Threats Made By Client Against Judge During Attorney-Client Communications Not Covered By Federal Attorney-Client Privilege

In United States  v.  Ivers, No. 19-1563 (8th Cir. July 23, 2020), the Eighth Circuit affirms the conviction of a defendant who allegedly made threats of violence against a federal judge. Some of the testimony admitted by the prosecution was from two lawyers assigned to represent the defendant in an insurance case by a court-based pro se assistance panel. The lawyers testified that during their representation, the defendant became agitated and at one point in a conversation even said of the federal judge “[y]ou don’t know the 50 different ways I planned to kill her.” (The lawyers communicated this information back to the coordinator of the pro se panel.)

Though the defendant argued that this threat was part of a confidential attorney-client communication and thus protected by attorney-client privilege (Fed. R. Evid. 501), the Eighth Circuit affirms admissibility on the ground that the communication was not made “for the purpose of obtaining legal advice about his pending lawsuit against an insurance company and are not protected by the attorney-client privilege.” In general, the panel holds, such communications are meant “to harass, intimidate, coerce, warn, or frighten the intended victim of the threat or a person who hears the threat,” rather than to elicit legal advice. While some of the conversation was held to be protected by privilege, the part of the “call in which [defendant] was actually receiving legal advice is easily severable from the second part of the call, in which [defendant] ranted about and threatened [the judge].”

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