty of confidentiality and evidentiary attorney-client privilege. See Nathan M. Crystal, Confidentiality, Privilege, and Work Product: Some Important Differences, 25 S. Carolina Lawyer 9 (2013).
In United States v. Ivers, 967 F.3d 709 (8th Cir. 2020),[1] defendant Ivers, who was represented pro se, had lost a civil case against an insurance company. In the course of this case, Ivers sent a packet of papers to the judge containing abusive language, including references to himself as a dangerous person. The judge referred the matter to the United States Marshalls Service; a marshall investigated the matter, met with Ivers, and warned him that sending threatening communications could be a crime. (Ivers had previously been convicted in state court for threatening a state judge in a separate civil action.)
Ivers later filed a second action against the insurance company. The magistrate judge to whom the case was assigned, found that the complaint did not state a claim for relief, but referred the matter to the District of Minnesota Pro Se Project, which matches litigants with volunteer attorneys, to help him file an amended complaint. Ivers was later matched with two attorneys in a law firm. They determined that Ivers did not have a claim, and they scheduled a call with Ivers to inform him they would not be taking the case. In the first part of the call lasting approximately 30 minutes, the attorneys explained to Ivers why he did not have a case based on the rulings of the court in his prior litigation against the insurance company. As they began discussing the judge’s rulings in the prior case, Ivers became very angry, started to yell, and used profane language. In his rant he said “You don’t know the 50 different ways I planned to kill her.” The attorneys did not speak during Ivers’ tirade, and when he stopped they concluded the call. Both of the attorneys were frightened by the call, and one later described Ivers as making a “death threat” against the judge. The attorneys later informed the coordinator of the pro se project, who informed the district judge. Two US marshals went to speak to Ivers but he refused to talk with them and remained belligerent. Subsequently, Ivers was indicted for threatening to murder a federal judge. At trial he moved to exclude evidence of any statements he had made to his attorneys, but the district court admitted the testimony by the attorneys because the threat statements could be separated from legal advice.
The Eighth Circuit affirmed. After recognizing the importance of the attorney-client privilege to the administration of justice by encouraging full and frank communication between lawyer and client, the court also noted that privileges constitute an exception to the general principle that relevant evidence is admissible and should not be “lightly created or expansively construed, for they are in derogation of the search for truth.” Accordingly, the court held that the privilege should be narrowly construed and applied only when necessary. In this case, the court held that the threat statements could be separated from the rest of Ivers’ communications with his attorneys, and such statements were not privileged because they did not involve the seeking or giving of legal advice. The court relied on a number of authorities, especially United States v. Alexander, 287 F.3d 811 (9th Cir. 2002) (attorney’s testimony regarding threats by client to harm attorney and others was not subject to the attorney-client privilege because the client was not seeking legal advice).
Read more here: Nathan Crystal, Client Threats and the Attorney-Client Privilege, South Carolina Lawyer 15 (May 2021)
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[1] The author supported an amicus brief in the case authored by Professor William Janssen of the Charleston Law School and Richard Gershon, Professor of Law at the University of Mississippi School of Law, and former Dean at Charleston and Mississippi.