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August 2004
Volume XXX, Number 4 (PDF version)

President’s Page:
Justice Denied; Innocence Ignored; Innocents Imprisoned
The Consequences of ‘the Presumption of Guilt’ in Virginia’s Indigent Defense System
E. Tazewell Ellett

Legal Focus/Indigent Defense:
‘Nothing less than what all Virginians deserve’
Richard C. Goemann’s remarks at the news conference introducing the Virginia Indigent Defense Commission

Virginians say strong defense matters
Results of Commonwealth Poll on indigent defense released

Legal Focus/Attorney-Client Privilege:
The Applicability of the Attorney-Client Privilege and the Work Product Doctrine to Investigators and Experts: The Horrendous State of the Law in Virginia
Professor James Joseph Duane

The 114th VBA Summer Meeting (see PDF for photos and news)

Across the Commonwealth
VBA projects receive Virginia Law Foundation grants for 2004-05 • Mediation programs planned for September • Nominations sought for VLF Fellows Class of 2005 • Robert Grey becomes ABA president • Celebrate John Marshall’s birthday with family fun next month in Richmond

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President’s Page:
Justice Denied; Innocence Ignored; Innocents Imprisoned
The Consequences of ‘the Presumption of Guilt’ in Virginia’s Indigent Defense System
E. Tazewell Ellett

“Worst,” “last,” “lowest,” “unfair,” “illogical.” As an aviation lawyer with virtually no contact with the criminal justice system since my judicial clerkship days more than 25 years ago, I am stunned by what I am hearing from multiple, very credible sources about the condition of Virginia’s indigent defense system.

What are the problems with Virginia’s indigent defense system? What happened? Where did things go wrong? And why?

The adjectives listed above provide broad, subjective assessments of the system, but what are the hard facts? Luckily, there have been several detailed studies of Virginia’s indigent defense system, all of which ended up with virtually the same conclusions. Below is a sampling of the findings of the most recent such study, “A Comprehensive Review of Indigent Defense in Virginia (January 2004)” by The Spangenberg Group:

• Virginia’s indigent defense system fails to adequately protect the rights of poor people who are accused of committing crimes.

• The deeply flawed system puts lawyers at substantial risk of violating professional rules of conduct when representing indigent defendants.

• There is no official state entity that effectively advocates for indigent defense needs in Virginia. No governmental entity serves as a voice for indigent defense: not the Public Defender Commission, not the State Bar, not the Supreme Court, not the Executive Branch and not the General Assembly.

• Court-appointed attorneys and public defenders make very limited use of expert witnesses and court-appointed lawyers make very little use of investigators, services that are essential to proper representation of clients in many cases.

• Substandard practice has become the accepted norm in Virginia’s indigent defense system.

• Virginia ranks last in average indigent defendant cost per case among a group of 11 states for which such data was collected for FY 2002 (the states of Alabama, Colorado, Georgia, Iowa, Maryland, Massachusetts, Missouri, North Carolina, Ohio, Virginia and West Virginia).

• The unwaiveable statutory fee caps for court-appointed counsel in Virginia are the lowest in the country.

• The unreasonably low statutory fee caps act as a disincentive to many assigned counsel from doing the work necessary to provide meaningful and effective representation to their indigent clients.

• In addition to the problems stemming from low pay, there are numerous systemic deficiencies with the assigned counsel system in Virginia that result in the failure of court-appointed lawyers to provide adequate representation to indigent defendants.

• The lack of oversight and administration permits a small number of attorneys to receive a disproportionate number of appointed cases, raising serious concerns over the quality of representation provided to their clients.

• The Virginia public defender system is greatly over-burdened and substantially under-resourced.

• There is great disparity in resources afforded to public defenders and Commonwealth’s attorneys.
The Virginia Indigent Defense Coalition also has studied this system at length. According to the Coalition:

• When a poor person in Virginia is given a court-appointed lawyer, the lawyer assigned may not have the knowledge, experience, or training to handle the case.

• A court-appointed attorney in Circuit Court is paid a maximum of $132 for a misdemeanor punishable by confinement, $1,096 for a felony punishable by more than 20 years confinement, and $395 for all other felonies.

• In General District Court and juvenile cases, attorneys receive up to a maximum fee of $112 per charge.

• These low fees create an incentive for lawyers to encourage early guilty pleas, and there is no incentive for a lawyer to do thorough investigation, hire experts, or conduct legal research.
The American Bar Association has developed and published “Ten Principles of a Public Defense Delivery System” as a recommended set of minimum standards for state public defense systems. Applying these “Ten Principles” to Virginia’s indigent defense system, the Virginia Indigent Defense Coalition gives the Virginia system the following grades: one A, one B, two Cs, five Ds, and one F.

How could we have let such an indigent defense system develop in Virginia? Is it that Virginians simply do not care about the poor and how they are treated in our criminal justice system? I really do not think that is the answer. It seems to me that Virginians of our generation, just like those of previous generations, value highly the rights of citizens, rich and poor, and care deeply about the treatment of citizens by their government, including the manner in which they are treated in the criminal justice system.

