Can a Litigant Point Out to the Fact Finder That Its Adversary has Relied on the Attorney-Client Privilege?

July 14, 2010

Several courts have dealt with the permissibility of a litigant’s pointing out to the finder of fact that its adversary has asserted the privilege. Some courts have found such a tactic improper, for the same reason that courts generally do not allow the prosecution to make a criminal defendant plead the Fifth Amendment in front of the jury.

In Becker v. Longinaker, No.0-090 / 09-0833, 2010 Iowa App. LEXIS 304, at *35 (Iowa Ct. App. Apr. 21, 2010), defendant argued that the trial court had incorrectly allowed plaintiffs to ask questions about privileged matters – contending that the defendants “were prejudiced by plaintiffs’ actions in referring to defendants’ attorney‑client‑privileged communications.” The court found no abuse of discretion – noting that “although plaintiffs’ [sic] asked defendants questions about their attorney‑client‑privileged communications, the court sustained all objections to questions concerning the substance of the communications.” Id. at *36. Eight days later, a Texas state court addressed a similar issue in a criminal case. The court ultimately concluded that the criminal defendant had not properly preserved the point for appeal, but noted that a specific Texas Rule of Evidence “prohibits comments on a claim of privilege before the jury” – and even insists that “‘proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.'” Lucio v. State, No. 2-08-179-CR, 2010 Tex. App. LEXIS 3241, at *12-13 (Tex. App. Apr. 29, 2010) (citation omitted) (unpublished opinion).

It is too bad that other states have not followed Texas’ lead in preventing a litigant from explicitly or implicitly arguing that an adversary legitimately claiming privilege protection is trying to “hide the evidence.”