Wednesday, August 17, 2011

Privilege Assertion Leads To Reversal Of Conviction

A criminal conviction has been reversed by the Maryland Court of Appeals because the trial court permitted an attorney for the defendant to testify in the prosecution's case-in-chief about the "surrounding facts and circumstances" of the representation.

The court held:

Upon a showing that an attorney and a client communicated in a professional capacity, the
attorney-client privilege is invoked, and, pursuant to Maryland Rule 5-104, a trial judge must
perform a preliminary inquiry into the surrounding facts and circumstances of the
representation and determine the nature and scope of privileged communication, the State’s
intended use of the allegedly privileged communication, as well as the extent of any waiver.

The case involved allegations that a husband had stolen from his wife. The attorney had prepared a deed (at issue in the trial) and had asserted that he represented both husband and wife.

The Washington Post had these details on the criminal allegations. The Post reports that the alleged victim was an 83 year old widow who married the 66 year old defendant.

 A guardian was appointed for the widow. He sought to void a deed and invalidate a will drawn by the lawyer-witness. The guardian also sought and obtained annullment of the marriage. The defendant's attorney had testified in the annulment proceeding, which the trial court viewed as a waiver of the privilege.

On a personal note, the Parkway Deli (the scene of the alleged crime, according to the Post) is the deli I grew up with. The food is still great.  (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/08/a-crimial-conviction-has-been-reversed-by-the-maryland-court-of-appeals-because-the-trial-court-permitted-an-attorney-for-the.html

Clients, Privilege | Permalink

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