I believe that the answer lies elsewhere. I would suggest that the indigent defense system in place in Virginia today is the logical political result of some Virginians apparently (1) believing that criminals are entitled to far less protections in the criminal justice system than the average citizen, and (2) presuming that those indigents caught up in the system are in fact guilty of committing the crime with which they are charged. Among these Virginians there appears to be little desire to “waste” government resources to ensure fairness in the prosecution, and adequacy in the defense, of someone known to have committed the crime. And since these Virginians presume that indigents who are charged actually committed the charged crime, there is little desire to provide the resources necessary to correct the known and blatant deficiencies in the indigent defense system.

One member of the General Assembly has explained that the legislature’s failure to take action to correct the problems in Virginia’s indigent defense system results from “a lack of sympathy for the criminal constituency” (emphasis added). I think this may fairly accurately describe not only the legislature’s position, but also the views of many of the citizens who elect the members of the General Assembly. Indigents who are accused of committing a crime are automatically viewed as a “criminal constituency” not worthy of the protections we provide to the average citizen. So why bother fixing the system set up to defend these people?

If this belief and presumption correctly explain the persistence of the serious deficiencies in Virginia’s indigent defense system, I believe it is time for those who subscribe to this belief and presumption to take a closer look. While I am not prepared to say that known criminals should have all the rights and privileges of the average citizen, I think it strikes at the very heart of the fundamental American and Virginian principles of protecting individual rights and limiting the power of government to suggest that even a known criminal should not be entitled to a fair and just prosecution and an adequate and just defense. As Judge William Young put it so aptly in his statement sentencing Richard Reid, the notorious “Shoe Bomber”:

It is because we prize individual freedom so much that you are here in this beautiful courtroom. So that everyone can see, truly see, that justice is administered fairly, individually, and discretely. It is for freedom’s sake that your lawyers are striving so vigorously on your behalf and have filed appeals, will go on in their representation of you before other judges. We are about it because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties. (Emphasis added.)

With respect to the notion of presuming that indigents charged with a crime are guilty of committing that crime, I have many concerns. First, the legal presumption of innocence in criminal cases, a hallmark of Anglo-American jurisprudence, is completely vitiated if a “political” presumption of guilt results in the creation of an indigent defense system structured so that (1) the prosecution is so understaffed and underfunded that it cannot or will not expend the investigative resources necessary to properly satisfy itself that the defendant actually committed the crime, and (2) the defendant is deprived of the type of legal representation and other tools and resources necessary to adequately demonstrate his innocence.

Second, the notion that, from a political perspective, we presume poor people to be guilty of crimes they are charged with, when we do not do so for people of means, is government abuse of the worst sort. Such a notion should infuriate every citizen of Virginia. As the late Justice Lewis F. Powell Jr. said:

Equal justice under law is not merely a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal in our society. It is one of the ends for which our entire legal system exists. It is fundamental that justice should be the same, in substance and availability, without regard to economic status. (Emphasis added.)

Third, such a presumption is just dead wrong factually. Intuitively we know that such a blanket presumption must be wrong, but luckily we do not have to rely on our intuition on this point. We know that indigents and others have been charged, convicted, and imprisoned in Virginia even though they later have been proven to be innocent. In a press release issued on June 30 of this year the newly established Indigent Defense Commission stated:

In recent years, Virginia has discovered seven innocent people who together had been sentenced to one death sentence, four life sentences and a total of 337 years in the penitentiary.

In addition, the Innocence Commission for Virginia is currently investigating cases of known wrongful conviction in Virginia in order to understand the factors that led to conviction and to recommend reforms to make the system more accurate. The final report of the Commission, expected this fall, will add to the body of evidence refuting the notion that all indigents charged with a crime are guilty of committing it, and hopefully will also help us better understand this known phenomenon of innocent people being charged, convicted, and imprisoned in Virginia. While we have a number of documented cases of this phenomenon, if we are intellectually honest about it, we are going to have to face the strong likelihood that there are many more such cases we do not know about.

The consequences of a seriously deficient indigent defense system in Virginia are extraordinarily serious and troubling. Limitations which impede the ability of both the prosecution and defense counsel to produce thorough, quality work, raising serious questions about whether the trial process and the result are just. Innocent people charged, prosecuted, convicted, and imprisoned when their only “crime” was being poor. Innocent lives ruined, and families and friends deprived of the company and support of their loved ones. Criminals (some quite dangerous) left free on the streets, possibly to strike again. State government monies completely wasted because of charging, prosecuting, and imprisoning the wrong person. Loss of credibility of Virginia’s criminal justice system, leading to a loss of faith in, and support of, the system by the public. Serious harm to the reputation of the Commonwealth, and impediments to the state’s commendable efforts to create and project a positive environment as a means of attracting businesses and skilled workers.

