How Attorney-Client Privilege Works


Evolution of Attorney-Client Privilege
In the appeal that made it to California's Supreme Court, privilege outweighs defense counsels right to knowledge in some cases when it comes to evidence and its location. Justin Sullivan/Getty Images

Over the years, the attorney-client privilege has been poked, prodded, amended, refined, expanded and constrained. One notable case in which the courts went out of their way to craft an exception to the privilege was People v. Meredith.

In California in 1976, Michael Meredith got his buddy Frank Scott to join him for a bit of criminal activity. Together they jumped a guy named David Wade and ended up shooting and killing him. The two men ran for it but managed to get themselves arrested not long after [source: Dashjian].

Meredith and Scott languished in jail awaiting trial and one day, Scott's appointed counsel, attorney James Schenk, went by to chat. He was worried about getting ambushed by the prosecution and wanted as much info as Scott could offer. The subsequent conversation triggered a legal controversy that would go all the way to California Supreme Court.

What happened seems minor — Scott mentioned a wallet — the victim's wallet. Scott had lifted the aforesaid item from David Wade's corpse, divided the cash with Meredith and, he added, chucked it (the wallet) into a trashcan in his backyard [source: Dashjian].

Schenk sent his investigator to locate said wallet, had a look at it and then gave it to the cops. From the point of view of his client, this might not have been the best move. Not the part about giving the wallet to the police, but the bit just before that — when Schenk decided to get his hands on it in the first place.

During a subsequent hearing, Schenk was subpoenaed and, after being warned that he would otherwise be found in contempt of court, admitted everything he knew about the wallet. In the end, Scott was found guilty of first-degree murder and first-degree robbery, largely thanks to Schenk's testimony and that of his investigator, who located the wallet in Scott's trashcan [source: Dashjian].

In the appeal that made it to California's Supreme Court, Scott's (new) defense counsel argued that the defendant's attorney-client privilege had been breached when Schenk was made to testify about the evidence and its location. But the Court disagreed, creating an important exception to attorney-client privilege. Had Schenk left the wallet where it was, attorney-client privilege would have prevailed, but because he moved it, the privilege no longer applied. The Court pointed out that if the privilege was allowed to pertain in such a case, it would be an incentive for defense attorneys to try and "race" the cops to evidence in future cases [source: Dashjian].

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