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Keywords

attorneytrialaffidavitgrand juryattorney-client privilegework-product doctrine
attorneytrialaffidavitattorney-client privilegework-product doctrine

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In re Grand Jury Investigation, 437 Mass. 340, 772 N.E.2d 9, 167 Ed. Law Rep. 388

Facts

The case arose from a grand jury investigation into whether a private school failed to report possible child abuse as mandated by G.L. c. 119, § 51A. The headmaster was informed of allegations of sexual abuse by students in March 1999, leading to an internal investigation. The school withheld certain documents from the Commonwealth, claiming they were protected by attorney-client privilege and the work-product doctrine. The Commonwealth moved to compel production of these documents, resulting in a civil contempt judgment against the school when it refused to comply.

In early March, 1999, the school's headmaster was confronted in rapid succession with a series of disclosures about alleged student-on-student physical and sexual abuse.

Issue

Did the attorney-client privilege protect the internal investigative reports of alleged abuse, and did the crime-fraud exception apply to the withheld documents?

The Supreme Judicial Court, Marshall, C.J., held that: (1) attorney-client privilege did not apply to internal investigative reports of alleged abuse; (2) on an issue of first impression, trial court's reliance on allegations in Commonwealth's ex parte affidavit was not an abuse of discretion; and (3) crime-fraud exception to attorney-client privilege applied to some of the disputed documents but not to others.

Rule

The attorney-client privilege does not apply to communications that seek assistance in furtherance of future criminal conduct, and the crime-fraud exception can negate the privilege if applicable.

Under the crime-fraud exception, the attorney-client privilege does not extend to client communications 'if the communication seeks assistance in or furtherance of future criminal conduct.'

Analysis

The court determined that the internal investigative reports were not protected by attorney-client privilege because the school officials were mandated reporters under § 51A and had an obligation to report suspected abuse. The court also found that the trial court's reliance on the Commonwealth's ex parte affidavit was not an abuse of discretion, and that the crime-fraud exception applied to some of the disputed documents, as they related to potential future criminal conduct.

We determine, first, that the judge was correct to conclude that neither the attorney-client privilege nor the work-product doctrine attaches to one class of disputed documents, the internal investigative reports of alleged student-on-student abuse that the school conducted in April, 1999.

Conclusion

The court affirmed the contempt judgment in part, vacated it in part, and remanded the case for further proceedings consistent with its opinion.

We affirm the contempt judgment in part and vacate it in part.

Who won?

The Commonwealth prevailed in part because the court ruled that the attorney-client privilege did not apply to the internal investigative reports and that the school had a legal obligation to report suspected abuse.

We affirm so much of the contempt judgment as applies to attorney-client communications concerning the school's internal investigation and to any other communications concerning the possible abuse of other children at the school who were under the age of eighteen years when the school learned of their allegations.

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