The Virginia Bar Association’s position on this issue is set forth in the following resolution:

The Virginia Bar Association agrees with the conclusion of the studies that have determined that Virginia’s indigent defense system contains fundamental deficiencies and is deeply flawed, and believes that this system requires extraordinary remedial efforts on the part of the Governor, Lieutenant Governor, Attorney General, General Assembly, and Judicial Council of Virginia.

In my view, the current system of indigent defense in Virginia functions as a serious form of government tyranny. I believe Kafka would have found fertile ground for his pen had he had the opportunity to observe this system. In it, we line up the government’s powers and resources against the poorest of our society. We apply these powers and resources to charge, prosecute, and imprison innocent people, while systematically depriving prosecutors the resources to properly satisfy themselves that these people actually committed the crime, and depriving those charged of the type of legal representation and other tools and resources necessary to adequately demonstrate their innocence.

If our policy is going to be that we are tough on those who commit crimes, that is fine, but let’s make sure the people we are dealing with actually committed the crime before we start being tough on them. I believe that we should not apply the powers and resources of the government to prosecute an indigent and deprive him of his liberty (and possibly his life) unless and until we are prepared to provide to prosecutors the resources needed to adequately investigate whether the indigent committed the crime, and to the indigent the legal representation, resources, and processes necessary to ensure that he has a fair opportunity to demonstrate that he is innocent. That does not happen in Virginia’s indigent defense system today.

In a very real way, you and I and every other taxpayer in Virginia are providing the resources to fund this form of government tyranny. For that reason alone, I think we have a solemn obligation to do something about it.

It is time for all Virginia lawyers – not just those involved in the criminal justice system, but also those of us who practice in other areas of the law – to open our eyes, review the facts, and weigh in on this matter.

The General Assembly took a giant step forward this year when it passed legislation creating the new Virginia Indigent Defense Commission, which will be responsible for providing oversight and support for all attorneys who provide indigent defense representation in Virginia, both public defenders and members of the private bar. The General Assembly, and particularly the legislators who led this effort, should be sincerely thanked and applauded. But the fact of the matter is that, for the foreseeable future, the indigent defense system in Virginia will remain seriously deficient.

The creation of the Indigent Defense Commission is an excellent first step, but if the journey toward reform ends there, it will be a tragedy. The Commission has no power to change laws in place which, in practical effect, virtually assure inadequate representation of indigents. The Commission has no authority to provide adequate funding to address the problems. Both prosecutors and defenders need adequate resources, and there needs to be more parity between the two. Patently absurd fee caps need to be eliminated. Caseloads need to be reduced. Appropriate standards for indigent defense need to be developed and mandated, and indigent defense counsel need to be given the time, the training, and the resources to provide an adequate defense to indigent defendants.

Our state government and our citizens need to be told in no uncertain terms that the current system is absolutely unacceptable, especially in a state that prides itself on standing up for the rights of the people against government tyranny. They also need to be told that such a defenseless, unjust system is poisonous to the Commonwealth’s efforts to create and project a positive environment where companies want to come and set up their businesses, and people want to live and work.

This is not a “sit on the sidelines” issue for Virginia lawyers. It is an issue that will define the type of state we are, and serve as the measure of our profession’s leadership in this generation.

I urge you to conduct your own assessment of the facts. If you determine that the system is acceptable, then by all means say so. But if you agree with me that this system is a form of 21st-century government tyranny, please join me, and The Virginia Bar Association, in speaking out to reform it. When Virginia lawyers do nothing in the face of such a tyranny, they contribute to it, whether they mean to or not. For me, that is not an option.

Sic Semper Tyrannis! Return to Top

Legal Focus/Indigent Defense:
‘Nothing less than what all Virginians deserve’
Richard C. Goemann’s remarks at the news conference introducing the Virginia Indigent Defense Commission

The following remarks were delivered by Richard Goemann at the news conference introducing the Virginia Indigent Defense Commission on June 30 at the John Marshall Courts Building in Richmond.

Earl Washington, Marvin Anderson, Julius Ruffin. Victims of a criminal justice system that failed in its duty to protect the innocent and failed to protect the community from those who were truly guilty. Living proof that cheap defense threatens individual liberty and public safety.

Virginians deserve better. Virginians deserve a balanced criminal justice system that protects: protects fairness, protects victims and the community, and protects the truth, ensuring that the innocent are set free and that only the guilty are punished. Today we take a major step closer to providing Virginians with just such a criminal justice system.

The 2004 General Assembly, in an overwhelming bipartisan effort, strengthened our criminal justic system by creating an independent oversight commission for Virginia’s indigent defense function. The creation of the Virginia Indigent Defense Commission marks the beginning of our efforts to bring Virginia into compliance with the American Bar Association’s Ten Principles of a Public Defense Delivery System, which, on February 21, 2004, were officially adopted for Virginia by the Virginia State Bar.

