Evidence—Attorney-Client Privilege as Applied to Advice by an Attorney to His Client, Reflecting on Judicial Integrity

A recent case from the Federal District Court for Nevada, In re Bull, raises some interesting problems as to the extent to which an attorney’s advice which reflects on judicial integrity is privileged. The attorney who was a defendant in a disbarment proceeding had unsuccessfully represented a client in a previous criminal case, and the client was serving a jail sentence. In a letter to the client on the advisability of appealing the conviction, the attorney stated, among other things, that experience had shown that the records of any trial in that judge’s court were emasculated when an appeal was taken; that the judge had a very dear friend on the circuit court; and that the conduct of the judge at trial had been so reprehensible that the attorney was willing to go to great lengths to secure a reversal. The letter was intercepted by the client’s jailor and was made the basis for the disbarment action. The court decided that the letter was clearly not a privileged communication and was admissible in evidence. But the court concluded that an attorney’s advice to an imprisoned client could not be made the basis for disbarment since the client might thereby be deprived of his constitutional right to effective assistance from counsel. I. The Attorney-Client Privilege in Evidence … A. Historical and Policy Basis … B. Waiver of the Privilege II. Qualified Substantive Privileg