People v. Madera

• Decision Date: 31 May 2005
• Docket Number: No. 04SA213.,04SA213.
• Citation: 112 P.3d 688
• Parties: The PEOPLE of the State of Colorado, Plaintiff, v. Eric Lee MADERA, Defendant.
• Court: Colorado Supreme Court

112 P.3d 688

The PEOPLE of the State of Colorado, Plaintiff, v. Eric Lee MADERA, Defendant.

No. 04SA213.

Supreme Court of Colorado, En Banc.

May 31, 2005.

Driscoll Law Office, Robert J. Driscoll, Ryan P. Montgomery, Denver, for Defendant-Petitioner.

Ken Buck, District Attorney, Nineteenth Judicial District, Phil Clark, Deputy District Attorney, Greeley, for Plaintiff-Respondent.

MULLARKEY, Chief Justice.

I. Introduction

In this original proceeding pursuant to C.A.R. 21, we review the district court's order requiring defendant Eric Lee Madera's former criminal defense counsel, Deputy Public Defender Derek Samuelson, to produce his entire file for the trial court's in camera review. The court's order was issued after the defendant objected to the prosecution's attempt to gain access to Samuelson's file in preparation for a hearing on the defendant's motion to withdraw his guilty plea. We set aside the court's order.

II. Facts and Procedural History

Madera was charged with attempted murder, and Samuelson represented him from his charging through his guilty plea to first degree assault.¹ Before sentencing, Madera filed a pro se motion to terminate his representation by Samuelson and asked the court to appoint conflict counsel for him. The court appointed a private attorney to represent him and he is now represented by successor counsel.

Madera moved to withdraw his plea of guilty pursuant to Crim. P. 32(d), alleging that Samuelson had provided ineffective assistance of counsel relating to Madera's guilty plea. The People objected to the defendant's motion to withdraw his plea and requested that the defendant execute a written waiver of attorney-client privilege. No such waiver was executed.

Subsequently, the prosecution served a subpoena duces tecum on Samuelson, seeking production of all documents in Samuelson's possession relating to his representation of Madera that are relevant to Madera's ineffective assistance of counsel claim. Madera filed a motion to quash the subpoena duces tecum which was denied by the trial court. The trial court found that Madera had waived his attorney-client privilege and ordered Samuelson to turn over all documents relating to Madera for its in camera review.

As we understand the facts, the prosecution subpoenaed Samuelson's file after a deputy district attorney interviewed him and concluded that Samuelson could not recall specific dates and facts about Madera's case without referring to his case file. At the interview, Samuelson refused the prosecution's request that he disclose any notes or documents relevant to Madera's claim that his guilty plea was not made knowingly, voluntarily, and intelligently.

We issued a rule to show cause why the district court's ruling should not be vacated and we now make the rule absolute.

III. Analysis

The decision of a trial court to conduct an in camera review of a defense counsel's case file has serious implications and should be undertaken only in the clearest of cases, when the information sought to be discovered is well defined and all other reasonable means of discovering the information have been exhausted.

In general, the contents of a defense attorney's case file are likely to be protected by the attorney-client privilege and the attorney work product privilege. These privileges have developed as essential parts of the adversarial system of adjudication. Without the privileges, frank discussions would not occur between clients and their attorneys, and attorneys would be unable to explore fully the best means of presenting their clients' cases.²

A. Attorney-Client Privilege

The attorney-client privilege applies to "confidential matters communicated by or to the client in the course of obtaining counsel, advice, or direction with respect to the client's rights or obligations." People v. Lesslie, 24 P.3d 22, 26 (Colo.App.2000). Furthermore, "the attorney-client privilege is personal with the client ... Hence, the privilege may be waived only by the client." Losavio v. Dist. Court, 188 Colo. 127, 533 P.2d 32, 35 (1975). "The burden of establishing such a waiver rests with the party seeking to overcome the privilege." Wesp v. Everson, 33 P.3d 191, 198 (Colo.2001).