Our new Commission will be responsible for providing oversight and support for all attorneys who provide this core state service, both public defenders and members of the private bar. We will provide training, set standards, and enforce caseload limits, all in an effort to make sure that Virginia’s criminal justice system protects the victim, the accused and, indeed, the entire community.

The Commission will also provide, for the first time, a unified defense voice to advocate for resources and reform in the criminal justice system. We will be available to provide information to legislators, be a liaison with other state agencies, and be a resource for the public. We will also reach out to the courts and Commonwealth’s Attorneys as partners in justice to advocate for improvements and resources.

There is still much to be done. The ABA Principles and other national standards require us to work to lower caseloads, create parity in resources and salaries between prosecutors and defenders, abolish the caps on fees paid to the private bar, and work to assure that all defense counsel have the ability, training and experience required by the complexity and seriousness of the cases they handle.

As a former court-appointed attorney and public defender, I know from firsthand experience the challenges that confront our attorneys everyday. I also know that many of these attorneys work tirelessly to overcome those challenges. It is the thought of working for those men and women — and their clients — that makes this such an exciting opportunity for me. I know they want to provide their clients with high-quality legal representation, and I look forward to doing everything I can to provide them with the resources, training and support they need to do just that.

The creation of the Virginia Indigent Defense Commission is a giant step forward. But we must not be satisfied with this first step: we must continue the hard work that is necessary so that our criminal justice system protects all who come before it. A criminal justice system based on fairness and truth is nothing more than what the Constitution requires and nothing less than what all Virginians deserve. Return to Top

Virginians say strong defense matters
A majority of Virginians favor providing legal representation to people who cannot afford a lawyer and believe it is important to have fair courts and a fair and efficient criminal justice system, according to the results of a recent statewide public opinion poll.

The Commonwealth Poll, which was conducted in April by Virginia Commonwealth University’s Center for Public Policy, found that Virginians strongly believe that the amount of money spent for legal representation makes a great deal of difference in the quality of representation. Those polled also believe that the quality of legal representation influences the outcome of the case.

“Virginians clearly want a fair judicial system that treats the poor and the rich the same,” said Matthew Geary, an attorney in private practice in Richmond who accepts court-appointed cases and the president of the Virginia Indigent Defense Coalition (VIDC) which commissioned the poll. “The problem is that Virginians also believe you get what you pay for and in the Commonwealth we pay court-appointed lawyers less than in any other state in the country. That certainly raises the question — are Virginia’s indigent defendants adequately and fairly represented?”

The poll also revealed that a major of Virginians consider issues related to the courts and the criminal justice system to be near the top of their priorities. “Those of us who are involved in or affected by the indigent defense system know that improving the system is a top priority,” said Geary. “This poll shows most Virginians agree with us.”

In January, the American Bar Association conducted a comprehensive statewide study of Virginia’s indigent defense system that found “Virginia’s indigent defense system fails to adequately protect the rights of poor people accused of committing crimes.” The study also found that the two primary factors for the failure are “inadequate resources and an absence of an oversight structure.”

“The Commonwealth Poll results show that Virginians support a quality indigent defense system and ultimately fairness in the system. I think that encompasses not only quality defense for indigent defendants, but also greater fairness and reliability for everyone in the criminal justice system,” said James Hingeley, vice president of VIDC and the public defender for Charlottesville and Albemarle County. “It is time to make Virginia’s indigent defense system the best in the country and one that is fair for all Virginians regardless of their income.”

The Commonwealth Poll’s telephone survey was conducted by the VCU Center for Public Policy between March 31 and April 7. The survey interviewed 812 respondents across the state. The margin of sampling error is plus or minus four percentage points.

For more information about the Commonwealth Poll, contact Cary Funk, Virginia Commonwealth University School of Government and Public Affairs, at (804) 827-1430. — From news releases Return to Top

Legal Focus/Attorney-Client Privilege:
The Applicability of the Attorney-Client Privilege and the Work Product Doctrine to Investigators and Experts: The Horrendous State of the Law in Virginia
Professor James Joseph Duane

The Holding in Via
The essential facts as found by the court of appeals were as follows.2 The defendant, Eldridge Via, was accused of sexually abusing one of his adopted daughters. He maintained that the allegations were fabricated by her to get him out of the house, so he could no longer restrict her from seeing her boyfriend. In preparation for trial, the defense lawyer hired Dr. Conley, a psychologist, as an expert to interview the defendant, his wife, and their daughter, and to assist in evaluating the complainant and to suggest defense theories for trial. Neither the Commonwealth nor the court of appeals disputed that Dr. Conley was hired by the defense lawyer to assist him in preparation for trial.

Although the opinion of the court of appeals does not say so, Dr. Conley obviously also performed the quintessential work of an investigator by obtaining statements from the key witnesses in the case. (Experts do not always perform that function, but they often do.) Any investigator worth his salt will make it his top priority in every case to collect statements from all the key witnesses who are willing to be interviewed.

