State v. Branham
2007 WL 941132, 952 So.2d 618 (2007)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The attorney-client privilege protects only those confidential communications made for the purpose of seeking or obtaining legal services. The privilege does not arise from a client's subjective belief or a lawyer's simple affirmation of an attorney-client relationship if the communication itself is not for the purpose of rendering legal services.
Facts:
- Michael Branham and his wife, Janette, were experiencing marital problems and discussing divorce.
- W. James Kelly, a lawyer and friend to both, informed them he would not represent either party in a divorce but agreed to act as a 'go-between' to help them resolve their differences.
- During a social visit at Branham's home the week before Janette's death, Kelly and Branham were discussing the marital issues.
- In the middle of the conversation, Branham asked Kelly if he was his attorney, to which Kelly responded, 'Sure.'
- Immediately following this exchange, Branham stated that he was going to kill his wife and repeated the threat several times during the conversation.
- Branham did not request any legal advice regarding the threat, and Kelly did not provide any, instead responding with statements like 'You're crazy. I don't even want to hear it.'
- Kelly later testified that he was speaking to Branham 'strictly as a friend' during this conversation and subsequently warned the victim about the threats.
Procedural Posture:
- Michael Branham was prosecuted for the murder of his wife in a Florida trial court.
- During the criminal proceedings, Branham filed a 'Notice of Exercise of Attorney-Client Privilege' to prevent his lawyer friend, W. James Kelly, from testifying about certain communications.
- The State filed a motion seeking a determination from the trial court that the communications were not privileged.
- The trial court held a hearing and entered an order ruling that the lawyer-client privilege applied, thereby excluding Kelly's testimony.
- The State, as petitioner, sought a writ of certiorari from the District Court of Appeal of Florida, Second District, to quash the trial court's order.
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 defendant's statement of intent to commit a crime made to a lawyer friend during a social visit, even if the lawyer had just affirmed he was the defendant's attorney, when the defendant was not seeking legal advice and the lawyer was not rendering legal services?
Opinions:
Majority - Judge Canady
No. The attorney-client privilege does not apply because the communication was not made for the purpose of obtaining legal services. Under Florida statute § 90.502, the privilege is triggered only when a person consults a lawyer to obtain legal services or is rendered legal services by a lawyer. Here, the evidence established that Branham never sought legal advice about his stated intent to kill his wife, and Kelly never gave any. The conversation occurred during a social visit where Kelly was acting as a friend, not a legal professional. The court rejected the trial court's reasoning that the privilege was created simply because Kelly affirmed he was Branham's attorney, stating, 'The lawyer-client privilege is not established by incantation.' The existence of a prior attorney-client relationship on unrelated matters does not create a blanket privilege for all subsequent personal conversations.
Concurring - Judge Silberman
No. The attorney-client privilege does not apply. The concurring opinion agrees entirely with the majority's reasoning that no legal services were sought or rendered. It further notes that even if Branham had been seeking legal advice, the communication would likely fall under the crime-fraud exception in section 90.502(4)(a). This exception provides that there is no privilege when a lawyer's services are sought to enable or aid in the commission of a future crime or fraud. Since Branham presented no evidence that he was seeking legitimate legal advice, the privilege was correctly denied.
Analysis:
This case clarifies that the application of the attorney-client privilege is determined by the substance and purpose of the communication, not by formal labels or pre-existing relationships. The court's rejection of the 'incantation' theory reinforces that a client's subjective belief or a lawyer's casual affirmation is insufficient to invoke the privilege. This decision serves as a crucial reminder for legal practitioners and clients that the privilege is not absolute and does not cover communications made outside the context of seeking or providing legal counsel, particularly in informal or social settings. Future courts will likely cite this case to deny privilege claims where the communication's purpose was personal rather than professional.
