The majority opinion found on Tuesday that the Cobb County Superior Court didn't abuse its discretion in deciding that Derek Burns' jailhouse calls to his then-attorney weren't covered by attorney-client privilege, because they weren't "made for the purpose of getting or giving legal advice." Burns had sought to overturn his conviction because a detective and a prosecutor listened to the calls.
"This is a dangerous precedent that will make it possible for the government to use communications between attorneys and their criminal defendant clients when there are factual discussions that do not appear directly related to the giving or getting of specific legal advice," said John Ghose, special counsel at Baker Donelson Bearman Caldwell & Berkowitz PC and a former federal prosecutor.
"The attorney-client privilege is an old and sacred privilege, particularly in the context of criminal cases, and it was never meant to be construed that narrowly," said Ghose, who reviewed the case but didn't represent either party in the matter.
The majority opinion found that Burns' calls to Daniel Daugherty, who represented him briefly in seeking bond, are not covered by the privilege.
"These were — essentially — procedural, scheduling matters about which Daugherty's advice was neither sought nor rendered," the majority opinion said.
Justice Shawn Ellen LaGrua wrote the majority opinion, joined by five other justices, while Justice Charles J. Bethel concurred in judgment only. The majority opinion drew a dissent written by Justice Carla Wong McMillian, who was joined by Justice Sarah Hawkins Warren.
Justice McMillian said that although the majority opinion describes the calls as procedural and not legal advice, the purpose was legal representation about getting out on bond.
"It is difficult to see why Burns's outgoing calls to Daugherty and asking questions about when the bond hearing would be set so he could be released from custody would not be for the purpose of obtaining legal advice on how to get released on bond, at least from Burns's perspective," Justice McMillian said.
In the dissent, Justice McMillian said that while she raises doubts about the majority opinion, she said she doesn't think reversal is fitting either. She said she would vacate the Court of Appeals decision and remand the case to superior court "to reconsider whether the communications were for the purpose of obtaining legal advice."
Justice McMillian said that the trial court's factual findings were inconsistent. For example, the trial court said no privileged information was discussed, although during one of the calls, Burns mentioned his concern for another case — not the case he was in jail for — and Burns said Daugherty was only representing him to make bond in this case.
"I do not see that a reversal is required at this juncture given the conflicting findings of the trial court, which make it difficult to determine whether the trial court abused its discretion," Justice McMillian said.
In his appeal filed in April, Burns asked the state's justices to reverse the state's Court of Appeals decision and remand his case to superior court with orders to set aside his convictions related to the assault and have the indictment dismissed.
Counsel for Burns, Matthew Kyle Winchester of the Law Offices of Matthew K. Winchester, told Law360 Pulse that the majority opinion from the state's high court "got it wrong." In response, he said he plans to file a motion for reconsideration this month, calling it a last chance "to point out errors" and sway the state's high court.
Winchester said that he thinks the majority decision has "construed confidential communications too narrowly."
"The opinion today essentially holds that conversations related to the representation are not protected by the attorney-client privilege and that the privilege only protects communications directly in furtherance of the representation," Winchester said on Tuesday. "I think that is splitting the hairs very finely. It is slicing it too thin."
While Daugherty didn't use the Cobb County jail's system of requesting that his number be blocked from recording, Winchester said that his conversation should still be considered privileged.
"He made a mistake, but that doesn't undermine the confidentiality of the communications he had and it doesn't undermine the knowledge that the government's agents had when they intentionally listened to calls they knew were between a client and a lawyer," Winchester said.
Three legal experts who didn't represent either party in the matter weighed in on the state's high court's decision and dissent.
Elizabeth Taxel, clinical assistant professor and criminal defense practicum director at University of Georgia School of Law, told Law360 Pulse that she was disappointed and troubled about the majority decision. Taxel said she thinks there were intentional intrusions to listen to privileged calls between Burns and his then-attorney.
"I have concerns that there may be far-reaching implications on whether prosecutors feel justified in intentionally invading private communications between lawyers and their clients," Taxel said.
Taxel, who served as a public defender in DeKalb County for a decade before joining the law school in August 2020, said that the majority opinion "dangerously" narrowed what is considered privileged communications to getting or giving legal advice.
"I just don't think that is an accurate definition of what implicates the attorney-client privilege," Taxel said.
The majority opinion said that the state's high court found in St. Simons Waterfront LLC v. Hunter Maclean Exley & Dunn PC in 2013 that for the privilege to cover communications, they must be made for the purpose of asking or giving legal advice. The St. Simons Waterfront matter was an appeal stemming from a suit over alleged legal malpractice, breach of fiduciary duty and fraud, according to court documents.
Further, the majority opinion also pointed to another matter stemming from a legal malpractice suit, saying that the state court found in Hill Kertscher & Wharton LLP v. Moody in 2020 that "the privilege is narrowly construed, because its application operates to exclude evidence and thus to impede the search for the truth."
Taxel said that she thinks key differences between civil and criminal cases are relevant here. For instance, in a criminal case, there is a requirement to protect a defendant's constitutional rights.
Ghose told Law360 Pulse in a statement that he was surprised that the majority opinion found that Burns and Daugherty's calls weren't covered by attorney-client privilege.
"The calls involved discussions between Burns and his defense attorney in which they discussed a strategy for how to get Burns released from jail on bond," Ghose said. "When an attorney and his client are discussing how to achieve a result (release on bond) through legal process (scheduling a hearing, moving for release, and arguing for a factual and legal basis for bond), clearly that communication should be considered an attorney-client privileged communication, in my view."
Ghose said while there's question as to if the privilege was waived because Burns and Daugherty knew their calls were being recorded, the majority opinion didn't affirm on that ground. The majority said the calls weren't giving or getting legal advice and therefore weren't covered.
But Richard Waddington, counsel at Chandler Law LLC in Alpharetta, Georgia, told Law360 Pulse that he doesn't think the majority opinion is particularly controversial, given the case law. Still, though, he said it's a conservative reading.
"I think a more liberal court may have taken a more expansive view on what constitutes legal advice," Waddington said. "I think this panel took a very narrow view of what constitutes legal advice."
Waddington said he thinks the majority opinion deferred to the trial court's factual findings.
"That's a finding that's pretty hard to disturb," Waddington said. "The finder of the facts are generally given great weight by the appellate courts."
The majority opinion was supported by Chief Justice Michael P. Boggs and Justices Nels S.D. Peterson, John J. Ellington, Verda M. Colvin and Andrew A. Pinson.
Counsel for the state didn't respond to Law360's requests for comment.
Burns is represented by Matthew K. Winchester of the Law Offices of Matthew K. Winchester.
The state of Georgia is represented by Flynn D. Broady Jr. and Linda J. Dunikoski of the Cobb County District Attorney's Office.
The case is Derek Burns v. the State of Georgia, case number S23G1192, in the Supreme Court of Georgia.
--Editing by Michael Watanabe.
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