After Dr. Conley met with the defendant and his wife and the complainant, two astonishing things happened. First, even though Dr. Conley was not designated as an expert who would be testifying at trial, the prosecution served him with a subpoena duces tecum, demanding copies of his entire file.3 Even more incredibly, after the defendant objected on the obvious grounds of attorney-client privilege and work product, his motion to quash the subpoena was denied. In a ruling that should come as a shock to virtually every member of the bar, the Commonwealth was allowed, even before trial had begun, to obtain all of the “records in possession of Dr. Conley as they related to statements made by Via, his wife, and [their daughter, the alleged victim].”4

This astounding result was based entirely on the conclusion of the trial judge, later affirmed by the Court of Appeals, that the defendant had failed to prove that his expert’s services were “indispensable” to the defense. In support of its rule that the expert must be shown to be “indispensable” to the party claiming the protection of either the attorney-client privilege or work product, the court relied on nothing but a single word of dictum from a 16-year old opinion by the Virginia Supreme Court. In so doing, as this article shall explain, the court of appeals allowed the prosecution to get away with a monstrous injustice and the clearest imaginable violation of the attorney-client privilege and the work product doctrine.

The Roots of the Disastrous Rule Applied by the Court of Appeals: Why the Mistake by the Court of Appeals is Forgivable
In fairness to the Virginia Court of Appeals, its holding, although horrendous, was understandable. It was only doing, more or less, what the Virginia Supreme Court had told it to do many years earlier.

The roots of this judicial disaster reach all the way back in history to the last appearance of the 17-year locust. In 1988, in the case of Commonwealth v. Edwards, the Virginia Supreme Court stated in dictum that:

The [attorney-client] privilege attaches to communications of the client made to the attorney’s agents, including accountants, when such services are indispensable to the attorney’s effective representation of the client.5

This passing reference to a supposed “indispensability” requirement was pure dictum in every sense of the word. The only question briefed by the parties was whether information shared in that case with an accountant assisting a lawyer was outside the scope of the attorney-client privilege because it was never intended to remain confidential, or because of the client’s later disclosure of related information.6 Even after announcing its new rule, the court in Edwards did not apply it to the facts of the case before it, and made no findings as to whether the accountant in that case was actually indispensable. The court simply assumed, as both parties had done, that the accountant in that case was within the scope of the privilege. Neither party had asked the court to decide when (if ever) an accountant hired to assist in the provision of legal services would fall outside the privilege — much less did either party ask the court to announce a rule that would reach beyond the realm of accountants to all other agents of an attorney.

For nearly two decades, the dictum from Edwards lay undisturbed and harmless, as dictum usually does. In all those years, this line about the supposed indispensability requirement was not cited, much less followed, by any state or federal court outside of Virginia. It had been cited in only four reported cases by Virginia trial courts, always in dictum, but was not once applied by any of those courts as a basis for overruling a claim of privilege.7 For almost 20 years, no reported judicial opinion had actually followed Edwards to require a party resisting discovery to show that a retained expert’s services were “indispensable,” whatever that means, much less denied a claim of privilege because such a showing could not be made. The Edwards dictum was horrible but harmless, as long as everybody either knew nothing about it or else did not take it seriously. But all that changed earlier this year, when the juggernaut was summoned forth from its slumber by the court of appeals in Via.

The result in Via was horrendous, as I shall explain, but it was a faithful and literal application of the language of Edwards, either because the court did not realize that the line was mere dictum, or perhaps based on the plausible assumption that it had no discretion to disregard dictum from the state supreme court.8 Moreover, in fairness to the court of appeals, the defendant in that case had himself cited this same line from Edwards as the controlling legal standard and did not ask the court to disregard that language,9 perhaps because he too was laboring under the assumption that the court had no power to do so.

Until Via was decided, there was ample room to argue that lower courts in Virginia were free to disregard the “indispensability” requirement from Edwards on the grounds that it was unprecedented and terribly reasoned dictum. Tragically, that issue is now moot, because Via is most assuredly not dictum and will be binding on lower courts in future cases. That is exceedingly unfortunate, because that holding will have disastrous consequences for the administration of justice if it is faithfully applied, until the time when it is inevitably reversed by the state supreme court.

Why the Edwards Dictum About the Attorney-Client Privilege Was Unprecedented and Dead Wrong
The Edwards case is a classic illustration of why dictum should not be given binding precedential weight. It would be hard to find a better example of just how wrong a court can be when it makes some glancing statement on a legal issue that was neither disputed nor briefed by the parties. That was especially tragic in light of the fact that it concerned a legal question that has been aptly described as “one of the most important issues in modern privilege law.”10

Communications between a client and a lawyer do not lose their privileged status merely because, as is often true, they turn out to be useless to the lawyer. The privilege “protects communications between a client and an attorney, not communications that prove important to an attorney’s legal advice to a client. Thus, a communication between an attorney and a client may be privileged even if it turns out to be unimportant to the legal services provided.”11 As courts have recognized all over the country, that same logic plainly applies with equal force to communications between a client and other persons hired by the lawyer to assist her in providing legal counsel to the client.

