Case Study:
In the fall of 1991, the victim, an administrator and teacher at New Hampshire Technical College in Nashua, began a consensual sexual relationship with the defendant, a student at the college. In July 1992, the victim informed the defendant that their relationship was over. In response, the defendant came to the victim’s home and, after promising that he just wanted to talk to her, sexually assaulted her. In September 1992, the defendant telephoned Judith Parys, a lawyer and his paralegal instructor at the college, and, crying, told her that he had had a relationship with the victim and “that things had gone wrong and that it was a mess.” He told Parys that he was afraid the victim would have him removed from the college. Later the same day, the defendant called Parys again. He told her that “he had called [the victim] and, much to his surprise, that she had agreed to talk to him on the phone, … and that he didn’t have to tie her up.” In October 1992, the defendant, who was shaking and looked like he had been crying, approached Parys after she finished teaching a class and told her that he had looked up the definition of rape in the New Hampshire statutes. He said that, based on the definition, “he was sure that he had raped [the victim] in the past.” The defendant was later charged with four counts of aggravated felonious sexual assault and one count of attempted aggravated felonious sexual assault. Before trial, he filed a motion in limine* to bar Parys from testifying against him, asserting that his communications with her were protected by the attorney–client privilege. The trial court denied the motion. The defendant was convicted on one count of aggravated felonious sexual assault. Justice Broderick delivered the opinion of the court: The defendant, Steven Gordon, was convicted of aggravated felonious sexual assault after a jury trial in Superior Court. In separate but consolidated appeals, the defendant argues that the trial court erred in admitting into evidence allegedly privileged statements he made to an attorney instructor …. We affirm. The defendant argues that the trial court erred in denying his motion to exclude Parys’ testimony based on the attorney–client privilege. It is generally recognized that “[a]n attorney–client relationship is created when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.” Here, the burden of proving the existence of an attorney–client relationship lies with the defendant. The defendant conceded at oral argument that he sought no legal advice in the September 1992 phone conversations. Consequently, we need look only at the October 1992 conversation at the college to determine whether an attorney–client relationship was established and, hence, whether the attorney–client privilege applies to that conversation. At the hearing on the motion in limine, the trial court heard conflicting testimony on the question of whether the defendant’s conversation with Parys at the college established an attorney–client relationship. The defendant maintained that Parys told him “to go look in the [code] and, when he returned, she advised him to “back off and give [the victim] her space.” Additionally, he contended that Parys offered to “make some phone calls and get back to [him].” Parys’ version of the conversation was quite different, however. She contended that the defendant informed her that “he had gone to the [code] in the law library, had looked up the definition of ‘rape,’ and believed that he had raped [the victim].” Rather than offering legal advice, Parys testified that because of the defendant’s “rambling,” she “didn’t have a chance to get a word in edgewise.” The credibility of witnesses is a factual determination within the sound discretion of the trial court. “[U]nless we find that no reasonable person could have come to the same conclusion,” we defer to the trial court’s credibility determination. State v. Crotty, 134 N.H. 706, 711, 597 A.2d 1078, 1082 (1991). The trial court’s determination that the defendant “did not … seek advice from Parys in her legal capacity” is adequately supported by the record. Parys testified that the defendant sought “absolutely no legal advice” and that she gave none. Additionally, she testified that she informed her classes—some of which the defendant attended—that she did not give legal advice and that she believed to do so could violate the Rules of Professional Conduct. Even the defendant’s own testimony does not support his argument that he sought legal advice from Parys in her capacity as an attorney. At the hearing on the motion in limine, the defendant read into the record his testimony from an earlier proceeding that when he spoke to Parys, he thought he was “talking to somebody in confidence. You tell somebody that you trust or that you’re friendly with things that you wouldn’t just openly stand out there and say….” Speaking in confidence is not enough; “where one consults an attorney not as a lawyer but as a friend or as [an] … adviser … the consultation is not professional nor the statement privileged.” Moreover, the defendant’s conduct at two earlier proceedings, which the trial court considered in its ruling, does not support the existence of the privilege he now seeks to invoke. Prior to the defendant’s trial, Parys twice testified— at a hearing on a domestic violence petition filed by the victim against the defendant and at a judicial review board hearing at the college—about the conversations she had with the defendant in September and October 1992. According to the defendant’s testimony at the hearing on his motion in limine, at the domestic violence hearing Parys indicated that she did not represent either party; the defendant apparently did not object. At the judicial review hearing, the defendant remarked about Parys: “I realize she’s an attorney, but she’s here as a witness. If she wants to play attorney, then she should represent somebody.” “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client ….” N.H. R. Ev. 502(b). Because the defendant never established an attorney–client relationship with Parys, however, he cannot now assert the privilege as a shield against the admission of Parys’ testimony. Affirmed. All concurred.
Q1. The authors of this book are attorneys. And though we are writing about the law, we do not intend to give specific legal advice to any students or other readers. Your class instructor is also likely to be an attorney. If you ask a question in class about a legal problem, or if you discuss a legal dilemma you are currently facing in a conversation with your instructor, does the attorney–client privilege arise?
Q2. Who holds the attorney–client privilege—the attorney or client or both? Why?
Q3. What additional facts might have led the court to believe a privilege existed?
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.