In June, 1982, a Norfolk County grand jury indicted the defendant, Lawrence Goldman, for conspiracy to murder a former Boston police officer named John Glenn. When it became apparent that the Commonwealth would call Glenn as a witness at the defendant's trial, defense counsel, Mr. Willie J. Davis, filed a motion in limine seeking a pretrial ruling on a question concerning the attorney-client privilege. Following a hearing, a Superior Court judge made certain findings of fact and ruled on the motion. She then reported to the Appeals Court four questions raised by the motion. See Mass. R. Crim. P. 34, 378 Mass. 905 (1979). This court allowed the defendant's application for direct appellate review.
We summarize the facts as found by the judge. In January, 1982, Glenn made an unsuccessful attempt to murder an individual named Leo Shorter. The Commonwealth theorizes that the defendant, a codefendant in this case named John Miskel, and others hired Glenn to kill Shorter because Shorter had cheated the defendant in a drug deal. A Norfolk County grand jury indicted Glenn for assault with intent to murder Shorter. Shortly after his arraignment in January, 1982, Glenn met with Mr. Davis concerning the possibility of Mr. Davis's representing Glenn. Glenn and Mr. Davis discussed the indictment; Glenn gave confidential information about the case to Mr. Davis. They reached no agreement, however, concerning Mr. Davis's representation of Glenn, and Mr. Davis did not represent Glenn at his trial.
Following a trial in the Superior Court in Norfolk County, Glenn was convicted. His sentencing has been continued pending his testimony in the instant case. In this case, the Commonwealth alleges that, after Glenn's unsuccessful attempt to kill
After Mr. Davis filed the motion in limine, the judge held an in camera hearing at which Mr. Davis testified as to the substance of his conversation with Glenn.
The judge reported the following questions:
We hold that, by testifying in the instant case, Glenn does not automatically waive the attorney-client privilege concerning his conversation with Mr. Davis, and that, on this record, justice does not require that the privilege be overridden. Although a genuine conflict of interest exists which may require withdrawal by Mr. Davis, the defendant may consent to his continued representation by Mr. Davis, so long as his consent is voluntarily, knowingly, and intelligently made.
1. Waiver of attorney-client privilege.
The court next relied on the doctrine established in Woburn in Commonwealth v. Barronian, 235 Mass. 364, 367 (1920), where, over his objection, the defendant was asked on cross-examination about conversations with his attorney. Citing Woburn, the court stated that the "defendant has no valid ground for complaint." Barronian, supra. The rule in Woburn was then cited in Gossman v. Rosenberg, 237 Mass. 122, 124 (1921), in which the court held that a witness could claim no privilege as to trade secrets and stated in dictum that "a voluntary witness waives every personal privilege." Woburn was again cited in Knowlton v. Fourth-Atlantic Nat'l Bank, 264 Mass. 181, 196 (1928). This case, however, does not follow from the broad doctrine of the Woburn case. In Knowlton, the witness testified as to the substance of a specific conversation with his attorney. Thus, in reviewing the propriety of a question calling for the attorney to testify as to the conversation, this court held that the client had waived the privilege.
The contrary line of cases, holding that a witness's taking the stand, by itself, does not produce a wholesale waiver of the privilege, began with Montgomery v. Pickering, 116 Mass. 227, 231 (1874). Montgomery was followed by Blount v. Kimpton, 155 Mass. 378, 380 (1892), and McCooe v. Dighton, Somerset, & Swansea St. Ry., 173 Mass. 117, 119 (1899). More recently, in Kendall v. Atkins, 374 Mass. 320, 325 (1978), we assumed, without deciding, that the plaintiff properly could claim the privilege after having testified in her own behalf.
In his argument the defendant apparently confuses two distinct scenarios. In the first, a witness testifies as to events
"[T]estimony about an event ... should not be construed as a waiver of the privilege, merely because the subject matter of the testimony may also have been discussed in the privileged communication," People v. Lynch, 23 N.Y.2d 262, 271 (1968); waiver of the attorney-client privilege should not be implied from a witness's taking the stand. See People v. Shapiro, 308 N.Y. 453,
The defendant argues, however, that, even where there is no waiver of the privilege, the interests of justice require that it be overridden. Apropos of the defendant's argument is the rule set forth in Annot., 51 A.L.R.2d 521, 528 (1957), that "where an accomplice turns state's evidence and attempts to convict others by testimony which also convicts himself, he thereby waives the privilege against disclosing communications between himself and counsel." See id., cases cited. The rationale underlying this approach was described in Jones v. State, 65 Miss. 179, 184 (1887): "The reason for maintaining such privileges ceases, when one has voluntarily exposed himself by his own testimony, to the very consequences from which it was intended by the privilege to protect him. To preserve such privilege in such case would be worse than vain, for while it could not help the witness, it might, by withholding the only means of contradicting and impeaching him, operate with the greatest injustice towards the party on trial." That Glenn is the victim of, rather than accomplice to, the crime does not serve to make this rationale inapplicable; Glenn is expected to testify about events for which he has already been convicted.