No American jurisdiction outside of Virginia subjects the attorney-client privilege to a general qualification that all of the lawyer’s experts and investigators be shown to be “indispensable” – or anything like that at all.12 On the contrary, every leading national standard describing the attorney-client privilege and the work product doctrine requires at most one simple thing: a showing that the expert was hired to assist the lawyer in the rendition of legal services.13 There is no need to show that the expert actually turned out to be useful or helpful at all, much less “indispensable.”

To say that the law on this point is well-settled would be a colossal understatement. This is the standard codified, for example, in the widely adopted Uniform Rules of Evidence, which protect all confidential communications between the client and any “representative of the lawyer,” who is defined simply as:

a person employed, or reasonably believed by the client to be employed, by the lawyer to assist the lawyer in rendering professional legal services.14

This same language is also used in the Federal Rules of Evidence,15 the Federal Rules of Civil Procedure,16 and The Restatement of the Law Governing Lawyers.17 It is the same general standard that has been consistently adopted by federal courts18 and the courts of other states all over the country.19 It is the same standard that is found in leading reference works on evidence law,20 including the venerable Wigmore on Evidence, which long ago concluded that “the privilege must include all the persons who act as the attorney’s agents.”21

The focus of all these legal authorities is entirely on the hopes and expectations of the lawyer at the time the agent was hired, not the later results of the agent’s investigation. No national codified statement of the attorney-client privilege says that agents hired to assist the lawyer must actually turn out to be the least bit “helpful” or “important,” much less “indispensable.” Indeed, the codified national statements of the rule do not contain any adjectives at all! As we shall see, this is no coincidence, because any subjective term qualifying the privilege based on the degree of the expert’s ultimate usefulness would make the privilege intolerably unpredictable.

Indeed, the dictum from Edwards was rejected by other courts even before it was written. In the strikingly similar case of People v. Knippenberg,22 when the prosecution obtained a statement that was given by the accused to an investigator hired to assist the defense lawyer, the Supreme Court of Illinois emphatically rejected the government’s contention that the attorney-client privilege “should not apply here because, it is claimed, the investigator was not necessary or essential to communication between the defendant and his attorney.”23 To sustain the privilege objection, the Supreme Court concluded, it was sufficient merely to note that the “realities of practice often require an attorney’s use of investigators”24; there was no need to show the need for such use in that case.

This is an extremely common way of reasoning about privilege and work product doctrine, which often and necessarily operate at the level of generality so that they can be applied with precision. For example, because lawyers “often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial,”25 work product protection must necessarily extend to all investigators and agents hired to assist an attorney in preparation for litigation, and not merely the lucky ones who turn up something helpful or useful.26

Moreover, it must be remembered that the concerns underlying the attorney-client privilege apply with greatest force in criminal trials, because of its obvious and sensitive connection to the constitutional rights of the accused.27 Many jurisdictions have acknowledged the “constitutional concerns that may arise if a criminal defendant is forced to reveal information gathered as part of the defense investigation.”28

In the preparation of this article, I naturally conferred with Virginia attorney and privilege expert Thomas E. Spahn. He is the author of the definitive reference work, A Practitioner’s Guide to the Attorney-Client Privilege and the Work Product Doctrine,29 and has been litigating and writing about privilege issues all over Virginia and the country for more than a quarter of a century. He confirmed that he is not aware of any case ever decided by any court in the nation, either state or federal, prior to Via that had actually required a party to prove that an expert or other agent (other than an accountant) was indispensable before the information collected by that expert could be protected from discovery. He has authorized me to report that the overwhelming weight of the best reasoned legal authority is totally inconsistent with the standard announced in Edwards and applied in Via, that the error in those cases poses a serious risk to a very important privilege, and that he shares my hope that they will be reversed. 30

In support of its dictum about indispensability in Edwards, the Virginia Supreme Court cited only two federal cases. Neither case provided any substantial support for that rule, and one of them actually rejected it! In United States v. Kovel,31 the only one of the two cases to even use the word “indispensable,” the court approvingly cited Wigmore’s Evidence for the fact that:

It has never been questioned that the privilege protects communications to the attorney’s clerks and his other agents (including stenographers) for rendering his services. The assistance of these agents being indispensable to his work and the communications of the client being often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney’s agents.32

The Second Circuit, quoting Dean Wigmore, concluded that “all the persons who act as the attorney’s agents” are within the privilege, because they are, as a group, “indispensable.” It boggles the mind that the Virginia Supreme Court in Edwards would later cite that statement in support of the radically different conclusion that individual agents are within the privilege only if each can be shown, one by one, to be indispensable in a given case. Even the court that decided Kovel has recently and correctly cited that opinion for the proposition that the privilege extends to “communications to others when the purpose of the communication is to assist the attorney in rendering advice to the client.”33 Rarely has a case been so improperly cited for something it did not say.34

