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Keywords

lawsuitattorneydiscoveryappealtrialcivil lawwrit of mandamusattorney-client privilege
attorneydiscoveryappealtrialbailjury trialgrand juryattorney-client privilege

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In re von Bulow, 828 F.2d 94, 56 USLW 2177, 8 Fed.R.Serv.3d 897, 23 Fed. R. Evid. Serv. 862

Facts

Claus von Bulow was indicted for assaulting his wife, Martha, and after a highly publicized trial, he was convicted but later acquitted upon appeal. Following his acquittal, Martha's children initiated a civil lawsuit against him for various claims related to the same events. The case gained further complexity when an attorney published a book detailing the case, prompting the wife to seek discovery of communications between von Bulow and his attorney, claiming the book's publication constituted a waiver of attorney-client privilege.

On July 6, 1981 petitioner was indicted by a Newport County, Rhode Island, grand jury on two counts of assault with intent to murder for allegedly injecting his wife Martha von Bulow with insulin causing her to lapse into an irreversible coma. After a widely publicized jury trial, von Bulow was convicted on both counts on March 16, 1982. In April 1982 petitioner retained Harvard law professor Alan M. Dershowitz to represent him on appeal. In May 1982 von Bulow was sentenced to 30–years imprisonment, but granted bail pending appeal. On April 27, 1984 the Rhode Island Supreme Court reversed both convictions, State v. von Bulow, 475 A.2d 995 (R.I.), cert. denied, 469 U.S. 875, 105 S.Ct. 233, 83 L.Ed.2d 162 (1984), and upon retrial, he was acquitted on June 10, 1985.

Issue

Did the publication of a book by an attorney about a client's case waive the attorney-client privilege for all communications related to that case?

The Court of Appeals, Cardamone, Circuit Judge, held that: (1) mandamus properly lay to review district court's discovery order; (2) client who acquiesced in attorney's publication of book regarding details of prior representation, and who subsequently joined with attorney in actively promoting sales of book, was deemed to have waived attorney-client privilege as to any confidential communications disclosed in book; but (3) attorney's publication of book did not result in waiver of attorney-client privilege as to any undisclosed portions of such communications or as to any other related communications on same subject matter.

Rule

A client may waive attorney-client privilege through actions that imply consent to disclosure, but such waiver does not extend to undisclosed communications unless they are used in a judicial proceeding.

A client may waive attorney-client privilege through actions that imply consent to disclosure, but such waiver does not extend to undisclosed communications unless they are used in a judicial proceeding.

Analysis

The court found that von Bulow's actions in promoting the book indicated a waiver of privilege regarding the communications disclosed in it. However, it ruled that the waiver did not extend to other undisclosed communications, as the attorney-client privilege is designed to protect confidential communications unless the client has actively used those communications in a way that prejudices the opposing party.

The court found that von Bulow's actions in promoting the book indicated a waiver of privilege regarding the communications disclosed in it. However, it ruled that the waiver did not extend to other undisclosed communications, as the attorney-client privilege is designed to protect confidential communications unless the client has actively used those communications in a way that prejudices the opposing party.

Conclusion

The Court of Appeals granted the writ of mandamus, ruling that while von Bulow waived privilege for communications disclosed in the book, the waiver did not extend to other undisclosed communications.

Mandamus granted.

Who won?

Claus von Bulow prevailed in part, as the court recognized his waiver of privilege was limited to communications disclosed in the book and did not extend to all related communications.

Claus von Bulow prevailed in part, as the court recognized his waiver of privilege was limited to communications disclosed in the book and did not extend to all related communications.

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