Jones v. United States
828 A. 2d 169, 2003 WL 21543745, 2003 D.C. App. LEXIS 434 (2003)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The attorney-client privilege does not protect a communication when the person seeking advice is consulting a lawyer-friend in their capacity as a friend, rather than as a professional legal advisor, and the client's belief that they are creating a professional relationship is not reasonable under the circumstances.
Facts:
- On March 23, 1996, Darcie Silver was found strangled to death in her apartment.
- The appellant, who was a co-worker of Silver's, was interviewed by police as part of the investigation.
- During the interview, police asked appellant for hair and blood samples, which he declined to provide.
- After the interview, appellant called his girlfriend at the time, Tina Ducharme, who was a government attorney away on business.
- Appellant told Ducharme about the police interview and asked her questions, such as whether his fingerprints might remain on a glass or if his sperm could be found in the bathroom.
- Ducharme gave what she termed 'common sense advice,' told him he did not have to provide samples without a warrant, but also questioned why he wouldn't cooperate to clear his name.
- Ducharme later testified that she was not qualified to advise on criminal matters, was barred by regulation from private representation, and believed appellant was calling her for advice as his girlfriend, not as an attorney.
Procedural Posture:
- The appellant was charged in the Superior Court of the District of Columbia, the trial court, with burglary, sexual abuse, and murder.
- Before trial, the appellant filed a motion to exclude the testimony of his ex-girlfriend, Tina Ducharme, based on attorney-client privilege.
- The trial court held a pre-trial hearing on the motion, heard testimony from both the appellant and Ducharme, and subsequently denied the motion, ruling the privilege did not apply.
- Following a jury trial, the appellant was convicted on all counts.
- The appellant appealed his convictions to the District of Columbia Court of Appeals, the intermediate and highest appellate court for D.C. matters.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the attorney-client privilege protect a conversation between an individual and his lawyer-girlfriend when the trial court finds as a matter of fact that the lawyer was consulted as a friend and not in her professional legal capacity?
Opinions:
Majority - Terry, Associate Judge
No. The attorney-client privilege does not protect the conversation. The burden of proving that the privilege applies rests with the party asserting it, and the appellant failed to meet this burden. The court defers to the trial court's factual determination that Ms. Ducharme was consulted as a friend, not as a lawyer. The trial court found Ms. Ducharme's testimony credible and appellant's testimony incredible, noting he seemed to be tailoring his answers to the legal standard discussed in front of him. While the client's belief is key, it must be reasonable under the circumstances. Given that the questions were more 'scientific' than legal and the nature of their personal relationship, the trial court did not err in finding that appellant failed to establish that a professional attorney-client relationship was formed during the call.
Analysis:
This decision emphasizes that the existence of an attorney-client relationship is a factual question for the trial court, whose credibility determinations receive significant deference on appeal. It clarifies that merely speaking to a person who happens to be a lawyer does not automatically invoke the privilege, especially in the context of a pre-existing personal relationship. The ruling reinforces that the party claiming the privilege bears a heavy burden to prove that the communication's purpose was to seek professional legal advice from someone acting in their capacity as a lawyer, and that their subjective belief must be objectively reasonable.