The only other authority cited in Edwards by the Virginia Supreme Court was a 1972 federal court opinion, United States v. Cote, which stated that the proper test is “whether the accountant’s services are a necessary aid to the rendering of effective legal services to the client.”35 But in support of that claim, Cote cited nothing but the preliminary 1969 draft of the Federal Rules of Evidence,36 which furnishes absolutely no logical support for an “indispensability” test. As I have pointed out, the proposed federal version of the attorney-client privilege, even in its original 1969 draft, would have extended the privilege to all agents who were “employed by the lawyer to assist in the rendition of professional legal services.”37 The word “necessary” did not appear in that rule or its Advisory Committee Notes. Cote made up its “necessity” test out of thin air.

Moreover, it is vital to remember that the Edwards case and the two cases cited by that court all involved communications with an accountant employed to assist an attorney.38 Even if those cases furnished substantial support for a rule requiring a showing of indispensability or necessity in the case of accountants, they surely give no support for the Virginia Supreme Court’s decision to announce such a rule as a standard for all of “the attorney’s agents, including accountants.”39

When it comes to the logic of the attorney-client privilege, accountants do not function quite like the other agents hired to assist a lawyer. One crucial distinction, among others, is the fact that accountants routinely provide valuable services to their clients independently of any lawyer. That is why, as the courts have often noted, care must be taken to ensure that an accountant nominally hired by (or working with) a lawyer is truly there to assist the lawyer, and is not merely providing accounting services to a client who also happens to be receiving legal advice from the lawyer on the same matter. The nagging question that always troubles the courts in such cases is whether the accountant is really working for and assisting the lawyer at all, or merely working for their common client. That is why some courts have insisted on a showing that the accountant perform work that is at least “highly useful” to the lawyer.40 But there is almost never any room for similar doubt about the other agents who are hired by a lawyer in preparation for trial, including paralegals, investigators, and consulting experts, since clients do not normally hire such professional services on their own. In a case like Via, where a man under indictment for felony charges claims that he has hired a consulting expert and investigator at the suggestion of his lawyer, no sane observer would have the slightest doubt that the expert had indeed been hired in the hopes of being of some assistance to the lawyer. That is the main reason why no court before Edwards had ever imposed a general “indispensability” requirement on all of the other investigators and experts who advise and assist lawyers.41

Why the Edwards Dictum About the Attorney-Client Privilege Is a Disastrous Precedent as a Matter of Policy
As I have shown, all across the country, both state and federal versions of the attorney-client privilege invariably refuse to qualify its protection with any sort of test about how useful an investigator or expert turned out after being hired to assist a lawyer. This is no coincidence, since any such rule would fly in the teeth of the two most fundamental precepts of privilege law.

First, any rule that would condition a privilege on a showing of an expert’s “indispensability” would be intolerable because of its hopeless unpredictability. If the most basic purposes of any privilege are to be protected, the participants in the confidential conversation “must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.”42 For that reason, the United States Supreme Court has repeatedly and wisely repudiated every attempt to fashion rules of privilege that would introduce “substantial uncertainty into the privilege’s application,” or that would entail the “use of a balancing test in defining the contours of the privilege.”43

It is true that the attorney-client privilege, like any privilege, is qualified all over the country with many detailed exceptions and requirements. But all of those exceptions are painstakingly designed so that their applicability can almost always be identified with precision and confidence at the time the client decides whether to communicate with his lawyer or one working for the lawyer. The privilege is defeated, for example, if the client is seeking legal advice to assist in planning acts he knows to be criminal, or if he talks with his lawyer in the presence of strangers in a public place. But those exceptions do no violence to the privilege, since any client who has been properly counseled on the contours of the privilege can always predict with confidence whether those exceptions will operate to deprive his communication of their privilege.

Privileges are never qualified by exceptions unless the applicability of the exception can be predicted with a high level of confidence and precision. In Swidler & Berlin v. United States, the Supreme Court of the United States emphatically rejected the suggestion that the attorney client privilege should be qualified by an exception for situations where disclosure of confidences after the death of the client would be of substantial importance to a criminal investigation.44 Likewise, in Jaffee v. Redmond, the Court rejected a proposal to qualify the privilege for communications with a social worker in cases where a judge later concluded that there was substantial need for the evidence.45 In both cases, the Supreme Court rejected the proposed qualification as intolerable, solely because clients could not know with certainty at the time of their communication whether a later court might conclude that someone else had a substantial need for such information.

The rule followed by the lower courts in Via suffers from the same vice — only worse. At least some (although not all) clients can safely predict whether their communications with their lawyer might be of great interest to a later criminal or civil investigation. But at the time a lawyer is trying to decide whether to enlist the services of an investigator or consulting expert, no client or lawyer can have the faintest clue whether the information later collected by those agents and the conclusions reached by them will even be helpful to the lawyer, much less “indispensable” to the presentation of his case at trial.

