10.09. Reading: Purcell v. District Attorney for Suffolk District, 676 N.E.2d 436 (Mass. 1997)

Reading Guide

Preparing for the Reading:
This case introduces the lawyer’s ethical duty to clients. Take a look at Rule 1.6 of the Rules of Professional Conduct before you read the case so you can start to think about the difference between these two doctrines of confidentiality.

Issues:
– Did the lawyer violate the ethical duty to his client because of his disclosure to authorities?
– Was the conversation with the attorney protected by the attorney-client privilege? Go through the elements and see what you think.
– What is the crime-fraud exception to the attorney-client privilege? Is it applicable here? Why or why not?
– What is the consequence of the underlying arson case for the holding here?

Purcell v. District Attorney for the Suffolk District

Supreme Judicial Court of Massachusetts, 1997
676 N.E.2d 436

Before WILKINS, C.J., and ABRAMS, LYNCH, O’CONNOR, GREANEY and FRIED, JJ.

WILKINS, Chief Justice.

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 W. 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.

[The Attorney is Subpoenaed regarding conversation with Client]

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 was 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. …

[As a matter of ethics – was it appropriate for Purcell to disclose to authorities?]

There is no question before this court, directly or indirectly, concerning the ethical propriety of Purcell’s disclosure to the police that Tyree might engage in conduct that would be harmful to others. As bar counsel agreed in a memorandum submitted to the single justice, this court’s disciplinary rules regulating the practice of law authorized Purcell to reveal to the police “[t]he intention of his client to commit a crime and the information necessary to prevent the crime.” S.J.C. Rule 3:07, Canon 4, DR 4-101(C) (3), as appearing in 382 Mass. 778 (1981)[1].  The fact that the disciplinary code permitted Purcell to make the disclosure tells us nothing about the admissibility of the information that Purcell disclosed.

[As a matter of evidence – could Purcell be forced to disclose the conversation?]

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The attorney-client privilege is founded on the necessity that a client be free to reveal information to an attorney, without fear of its disclosure, in order to obtain informed legal advice. It is a principle of long standing. The debate here is whether Tyree is entitled to the protection of the attorney-client privilege in the circumstances.

The district attorney announces the issue in his brief to be whether a crime-fraud exception to the testimonial privilege applies in this case. He asserts that, 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. We shall first consider the case on the assumption that Tyree’s statements to Purcell are protected by the attorney-client privilege unless the crime-fraud exception applies.

“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” (citation omitted). United States v. Zolin, 491 U.S. 554 (1989). There is no public interest in the preservation of the secrecy of that kind of communication.

Our cases have not defined a crime-fraud exception to the attorney-client privilege with any precision. In Matter of John Doe Grand Jury Investigation, the court stated that there was “no legitimate interest of a client and no public interest would be served by a rule that would preserve the secrecy of” a conversation between attorney and client in a conference related to the possible future defrauding of an insurance company. We cited Commonwealth v. Dyer . . ., in which we said that “[t]here is no privilege between attorney and client where the conferences concern the proposed commission of a crime by the client.”  The cases cited in our Dyer opinion and the facts of that case-the attorney was alleged to be part of the conspiracy-demonstrate that the exception asserted concerned conferences in which the attorney’s advice was sought in furtherance of a crime or to obtain advice or assistance with respect to criminal activity.

We, therefore, accept the general principle of a crime-fraud exception. The Proposed Massachusetts Rules of Evidence adequately define the crime-fraud exception to the lawyer-client privilege set forth in rule 502(d) (1) as follows: “If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” … The applicability of the exception, like the existence of the privilege, is a question of fact for the judge.

***

In this case, in deciding whether to conduct a discretionary in camera review of the substance of the conversation concerning arson between Tyree and Purcell, the judge would have evidence tending to show that Tyree discussed a future crime with Purcell and that thereafter Tyree actively prepared to commit that crime. Without this evidence, the crime of arson would appear to have no apparent connection with Tyree’s eviction proceeding and Purcell’s representation of Tyree. …. The evidence in this case, however, was not sufficient to warrant the judge’s finding that Tyree consulted Purcell for the purpose of obtaining advice in furtherance of a crime. Therefore, the order denying the motion to quash because the crime-fraud exception applied cannot be upheld.

