by Joseph Brophy for the October 2025 issue of the Maricopa Lawyer, a publication of the Maricopa County Bar Association
It has been said that practicing law is the greatest job in the world, except for the clients. So it was for a D.C. lawyer, whose actions in response to a difficult situation have led the District of Columbia Court of Appeals to split over the admissibility of a criminal defense attorney’s testimony regarding attorney-client communications in a subsequent criminal prosecution of the client.
Lawyer was representing Client in criminal contempt proceedings for violating a civil protective order. At the contempt trial, the prosecutor sought reinstatement of GPS ankle monitoring of the client. During a break, the client chose some colorful language to “express” (or, as the dissenting judges would describe it: “vent”) his frustrations with the prosecutor. Client, however, was a man of action, and a problem solver. He also discussed, in Lawyer’s presence, several possible options for resolving the difficulties presented by the government’s position.
The problem was that Client’s proposed solutions involved what he described as his extensive firearms collection, and all resulted in the death of or serious bodily injury to the prosecutor. The Maricopa Lawyer being a family publication, the exact wording of Client’s brainstorming sessions in the presence of his attorney cannot be written here, so the reader will have to use their imagination.
Client was unimpressed by Lawyer’s suggestion that the prosecutor was only doing their job. This left Lawyer in an ethical quandary. The first problem was whether Lawyer had to withdraw under ER 1.16, which allows a lawyer to “withdraw from representing a client if,” among other things, “[t]he client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent” or “[t]he client has used the lawyer’s services to perpetrate a crime or fraud.” The second was whether the crime-fraud exception to the attorney-client privilege applied thereby allowing Lawyer to disclose the communications ER 1.6(c).
Lawyer evidently subscribed to the old adage: “When people tell you who they are, believe them.” Lawyer believed Client. So Lawyer moved to withdraw without reporting the threats, but the trial court denied his motion. Lawyer next reached out to the local bar counsel about disclosure of the threats and received the answer that all recipients of legal advice receive, the dreaded “it depends.”
After Client again threatened the prosecutor in Lawyer’s presence (this time using Shooter McGavin-style finger guns just in case words were insufficient to express his intentions), Lawyer again moved to withdraw, this time telling the court he would disclose his reasons if ordered to do so. The court demanded a reason, which Lawyer provided, which in turn resulted in Client’s arrest. Lawyer was subsequently forced to provide testimony to the grand jury regarding Client’s threats.
That grand jury testimony resulted in another ethical quandary, which divided the DC appellate court – was it appropriate to compel a criminal defense attorney to testify against his own client in a prosecution arising from arguably privileged statements?
A majority of an en banc panel of the D.C. Court of Appeals held that the attorney-client privilege does not protect communications that objectively qualify as criminal threats, even if they are made in confidence during a legal consultation, because such threats qualify as an abuse of the attorney-client relationship. The court held that this exception to the privilege applies regardless of whether the attorney discloses the threats or believes the client intends to act on those threats. For that reason, Lawyer could be compelled to testify against his former client before the grand jury.
The court was careful to explain that its ruling was not based on the crime-fraud exception to the attorney-client privilege, because that exception requires that the lawyer assist in the crime, which did not happen in the case before the court. The court reasoned that true threats are completed crimes, which cannot be protected by the privilege. The court justified its decision by citing precedents denying protection of threats and out of a concern for creating an unintended “attorney-client exception” to criminal threat statutes.
The dissent, however, said that allowing attorneys to become witnesses against their clients would harm the socially valuable confidential relationship between attorney and client, and that the only exception to this privilege has been the traditional crime-fraud exception to the privilege, which requires that the communications at misuse the privilege by furthering the commission of a crime. Describing the majority’s “abuse of attorney-client relationship” rationale as vague and expansive, the dissent warned of a chilling effect on candid attorney-client communications that may cause clients to self-sensor when expressing their frustrations to their lawyer.
As applied to the case before the court, the dissent noted that the statements Client made to Lawyer were conditional – if the prosecutor did not stop “messing” with Client, then Client might shoot the prosecutor. The dissent pointed out that the mere fact that Lawyer was present when such conditional statements were made did not mean Lawyer was assisting in the commission of a crime, therefore, the crime-fraud exception did not apply and the privilege should remain intact.
Finally, the dissent noted that no other court in the country had adopted the majority opinion’s new exception to the attorney-client privilege and carefully distinguished each of the precedents relied upon by the majority.
Arizona has only analyzed the issue of true threats in the First Amendment context, and therefore its case law is silent on this issue. For those of you who have the misfortune to be in a position where you need to determine application of the attorney-client privilege to situations involving potential criminal threats, the case, titled Moore v. United States and issued on September 4, 2025, is an excellent resource.