Two Courts Explore the Effect on Criminal Indictments of an Attorney-Client Privilege Breach

June 22, 2005

The attorney-client privilege is the law’s oldest privilege, and has received numerous endorsements by the United States Supreme Court. Can criminal defendants seek relief if a third party violates their attorney-client privilege?

In United States v. Marlinga, No. 04-80372, 2005 U.S. Dist. LEXIS 2636 (E.D. Mich. Feb. 22, 2005), a criminal defendant claimed that his lawyer improperly revealed privileged communications to the government. He moved to suppress the evidence. The court rejected his motion, noting that the attorney-client privilege is not a constitutional right. Id. at *18 (emphasis added). As the court explained it, “in the absence of purposeful government involvement in the breach, the exploitation by the Government of evidence it obtains in violation of the attorney-client privilege is constitutionally permissible.” Id. at *21. Several weeks later, another court refused to dismiss an indictment based on a similar incident – explaining that “the alleged violations of the attorney-client privilege before the grand jury do not give rise to the type of Government misconduct that would require dismissal of the indictment.” United States v. Schlesinger, 360 F. Supp. 2d 512, 521 (E.D.N.Y. 2005).

Although most civil litigants thankfully do not deal with this issue, these two decisions highlight the common law (rather than constitutional) nature of the privilege.