There is a consideration in this case that does not appear in other cases that we have seen concerning the attorney-client privilege. The testimony that the prosecution seeks from Purcell is available only because Purcell reflectively made a disclosure, relying on this court’s disciplinary rule which permitted him to do so. Purcell was under no ethical duty to disclose Tyree’s intention to commit a crime. He did so to protect the lives and property of others, a purpose that underlies a lawyer’s discretionary right stated in the disciplinary rule. The limited facts in the record strongly suggest that Purcell’s disclosures to the police served the beneficial public purpose on which the disciplinary rule was based.

We must be cautious in permitting the use of client communications that a lawyer has revealed only because of a threat to others. Lawyers will be reluctant to come forward if they know that the information that they disclose may lead to adverse consequences to their clients. A practice of the use of such disclosures might prompt a lawyer to warn a client in advance that the disclosure of certain information may not be held confidential, thereby chilling free discourse between lawyer and client and reducing the prospect that the lawyer will learn of a serious threat to the well-being of others. To best promote the purposes of the attorney-client privilege, the crime-fraud exception should apply only if the communication seeks assistance in or furtherance of future criminal conduct. When the opponent of the privilege argues that the communication itself may show that the exception applies and seeks its disclosure in camera, the judge, in the exercise of discretion on the question whether to have an in camera proceeding, should consider if the public interest is served by disclosure, even in camera, of a communication whose existence is known only because the lawyer acted against his client’s interests under the authority of a disciplinary rule. The facts of each situation must be considered.

[But wait – was this communication protected by the attorney client privilege at all?]

It might seem that this opinion is in a posture to conclude by stating that the order denying the motion to quash any subpoena to testify is vacated and the matter is to be remanded for further proceedings concerning the application of the crime-fraud exception. However, the district attorney’s brief appears to abandon its earlier concession that all communications between Tyree and Purcell should be treated as protected by the attorney-client privilege unless the crime-fraud exception applies. The question whether the attorney-client privilege is involved at all will be open on remand. We, therefore, discuss the issue.

The attorney-client privilege applies only when the client’s communication was for the purpose of facilitating the rendition of legal services. See Rule 502(b) of the Proposed Massachusetts Rules of Evidence; …. The burden of proving that the attorney-client privilege applies to a communication rests on the party asserting the privilege. …. The motion judge did not pass on the question whether the attorney-client privilege applied to the communication at all but rather went directly to the issue of the crime-fraud exception, although not using that phrase.

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. It is agreed that Tyree consulted Purcell concerning his impending eviction. Purcell is a member of the bar, and Tyree either was or sought to become Purcell’s client. The serious question concerning the application of the privilege is whether Tyree informed Purcell of the fact of his intention to commit arson for the purpose of receiving legal advice or assistance in furtherance of criminal conduct. Purcell’s presentation of the circumstances in which Tyree’s statements were made is likely to be the only evidence presented.

The attorney-client privilege “is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.” …. 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.

A judgment should be entered in the county court ordering that the order denying the motion to quash any subpoena issued to Purcell to testify at Tyree’s trial is vacated and that the matter is remanded for further proceedings consistent with this opinion.

So ordered.

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[1] The same conclusion would be reached under Rule 1.6(b) (1) of the Proposed Massachusetts Rules of Professional Conduct, now pending before the Justices. Under rule 1.6(b) (1), as now proposed, a lawyer may reveal confidential information relating to a client “to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another.” Unlike DR 4-101(C) (3), which allows disclosure of a client’s intention to commit any crime, disclosure of a client’s intention to commit a crime is permissible under proposed rule 1.6(b) (1) only as to crimes threatening substantial consequences, and disclosure is permitted based on an attorney’s reasonable belief of the likely existence of the threat rather than, as is the case under DR 4-101(C) (3), a known intention of the client to commit a crime.