Issue: Whether the trial court, in ruling on competency, improperly relied on its perceptions of the defendant’s attorney in a prior case, in stressing that that attorney hadn’t raised competency.
¶1 … At issue is whether an attorney’s opinions, perceptions, and impressions relating to a former client’s mental competency are confidential communications within the meaning of the attorney-client privilege, Wis. Stat. § 905.03(2) (1997-98), and SCR 20:1.6, and therefore cannot be revealed without the consent of the client.
¶2 We reverse the decision of the court of appeals and hold that an attorney’s opinions, perceptions, and impressions relating to a former client’s mental competency fall within the definition of a confidential communication pursuant to Wis. Stat. § 905.03(2) and SCR 20:1.6. As a result, such communications may not be revealed without the consent of the client. We therefore remand this matter to the circuit court for a nunc pro tunc competency hearing.
¶18 This case presents an issue of first impression: whether an attorney’s opinions, perceptions, and impressions of a former client’s mental competency are confidential communications within the meaning of Wis. Stat. § 905.03(2) and SCR 20:1.6.
¶40 We agree with the jurisdictions that hold that an attorneys opinions, perceptions, and impressions of a client’s competency to proceed are protected by the attorney-client privilege. An attorney’s opinion of a client’s mental competency is based largely upon private communications with the client. …
There may be a temptation to see the result as an unalloyed, pro-defense ruling (after all, what does the defense bar generally hold more dear than client confidentiality?); but before leaping to full-throated praise of Meeks, you might first ponder the potential costs. Meeks glosses over several problems, ranging from the pragmatic to the doctrinal:
- it creates potentially intolerable tension between duty to maintain client confidentiality and equally compelling duty to ensure client competency;
- it conflates ethical rules of confidentiality with evidentiary rules of privilege;
- sooner or later, it will be used to inhibit cross-examination.
Client competency. The court acknowledges tension between its holding and State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986) (counsel has duty to reveal doubts as to competency) but splits the difference by saying that the “very narrow and limited breach” demanded by Johnson is supported by “compelling interests” of the present representation that don’t affect former counsel. ¶¶42-50. In other words, the “compelling interests that drove” Johnson simply aren’t present, ¶49. If that is indeed a meaningful distinction, then Meeks may be argued to be and limited as very fact-specific: it may apply only to disclosure relative to prior representation (a situation unlikely to come up much if at all), without in any way inhibiting counsel’s duty to disclose doubts as to present representation. Although the pragmatic need to have counsel fully air present doubts as to competency may well lead to such a limitation, the logic of the opinion itself doesn’t lend itself to such a facile distinction. That is, the entire basis of the holding — “that disclosure of even non-verbal communications, such as the ones at issue here, violates the attorney-client privilege,” ¶36 — applies equally to present as past representation. The court thus has established tension between long-standing duty of disclosure under Johnson and the newly created duty of confidentiality under Meeks, yet fails to explain how this tension might be resolved. Indeed, as discussed below, the court actually makes a muddle of the problem.
First, just on the facts: as the dissent cogently points out, former counsel was never asked for and never offered any testimony about her opinions, perceptions and impressions of Meeks’ mental state. ¶67. See also ¶87: “The majority concludes that [counsel]’s testimony violates the attorney-client privilege without evaluating any of the specific questions asked of [counsel] or the answers she gave.” The net result would thus seem to be violation of the privilege for an attorney simply to testify that she represented the defendant and that in general she raises any doubt at all as to a client’s competence. ¶¶66-67. What this means, then, is that it’s hard to see how former counsel can testify to anything (nor is there any reason to believe that this case is context-specific, i.e., limited to competency questions; exceptions exist, of course, but they are discrete, see, ¶32).
Fairly summarized, then, all counsel really said was that she’s sensitive about, and alert to, the need to raise competency. (And, that an Alford plea is conceptually complex.) If that reveals confidential information, then it’s hard to see what wouldn’t — something that would be equally true in regard to current representation. The majority recognizes the problem (sort of) … then punts:
¶46. This tension, however, does not amount to a direct conflict requiring that we overrule Johnson. An attorney’s duty under Johnson demands a very narrow and limited breach of the attorney-client privilege. The attorney is merely obligated to “raise the issue [of competency] with the trial court.” Johnson, 133 Wis. 2d at 220. There is no requirement that the attorney testify about his or her reasons for raising the issue or the opinions, perceptions, or impressions that form the basis for his or her reason to doubt the client’s competence.
