Criminal Justice

Lawyer's testimony about client’s threat to 'bust a cap' in prosecutor warrants reversal, appeals court says

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A trial court erred when it allowed a lawyer to testify about a client’s alleged threats against a prosecutor during two private conversations in the courthouse hallway, the District of Columbia Court of Appeals has ruled.

In a Nov. 17 opinion, the appeals court overturned Brian E. Moore’s conviction for threatening a public official and obstructing justice.

The Legal Profession Blog noted the decision, written by Judge Catharine F. Easterly.

Moore had threatened to “bust a cap in this b- - - -” while making a hand motion simulating a gun, according to testimony by his court-appointed lawyer in another case, John Harvey. Moore was referring to an assistant attorney general, Harvey said.

At the time of the hallway conversations, Harvey was representing Moore in a 2018 contempt trial for allegedly violating a no-contact order. Moore made the alleged threatening statements after the assistant attorney general sought to alter terms of his release. Moore became angry because he did not want to miss work, according to the appeals court.

Moore didn’t concede that he made the statements but argued that they are privileged and couldn’t be used if he did make them. The appeals court agreed that Moore’s statements were privileged and vacated his conviction.

The first hallway conversation happened in April 2018, after the assistant attorney general asked the judge to reinstate an order requiring Moore to wear a GPS monitor on his ankle. Moore was “very agitated” and said things like, “F- - - that b- - - -,” according to Harvey’s account.

Harvey told Moore that the prosecutor was only doing her job, and it was “just silly on his part to be angry.” But that further angered Moore, who allegedly said, “I’ll shoot that b- - - -.” He repeated it two more times during the conversation, Harvey said.

Harvey told Moore that he would have to withdraw from the representation. He then called bar counsel and said he was aware that he couldn’t disclose Moore’s secrets about past criminal activity, but his understanding was that threats to commit future criminal activity were outside his representation.

Harvey also noted a D.C. ethics rule that allowed him to reveal client confidences to the extent reasonably necessary to prevent a client from engaging in a criminal act that he reasonably thought was likely to result in death or substantial bodily harm absent disclosure.

The bar counsel told Harvey that the decision on whether to disclose such statements was left to his discretion.

Harvey decided to ask the judge whether he could withdraw because of an unspecified “ethical problem” and a “toxic” attorney-client relationship. Harvey acknowledged that his reason for withdrawing had nothing to do with Moore using his services to perpetrate a crime or a fraud.

The judge refused to allow Harvey to withdraw. The client later told Moore that he was just “bulls - - -ing,” and he didn’t mean it. Harvey responded that Moore should never again talk to him about shooting anyone.

Moore missed the next court hearing because of job training, and the judge continued the trial to June 29, 2018. At that time, Moore showed up, and the judge granted the prosecutor’s request to require an ankle GPS bracelet. Moore had to come back Monday to get the ankle bracelet, which would cause him to miss his next scheduled training.

Out in the hallway, Moore allegedly told Harvey that, “If I lose my job, I’m going to bust a cap in this b- - - -.” He said it two more times, making the hand gesture the third time, Harvey said.

Harvey went back into the courtroom and renewed his motion to withdraw. He said he would reveal Moore’s statements if the court ordered it, and the judge obliged. After hearing Harvey’s account, the judge ordered that Moore be detained and granted Harvey’s withdrawal motion.

The appeals court said the decision on whether to disclose danger to another person is a discretionary decision by the lawyer. But the issue on appeal is different: whether attorney-client privilege bars admission of Harvey’s testimony in Moore’s threats trial.

Generally, attorney-client privilege applies if one of the significant purposes of a client’s communication with a lawyer is to obtain legal assistance, the appeals court said. The test is not whether a statement is necessary to the subject of the consultation but whether it was made to obtain advice on that subject.

That “significant purpose” test is even more permissive in contexts involving pro bono or court-appointed lawyers, the appeals court said.

For a court-appointed attorney-client relationship to be meaningful, the appeals court said, there must be room for wide-ranging conversation that establishes trust, including conversations that are “meandering, filled with digressions, detours and emotional outbursts.”

“To hold that forceful reactions, frustrated venting, or even verbally violent outbursts categorically fall outside the client’s ‘significant purpose’ of seeking legal representation from court-appointed counsel unreasonably imposes a crabbed and technical construction of the privilege on the messiness of human interactions in highly stressful circumstances,” the appeals court said.

In Moore’s case, the appeals court said, a significant purpose of the hallway outbursts was to obtain legal assistance because Moore was concerned about the government’s effort to alter the conditions of his release and its potential impact.

“Applying the privilege to this scenario recognizes that this was a missed opportunity for counseling,” the appeals court said.

The best outcome, the appeals court said in a footnote, would have been for Harvey to convince Moore that harming the prosecutor would not serve his interests.

Judge Phyllis D. Thompson dissented, arguing that the statements were not covered by attorney-client privilege, and the majority’s contrary conclusion was “quite disturbing.”

Harvey didn’t immediately respond to an emailed request for comment by the ABA Journal.

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