In camera review is appropriate when a party opposing assertion of the attorney-client privilege makes some showing that an exception to the attorney-client privilege applies or that the privilege has been waived either explicitly or impliedly. See Caldwell v. Dist. Court, 644 P.2d 26, 32-33 (Colo.1982)

(discussing and applying crime-fraud exception to attorney-client privilege).

In addition to the difficulty involved in reviewing an attorney's case file, the reviewing court must consider the presumption in favor of the attorney-client privilege. Indeed,

the general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through subpoena or court order.

Hickman v. Taylor, 329 U.S. 495, 512, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

Thus, before engaging in an in camera review of an attorney's file, "`the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person' that in camera review of the materials may reveal evidence to establish the claim that" the attorney-client privilege does not protect all of the documents in the file. United States v. Zolin, 491 U.S. 554, 572, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989)(quoting this court's decision in Caldwell, 644 P.2d at 33). Caldwell placed an "intermediate burden" on the party seeking discovery of privileged documents. 644 P.2d at 33. While we did not require the moving party to prove a prima facie case, this court did require that party to show that the privilege exception applies to each document it sought to discover. Id. at 32-33.

Once a reasonable good faith belief has been shown by the moving party, the trial court may then exercise its discretion in deciding whether in camera review is appropriate after considering:

the facts and circumstances of the particular case, including, among other things, the volume of materials the district court has been asked to review, the relative importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply.

Zolin, 491 U.S. at 572, 109 S.Ct. 2619.

The attorney-client privilege is not absolute, of course. There are recognized exceptions to the privilege, and the privilege may be waived in certain circumstances. But the exceptions are simply exceptions. "To drive the privilege away, there must be `something to give colour to the charge;' there must be `prima facie evidence that it has some foundation in fact.'" Clark v. U.S., 289 U.S. 1, 15, 53 S.Ct. 465, 77 L.Ed. 993 (1933). The rule is that attorney-client communications are privileged and protected from discovery by opposing parties.

A trial court should be reluctant to review the contents of an attorney's case file precisely because of the importance of the privileges involved. In camera disclosure to the court is still a form of disclosure. Even if it goes no further and the court declines to release any documents to the moving party, the court's review could have a chilling effect on attorneys and their clients, especially if in camera review occurred frequently or was easily obtained. See e.g., PHE, Inc., v. Dep't of Justice, 983 F.2d 248, 253 (D.C.Cir.1993)

("In camera review is generally disfavored.").

A trial court undertakes a significant workload burden when it reviews an attorney's case file. Zolin, 491 U.S. at 571, 109 S.Ct. 2619. Unless the information sought is very carefully delineated, the trial court will have no guidance as it examines the case file. Review in such an instance will be tedious at best and probably unproductive as well.

In summary, Zolin, Caldwell, and related cases require the trial court to focus on the facts and circumstances of each case to determine the scope of the implied waiver. Before granting a request for in camera inspection of an attorney's case file, the trial court must determine (1) as precisely as possible, the information sought to be discovered, (2) whether the information is relevant to a matter at issue, (3) whether the information could be obtained by any other means, (4) whether the information is privileged, (5) if it is privileged, whether the privilege has been waived, (6) if it is privileged, but has been waived, either explicitly or impliedly, the scope of the waiver. By using this analytical framework, a trial court can determine whether the moving party has shown a reasonable good faith belief that in camera inspection will reveal that the documents sought fall within an exception to the attorney-client privilege or that the defendant waived the privilege.

B. Implied Waiver of Attorney-Client Privilege

Courts have found implied waiver of the attorney-client privilege when a defendant places the allegedly privileged communication at issue in the litigation, because "any other rule would enable the client to use as a sword the protection which is awarded him as a shield." Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533, 544 (Colo.1989) (quoting Cerney v. Paxton & Gallagher Co., 83 Neb. 88, 92, 119 N.W. 14, 16 (1908)).

Implied waiver may occur when the defendant raises a claim of ineffective assistance of counsel as to any communications relevant to the defendant's claim of ineffective assistance of counsel. Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir.2003).

As the Bittaker court observed, implied waiver in these circumstances is comparable to a situation where the trial court "gives the...