Friday, August 25, 2017
In a remarkable opinion issued last Friday in United States v. Krug, the Second Circuit ruled that a courthouse hallway conversation between two co-defendants covered by the same Joint Defense Agreement, and overheard by a third covered co-defendant, did not constitute a privileged discussion protected under the common interest doctrine. Three Buffalo police officers indicted for civil rights violations had just attended a pretrial hearing at the federal courthouse. Defendants Krug, Wendel, and Kwiatkowski stood in a hallway right outside of a closed conference room where their attorneys were briefly discussing the case. The attorneys could not hear their clients. The opinion redacts the precise conversation but notes that, "the hallway discussion consisted of one member of the JDA (Wendel) conveying his independent, non-legal research to another member of the JDA (Krug) while noting he had sent the same research to his attorney. No legal advice was mentioned, much less shared or otherwise conveyed, among the co- defendants. The mere fact that the communications were among co-defendants who had joined in a joint defense agreement is, without more, insufficient to bring such statements within the attorney-client privilege." Kwiatkowski decided to plead guilty a week before trial. The 302 of his proffer, sent to the co-defendants' attorneys, revealed the hallway conversation's contents. Krug moved to exclude the comments from admission at trial. The trial judge granted the motion. Interlocutory appeal to the Second Circuit followed. The Second Circuit, in reversing the trial court, reasoned that the comment was not protected, because "[t]he excluded statements were not made to, in the presence of, or within the hearing of an attorney for any of the common-interest parties; nor did the excluded statements seek the advice of, or communicate advice previously given by, an attorney for any of the common-interest parties; nor were the excluded statements made for the purpose of communicating with such an attorney." That's quite a stretch. When you convey to a co-defendant that you have conducted some non-legal, but clearly relevant, internet research and sent it to your attorney, aren't you implicitly suggesting that your co-defendant inform his own attorney about the same research? And doesn't that make your statement one that was made for the purpose of communicating with an attorney for one of the common interest parties? Even more chilling is the following comment from the panel: "While expressing no view as to whether all such circumstances would invoke the privilege, we find nothing in the circumstances here to support the application of the privilege, and accordingly reverse the district court’s order of exclusion." In other words, even if one of the joint defense attorneys had been present, the Second Circuit will not say whether the comments would have been privileged. So be careful out there and remember that even strong written JDAs will not necessarily protect statements made between covered co-defendants. Even co-defendants covered by the same JDA should not be allowed to confer among themselves and communication between a covered defendant and the lawyer for a covered co-defendant should never take place absent the presence of the first defendant's own attorney. Terrence Connors of Connors LLP represents Krug and Rodney Personius of Personius Melber LLP represents Wendel. Here's hoping that they ask for en banc reconsideration.