Nevertheless, the policy justifications for the attorney-client privilege override the reasoning of the court in Jones and support the judge's conclusion that, on this record, the privilege
In conclusion, we choose to follow the rule stated in 8 J. Wigmore, Evidence § 2327, at 637 (McNaughton rev. 1961): "The client's offer of his own testimony in the cause at large is not a waiver for the purpose either of cross-examining him to the communications or of calling the attorney to prove them. Otherwise the privilege of consultation would be exercised only at the penalty of closing the client's own mouth on the stand." (Emphasis in original.) See Littlefield v. Superior Court, 136 Cal.App.3d 477, 483-485 (1982); State v. Hollins, 184 N.W.2d 676, 678 (Iowa 1971); Dunn v. Commonwealth, 350 S.W.2d 709, 713 (Ky. 1961). Accordingly, we agree with the judge that the proper answer to reported questions (1) and (2) is "No."
A conflict of interest arises whenever an attorney's regard for one duty leads to disregard of another. United States v. Miller, 463 F.2d 600, 602 (1st Cir.), cert. denied sub nom. Gregory v. United States, 409 U.S. 956 (1972). In the instant case, Mr. Davis has a clear duty to maintain the confidence of his former client Glenn. S.J.C. Rule 3:07, Canon 4, DR 4-101(B), as amended, 382 Mass. 778 (1981). Mailer v. Mailer, 390 Mass. 371, 374 (1983). Commonwealth v. O'Brien, 377 Mass. 772, 775 (1979). Dunn v. Commonwealth, supra. Model Code of Professional Responsibility, EC 4-6 (1969).
3. Waiver of right to an attorney with undivided loyalty. The Superior Court judge noted that the defendant has indicated a desire to waive representation by an attorney with undivided loyalty. A defendant's right to have the effective assistance of counsel, guaranteed by the Sixth Amendment to the Constitution of the United States, contemplates that the assistance be "untrammeled and unimpaired ... free of any conflict of interest and unrestrained by commitments to others." Commonwealth v. Davis, 376 Mass. 777, 780-781 (1978). Glasser v. United States, 315 U.S. 60, 76 (1942). A defendant, however, may waive this right to an attorney "unhindered by a conflict of interests." Commonwealth v. Connor, 381 Mass. 500, 504 (1980), quoting Holloway v. Arkansas, 435 U.S. 475, 483 n. 5 (1978). The ability to waive the right to a conflict-free attorney arises from (1) a criminal defendant's right to present his defense, with its corollary right of self-representation, and (2) his right to be represented by counsel of choice. Connor, supra,
The judge ruled that, although an argument can be made that the defendant's waiver may be voluntary, the defendant cannot make a "knowing and intelligent" waiver; because the information is privileged, the defendant cannot know what the information is and, therefore, cannot know how his defense will be affected. We think that this ruling is incorrect. The defendant need not know the exact content of the privileged communication to make an informed decision. Presumably, the defendant will be informed that Glenn's anticipated testimony is "diametrically opposed" to the privileged communication, and from that basis the defendant will be able to extrapolate any effect that Mr. Davis's constrained cross-examination will have on his defense.
Thus, the judge should require that the defendant receive a full disclosure of the conflict and its projected ramifications.
Finally, in a rare instance, in ruling on the validity of a defendant's waiver, the trial judge may take into account, aside from the rights of the defendant, the interests of the court in the "fair and proper administration of justice." Connor, supra at 504. Counsel's undivided loyalty to the client is crucial to the integrity of the entire adversary system. Commonwealth v. Leslie, 376 Mass. 647, 652 (1978), cert. denied, 441 U.S. 910 (1979). See id. at 656, 658 (Liacos, J., concurring); Kabase v. Eighth Judicial Dist. Court, 96 Nev. 471, 472 (1980); Developments in the Law, supra at 1394. In criminal cases, the public has a substantial interest in the fairness of the process and its expeditious administration. This principle, however, cannot, in most instances, overcome the right of a defendant to choose his counsel, even if that attorney is conflict-burdened, provided the defendant's waiver is voluntary, knowing, and intelligent. Thus, we conclude that the judge erred in answering the fourth reported question, "No." We hold that the defendant can waive his right to a conflict-free counsel in the circumstances of this case. Whether he will do so on being fully advised of his rights in accordance with the procedures and principles set forth in this opinion is unclear. We express no views whether the judge should exercise her discretion to override, in the interests of the administration of justice, such a waiver should it be exercised. Accordingly, we vacate the
The defendant also relies on United States v. Bump, 605 F.2d 548, 550-551 (10th Cir.1979). While at first the case appears to support the defendant's argument, it too is distinguishable. In Bump, a criminal defendant's attorney told the prosecutor that the defense intended to introduce certain evidence. When the defense then failed to introduce the evidence, the prosecutor asked the defendant on cross-examination whether he had "ever told anybody in connection with this case" about such evidence. The trial judge overruled defense counsel's objection to the question, which was based on the ground that the question invaded the attorney-client privilege. The Court of Appeals for the Tenth Circuit upheld the trial judge's action, ruling that "[w]hen a matter is communicated to the lawyer with the intention or understanding it is to be repeated to another, the content of the statement is not within the privilege." Id. at 551. The court continued: "Even if the privilege exists it is waived when the client voluntarily reveals the information to another or his attorney does so with his consent." Id. In the instant case Glenn is not expected to reveal details of his conversation with Mr. Davis; he will be testifying about events which fortuitously were a topic of that conversation.