I'm handling a grand jury investigation where the defendant testified before the grand jury and thoroughly testified about possible confidential communications with several lawyers that would probably be very beneficial for the grand jury to hear. I don't think the defendant told the total substance of the communications and some of them weren't even confidential but the attorneys are understandably nervous from an ethical standpoint and want a court order to protect them. Except for the current attorney who is representing the defendant at this time, all wish to testify before the grand jury. The existence of an attorney-client relationship is clearly questionable but I don't want to take a chance. I want to try to get this decided now so the grand jury can hear their testimony rather than wait for trial. I asked the defendant and the defendant's present attorney if the defendant would execute a written waiver of privilege as to any of the lawyers and the defendant refused. I am thinking about filing a motion to have the district judge determine that the privilege has been waived by the defendant's voluntary testimony at grand jury and then order the attorneys to testify. I don't think I'm going to try to get the privilege waived as to the current attorney even though I'm not looking to get any legal advice per se which he gave. It is my belief that the defendant essentially discussed committing a crime with most of these attorneys and has lied to the grand jury about the details of the conversation. I know about the crime discussion exception under the privilege and plan to use that as well. Any ideas on how to do this procedurally? Notify each attorney and have a separate hearing on each? Give notice to the defendant and current attorney as to my motions on all of the other "attorneys?" Any ideas? Thanks a bunch.

If your reply is too long to post, feel free to email at chamlibda@yahoo.com Thanks.

Take a look at Carmona v. State, 941 SW2d 949. Defendant sent our office a copy of the polygraph report, showing he was not lying when he denied a specific question regarding his sexual abuse of his daughter. He wanted us to use the polygraph results to drop the charges or get a no bill from a grand jury.

Instead, I called the polygraph operator and talked to him. He repeated that the defendant had passed the polygraph but volunteered that he also had confessed to doing a bunch of stuff against his daughter. That last part got left out of the polygraph report.

So, I indicted defendant and went to trial. I put defendant on notice that I would be calling the polygraph operator, especially if the defendant denied anything. Defendant testified, and I impeached defendant with polygraph operator's statements (no mention of polygraph) and then called the polygraph operator to testify.

Naturally, defendant claimed his statements to polygraph operator were priviliged as operator was an agent of his legal team. Probably so, but I argued that defendant waived that privilige by sending me a copy of the report and couldn't edit out portions of his conversation. It should all come in.

Now, the signficant thing here is that the defendant never testified to anything about the privilige. The only evidence regarding the privilege was the report and how it came to my office.

Under those circumstances, the appellate court held that the trial court did not abuse its discretion in finding that the defendant had personally waived the privilege, and everything comes in.

So, Mike, in your case, the defendant has voluntarily and personally disclosed privilege material. It sure sounds like you already have a waiver and can just call the attorneys to testify and seek a court order at the point they claim a privilege. I can understand why they might want a court order for their own protection.

I would issue a grand jury subpoena to all the attorneys, call them into the grand jury separately, submit a written list of broad questions to them, and have them refuse to answer all of the questions on the basis of attorney-client privilege. Then, file a motion to compel their testimony, using the defendant's earlier testimony as proof of waiver and attach the written list of questions as an exhibit to your motion to compel. This would eliminate the need for a court reporter's transcript of the attorneys' responses. Then, the court could make a finding of waiver, grant your motion, and order the attorneys to testify.