A most inelegant solution: You can tell the trial court you have doubts as to competency (indeed, you’re presumably still required to do so); but you can’t tell the court why. With any luck, courts will generally order an evaluation on the attorney’s say-so, but after that or in the face of judicial opposition … good luck. On the other hand, it might be argued that rights are attended by hierarchical values: a witness’s (valid) invocation of the 5th amendment privilege is assigned greater value than the defendant’s 6th amendment right of confrontation, e.g., State v. Jon P. Barreau, 2002 WI App 198, ¶51 (“Even where the defendant’s right of confrontation may be implicated, a witness cannot be compelled to waive his or her privilege against self-incrimination.”). The same could well be said in the present context: the importance of assuring present competency outweighs the “very narrow and limited breach of the attorney-client privilege,” and thus allows full expression of counsel’s doubts. (This analysis is admittedly contrary to the court’s suggestion above, yet, that suggestion is really dicta.)
If the holding is indeed built on a hierarchy of values which places the attorney-client privilege at the very apex, then it is apparent that the court simply failed to consider that competency itself is the very foundation on which the privilege rests. See, for example, People v. Pokovich, 141 P. 3d 267 (Cal 2006):
Just as strong, however, is the policy against trying persons who are mentally incompetent. In the words of the United States Supreme Court: “ ‘Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.’ ” (Cooper v. Oklahoma (1996) 517 U.S. 348, 354.)The policy that a mentally incompetent person not be subjected to a trial has its roots in our constitutional, statutory, and common law. It is thus a policy of ancient and venerable origin, founded on the view that to subject the mentally incompetent to trial or to punishment is inhumane and cruel….
The court of appeals subsequently, and without so much as mentioning Meeks, held that standby counsel may offer an opinion as to the pro se litigant’s competence, and that a decision to rescind self-representation may be based on such an opinion, Dane County DHS v. Susan P.S., 2006 WI App 100, ¶53 n.6, and accompanying text. (“We are aware of no legal or logical support for the proposition that the right to self-representation is denied by the mere act of standby counsel opining that a pro se litigant is incompetent.”) Whether the court simply overlooked Meeks, determined that that case isn’t relevant to standby counsel, or recognized that Meeks is, indeed, unworkable, remains to be seen.
Ethics vs. privileges. The court explicitly imports into the evidentiary rule of privilege the ethical rule of confidentiality, ¶¶30-34, something “the preamble to SCR Chapter 20 says must not be done,” as the dissent points out, ¶86. The ethical rule is broad one; privileges are narrowly construed – they do protect distinct interests, after all – the majority doesn’t address this problem. Interestingly, this conflation of privilege and confidentiality is surprisingly common, if not systemic. See, generally, Fred C. Zacharias, “Harmonizing Privilege and Confidentiality,” 40 S. Tex. L. Rev. 1037:
… In the real world, the most significant issues are not the scope of confidentiality rules, but rather the scope of privilege and the failure of lawyers and judges to distinguish privilege from confidentiality in key situations…. Because of the surprising number of instances in which even courts addressing client secrecy issues conflate the principles of privilege and confidentiality, it is important to differentiate them…. Legislatures should seek to harmonize at least the terminology of privilege and confidentiality rules. They can best do so by writing definitions for privilege and confidentiality — or for a single, newly named principle of secrecy — that identifies shared elements and frames their disparities in terms of discovery rules and shared exceptions.
The interaction between “confidentiality” and “privilege” isn’t exclusive to the attorney-client context, but it may simply be that (for understandable reasons) that’s where the judiciary is most sensitive and that other contexts won’t run the same risk of conflation. Indeed, in a subsequent case, the court ruled that although legislative confidentiality is distinct from legislative privilege, that distinction didn’t in and of itself create a privilege to refuse disclosure of the confidential material under a John Doe subpoena — see the LTSB case, here.
More concretely, the court holds both that the privilege belongs to the client and, because nothing in the record indicates that Meeks himself consented to the testimony, he didn’t waive the privilege; thus, you simply can’t rely on the privilege holder’s partisan advocate to argue the privilege. Does this mean that an ineffective assistance claim, which has long been understood to operate as a waiver of the privilege, now requires a personal waiver from the defendant? Meeks, then, will reverberate.
