On Point: 1. Attorney-Client

State v. Michele M. Ford, 2022AP187 & 2022AP188, 10/31/23, District I (one-judge decision; ineligible for publication); case activity

The takeaway from this procedurally convoluted case is that Ford succeeds in her appeal from an order finding her incompetent to stand trial in two misdemeanor cases. Specifically, the court reverses and remands for a “nunc pro tunc” competency hearing at which the circuit court will have to determine whether Ford was competent to proceed without relying on trial counsel’s statements to the evaluator, which the court holds violated the attorney-client privilege and amounted to ineffective assistance of counsel. (Op., ¶26).

State v. Anthony E. Henderson, 2013AP2515, District 1, 10/7/14 (not recommended for publication); case activity

If the trial court erred in excluding a witness’s attorney from testifying to information that would have impeached the witness, that error was harmless.

State v. Antonio D. Williams, 2013AP814; 6/3/14; District 1; (not recommended for publication); case activity

This appeal raises a host of issues but the most interesting concern the trial court’s decisions to: (1) prohibit defense counsel from cross-examining the State’s cooperating witnesses, all of whom were testifying in the hopes of receiving reduced sentences for themselves, about the maximum penalties they faced; and (2) allow the State to use a letter police found in an envelope marked “for my lawyer” to impeach Williams’s alibi witness.

State v. Demetrius M. Boyd, 2011 WI App 25; for Boyd: Rebecca Robin Lawnicki; case activity; Boyd BiC; State Resp.; Reply

Request for New Counsel

An indigent defendant doesn’t have the right to counsel of choice, but does have the right to counsel with whom he or she can communicate effectively. When an indigent defendant requests change of counsel,

Sampson v. Sampson, 2004 WI 57, reversing 2003 WI App 141, 265 Wis. 2d 803, 667 N.W.2d 831

Issue: “¶2 The question before this court is whether a lawyer’s voluntary production of documents in response to opposing counsel’s discovery request constitutes a waiver of the attorney-client privilege under Wis. Stat. § (Rule) 905.11 when the lawyer does not recognize that the documents are subject to the attorney-client privilege and the documents are produced without the consent or knowledge of the client.”

Holding:

¶4 We agree with the circuit court.

State v. Jeffrey J. Meeks, 2003 WI 104, overruling State v. Jeffrey J. Meeks,
For Meeks: Christopher T. Van Wagner

Issue: Whether the trial court, in ruling on competency, improperly relied on its perceptions of the defendant’s attorney in a prior case, in stressing that that attorney hadn’t raised competency.

Holding:

¶1     … 

Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification

Issue/Holding: The attorney-client privilege shields statements from attorney to client, such as billing records only to the extent that disclosure would “reveal[] the substance of lawyer-client communications.” ¶40. The undisputed record here shows that the sought billing records “contain detailed descriptions of the nature of the legal services rendered to [the client]. Producing the attorney billing records would,

Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification

Issue/Holding: A former officer and director of a corporation is not entitled to waive the corporation’s attorney-client privilege, even with regard to information generated during the person’s corporate tenure. Under the “entity rule,” the privilege belongs solely to the corporation, and only the corporation may waive it. ¶¶33-35.

Harold C. Lane, Jr., v. Sharp Packaging, 2002 WI 28, on certification

Issue/Holding: Although a mere allegation is insufficient, the burden for establishing a prima facie case of the attorney-client crime-fraud exception is low — reasonable cause (i.e., more than suspicion but less than preponderance-of-evidence) to believe that the attorney’s services were utilized in furtherance of the ongoing unlawful scheme. ¶50, quoting United States v. Chen,

In Re: A Witness Before the Special Grand Jury, 288 F.3d 289 (7th Cir. 2002)

Issue/Holding: Privilege between government lawyer and client — state agency — does not extend to criminal proceedings such as grand jury investigation.