Rescue 911: Court Of Appeals Of Mississippi Stretches To Finds Statements Triggered Crime-Fraud Exception To Attorney-Client Privilege

November 28, 2009

Mississippi Rule of Professional Coduct 1.6(a) provides that:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

Meanwhile, Mississippi Rule of Professional Coduct 1.6(b)(1) provides that “[a] lawyer may reveal such information to the extent the lawyer reasonably believes necessary…to prevent reasonably certain death or substantial bodily harm.” Additionally, Mississippi Rule of Evidence 502(b), Mississippi’s attorney-client privilege provides that:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer’s representative, (2) between his lawyer and the lawyer’s representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

So, what happens when a client’s behavior triggers Mississippi Rule of Professional Coduct 1.6(b)(1) but is still covered by Mississippi Rule of Evidence 502(b)? It is an interesting question, but one which the Court of Appeals of Mississippi found that it did not have to address in its recent opinion in Shorter v. State, 2009 WL 4043361 (Miss.App. 2009). I agree with the court’s conclusion but disagree with its reasoning.

In Shorter, Johnny Charles Shorter was found guilty of murder after allegedly killing Kenneth Boutwell, whom Shorter suspected was sleeping with his wife. Two important pieces of evidence used to convict Shorter were two 911 calls made by Gill Baker, an attorney whom Shorter had hired to represent him in divorce proceedings against his wife, and who thought that Shorter was planning to shoot Jim Beckman, another man whom Shorter suspected was sleeping with his wife.

Baker first called 911 at approximately 1:00 a.m…., shortly before Shorter’s wife, Angelique, called 911 about Boutwell being shot. Baker told the 911 dispatcher that he “just got a call from a client who said he was fixin’ to drive about two miles down the road, stick a gun to a man’s head, and kill him.” Later in the conversation, the police dispatcher asked Baker, “You know what it’s about?” Baker responded, “He [Shorter] was coming to see me about a divorce.” Baker provided law enforcement with Beckman’s name, whom Baker suspected Shorter intended to kill. Baker said he would call back with Beckman’s contact information.

Shortly thereafter, Baker again called 911, and the following exchange took place:

Baker: I was just speaking with someone out there about a possible murder about to happen….

Baker: Johnny was drunk; he had found out about his wife and Mr. Beckman … over the last couple days. He was supposed to come see me in the morning about a divorce, and that’s all I know about it…. He said he had nothing to lose.

911 dispatcher: Oh yeah he does.

Baker: Yeah, that’s what I’m trying to convince him.

After Shorter was convicted, he appealed, claiming, inter alia, that the trial court admitted these calls by finding that Mississippi Rule of Professional Coduct 1.6(b)(1) applied and without reference to Mississippi Rule of Evidence 502(b). According to Shorter, this was problematic because “the attorney-client privilege cannot be waived by virtue of a rule of ethics.”

The court, however, found that the trial court did make reference to the attorney-client privilege and found that it was satisfied in Shorter’s case because the crime-fraud exception applied. That exception, contained in Mississippi Rule of Evidence 502(d)(1), provides that:

There is no privilege under this rule…[i]f the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

The Court of Appeals of Mississippi agreed, finding that Baker’s 911 calls revealed

that Shorter, whom Baker refers to as his “client,” did not merely tell Baker what he intended to do and then immediately hang up the phone. Rather, the recording depicts that the two had a conversation about Shorter’s proposed actions. While, according to Baker, Shorter contended he had nothing to lose, Baker attempted, albeit unsuccessfully, to persuade Shorter otherwise and to point out the potential consequences of Shorter’s actions.

Our supreme court has instructed that when a client seeks the attorney’s services to engage in a future crime or fraud, there must be “proof that the crime or fraud actually occurred.”…This burden was undoubtedly met, given the abundant proof that Shorter called his attorney, revealed his intention to commit a murder, and shortly thereafter went through with it.

I agree that there was proof that the crime – the murder — actually occurred, but I don’t see the proof that Shorter called Baker to use his services to aid him to plan or commit that crime. Shorter was not calling his attorney and asking him how to dispose of the victim’s body or make the death look like a suicide. Instead, it seems to me that Shorter merely felt close to his attorney — a divorce attorney — and felt that he was someone he could tell what he was going to do. Indeed, the fact that Shorter told Baker that he had nothing to lose makes it seem clear that he was not seeking assistance in completing or covering up the crime.

Of course, if this were he case, it wouldn’t change the outcome because Shorter’s statements to Baker simply wouldn’t be covered by the attorney-client privilege. As noted, that privilege only applies to “confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.” While I don’t think that Shorter sought assistance from Baker in completing or covering up the crime, I also don’t think that he made the statements to facilitate the rendition of professional legal services. Again, I think that Shorter just wanted someone whom he could tell what he was going to do.

-CM