For that matter, consider the court’s gratuitous aside, that counsel “should have continued to protect the attorney-client privilege in her testimony by declining to give her opinions, perceptions, or impressions as to Meeks’ competency to proceed,” ¶53; but consider: the issue in Meeks was one of first impression, ¶18; “the overwhelming weight of authority find(s) no attorney-client privilege violation” in that setting, Dissent, ¶72; more judges in Meeks’ case found no privilege (trial court, unanimous three-judge court of appeals panel, including the author of a major evidence treatise, and two dissenting justices) than found a privilege (the five justices in the supreme court majority); and both Meeks’ prior and present counsel did object on privilege grounds, ¶72 n. 11, but were overruled. Given all that, the court nonetheless expected counsel to resist disclosure. Note, in this regard, that some jurisdictions authorize disclosure of otherwise confidential information when “required by law or court order.” E.g., State v. Doe, 101 Ohio St.3d 170, 2004-Ohio-705. Although no such escape hatch is written explicitly into current SCR 20:1.6, the current Comment to 1.6 does say, “The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client”; and the proposed, pending revision to 1.6 specifically authorizes such disclosure. Back to the court’s seemingly gratuitous criticism of counsel: as noted, an objection was made and overruled, and counsel was ordered to disclose information. Did the supreme court by its criticism mean to say that you should flatly ignore a judicial order which abrogates the potential privilege? That there is simply no duty to comply with a court order where the attorney-client privilege is concerned? That’s hard to imagine, but it’s one of the knottier possibilities left unresolved by the court’s less than rigorous treatment. Maybe the court meant to say that a more vigorous objection should have been lodged, and that is certainly the message to take away from this case. In other words, resist disclosure at all costs and for as long as you can. But why you would be any more obliged to obey an appellate than trial court order to disclose would remain a mystery. Cf. In re Appeal of Duckman, 898 A.2d 734, 2006 VT 23, ¶10:
The collateral bar rule provides that individuals cannot challenge the validity of a court order by violating the order. … Generally, attorneys must comply with a court’s ruling regardless of whether the ruling has legal support. See Maness v. Meyers, 419 U.S. 449, 458 (1975) (“Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.”). Thus, an attorney cannot generally defend against a contempt finding for violating an order by arguing that the underlying order was unlawful. … If an attorney feels that the court’s order is illegal or incorrect, the attorney’s obligation is to object and preserve the point of error for appeal. Maness, 419 U.S. at 459.
Granted, revelation is the harm and would indeed render an appeal moot, so that the Meeks court must perceive that counsel will obtain a stay and appeal the order to disclose. And if the stay isn’t granted? That is the sticking point, and it may well be that the court would prefer that, pending appeal, counsel go to jail for disobeying the order.
And see also discussion here, re: doctrine that exclusionary rule doesn’t apply to SCR violation is seemingly incompatible with doctrine that SCR informs evidentiary rulings.
Other contexts. As noted, the case may be limited to its facts. But the danger is that it will be read broadly, not merely as a wholesale importation of ethical into evidentiary rules, but as turning the attorney-client privilege into a trump card that overrides other, competing rights. For example: it is settled that the right to cross-examination must give way before valid exercise of the right to silence; can Meeks be used similarly to squelch, on attorney-client confidentiality grounds, the right to confront a witness? If it does come up, these authorities may be helpful, Murdock v. Castro, 365 F. 3d 699 (9th Cir. 2004):
… Today, we address a situation where a substantial showing has been made that, depending upon the content of Dinardo’s letter, the Confrontation Clause and attorney-client privilege are potentially at odds – a set of facts the Supreme Court has not yet examined. Its precedents, however, clearly provide that evidentiary privileges or other state laws must yield if necessary to ensure the level of cross-examination demanded by the Sixth Amendment. …… The attorney-client privilege should not be an unequivocal bar to access to the only evidence of inconsistent statements and ulterior motives made by accomplices turned government witnesses.
U.S. v. Almeida, 341 F.3d 1318, 1325 (11th Cir. 2003):
It is also an ancient rule in many jurisdictions that “where an accomplice turns state’s evidence and attempts to convict others by testimony which also convicts himself, he thereby waives the privilege against disclosing communications between himself and counsel.” See W.R. Habeeb, Annotation, Party’s Waiver of Privilege as to Communications with Counsel by Taking Stand and Testifying, 51 A.L.R.2d 521 § 4 (1957). …