Court sustains attorney-client privilege

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The presence of a client’s union representative does not destroy the attorney-client privilege, the Seventh Circuit held on April 23.

But attorneys should be wary of their presence in future cases, nonetheless.

In 2002, Jon Bartlett, a Milwaukee police officer, shot and killed an escaping suspect who car-jacked a vehicle and attempted to run him over, launching Bartlett onto the vehicle’s hood.

After the shooting, Bartlett was taken to headquarters and an internal investigation was begun. Per department custom, Bradley DeBraska, the police liaison officer for the city and president of the police union, was contacted.

DeBraska and a union lawyer, Jonathan Cermele, met Bartlett at headquarters. Debraska gathered information and advised Cermele, as Cermele prepared to represent Bartlett during his interview with Internal Affairs.

The investigation resulted in a conclusion that Bartlett did not violate any MPD policy, and the district attorney found no basis to file criminal charges against Bartlett.

However, the estate of the suspect filed a Section 1983 action against Bartlett in federal court, alleging excessive force.

The estate sought to call Debraska and Cermele as witnesses. Bartlett objected, asserting attorney-client privilege and work product protection.

The district court held that DeBraska’s presence during Bartlett’s conversations with Cermele did not destroy the attorney-client privilege, because DeBraska was acting as Cermele’s agent.

After the jury returned a verdict in favor of Bartlett, the estate appealed, but, reviewing for clear error, the Seventh Circuit affirmed, in a decision by Judge Kenneth F. Ripple.

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At the evidentiary hearing, DeBraska had testified that it had been custom since the 1960s for a person in his position to come to the police station after an officer had been involved in a shooting to assist the officer’s attorney in providing legal services to the officer, by gathering information and assuring that the attorney’s representation followed department rules.

While the presence of a third person generally destroys the privilege, there is an exception for the presence of an agent assisting the attorney in rendering legal services.

The estate argued that the exception is limited to those who would be considered agents of the attorney under the law of master and servant, but the court rejected the limitation.

The court noted that, in addition to agents such as paralegals, it applies to outside experts as well, such as accountants, who could not be regarded as traditional agents.

Applying the broad definition of agent, the court concluded that the district court did not err in holding that DeBraska was an agent.

The court noted that Bartlett presented testimony that DeBraska was there solely to assist Cermele, and the estate offered no testimony to contradict this evidence.

Accordingly, the court affirmed.

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David Ziemer can be reached by email.