It would inject intolerable imprecision into the privilege if any adjective were used to qualify the level of helpfulness or necessity that must attend an expert’s ultimate conclusions for the privilege to attach. But the word used by the court in Edwards, “indispensable,” is the worst standard one could imagine, and not merely because of its excessive stringency. The biggest problem with this standard is that it has a literal sense and a commonplace colloquial meaning, and the two are worlds apart. Lawyers, like everyone else, frequently use such language as a hyperbolic compliment, as when we say “I couldn’t survive without my secretary,” meaning merely that she is a great help. By that standard, if that is what Edwards requires, one could make a fair case that virtually every consulting expert and investigator is “indispensable” to the typical overworked lawyer, at least figuratively speaking, just as Dean Wigmore categorically stated.

Then again, indispensable literally means something very different — “that which is absolutely necessary and cannot be dispensed with” — as when one says “I couldn’t survive without oxygen.” By that standard, probably no agent can honestly be called indispensable, and every lawyer is telling a little white lie when we claim “I could never do my job without them.” Legal practice without secretaries and paralegals and experts and investigators would be extremely difficult and would entail major changes in the practice of law as we know it – but it would not be impossible. (It would merely be far less profitable; we would all have to reduce our caseload by 90 percent so we could do their work ourselves.)

So either the “indispensability” test is to be applied figuratively, in which case it includes every expert and investigator — or else it is applied literally and includes none of them. In either case the test is meaningless and worthless. Or even worse and far more likely, until the matter is clarified and resolved by the supreme court of this state, it will be applied in different ways by different judges, which makes its imprecision and unpredictability complete.

Some will naturally object to my argument by pointing out that ample authority from many jurisdictions holds that messengers and translators are within the privilege only if they are “reasonably necessary” for transmitting information between the lawyer and the client. For example, the most standard formulation provides that communications between a lawyer and a client do not lose their privileged character if they are shared with either “[1] those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or [2] those reasonably necessary for the transmission of the communication.”46 (Notice, by the way, that the “reasonably necessary” requirement does not qualify people like experts hired to assist in the rendition of legal services, but applies only to the messenger used merely for the transmission of the communication.) “And so,” some might argue, “there must be no inherent vice in a rule that would qualify a privilege based upon whether someone working for the lawyer is necessary or indispensable.”

But that comparison is beside the point. Any time a lawyer decides to use someone other than a full-time employee to help her communicate with a client — such as a translator, or a sign-language interpreter, or a parent who enables her to speak with an otherwise uncommunicative and frightened young child – it is easy for that lawyer to know at that time whether she needs that messenger or translator right then and there.

The same is also true of accountants who allegedly work as the agents of a lawyer. Such accountants typically work just like a translator to help interpret and essentially decipher a large mass of financial records that are already in existence.47 (The Edwards case, remember, involved privileged communications between a client and the accountant working for his lawyer, as did the only two cases it cited in support of its indispensability requirement.48 ) A lawyer knows perfectly well whether the services of an accountant are “indispensable” to enable him to make sense of a large cache of his client’s financial data and to translate it into an intelligible summary, even before the accountant is hired.

That is completely different from other experts and investigators, whose possible future usefulness is sheer guesswork at the time the lawyer decides whether to hire them. On the day you hire a translator and an accountant to decipher the financial records of your Russian-speaking client, those records are already on your desk and you already know whether those agents are essential to your understanding of that information and your representation of the client. On the day you hire an investigator or expert to collect information and formulate opinions about your case, on the other hand, God only knows if his findings and opinions will turn out to be indispensable — or disastrous — to your case.

Indeed, even before Edwards was decided, a pair of prominent authorities on discovery had already pointed out the hopeless unpredictability of any rule that would make the availability of the privilege turn on the lawyer’s ultimate need for the results of that expert’s work. Whenever you retain a consulting expert for possible assistance with your case, as those noted commentators observed, “you can not always get what you want, but if you try, sometimes you just might find you get what you need.”49 That is precisely the kind of unpredictability that will surely “eviscerate the effectiveness of the privilege.”50

Even apart from its hopeless imprecision, the Edwards indispensability test suffers from a second vice that also makes it totally unacceptable: its applicability turns on the content of the communication.

Although the attorney-client privilege is qualified by numerous requirements and exceptions, their applicability virtually never has anything to do with the content of the allegedly privileged communication. Indeed, that is why the rules of the Virginia Supreme Court are able to declare that a party seeking to invoke the attorney-client privilege or the work product doctrine “shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.”51 Almost all litigated privilege disputes involve factual questions that can be resolved by a court without ever learning one word of the allegedly privileged communication that was shared between the client and the lawyer — such as whether the communication came from a client, or whether the communication was made in confidence, or whether the privilege was waived by a later public disclosure.

But that obviously is not true of the “indispensability” test proposed in dictum in Edwards. There is no way a lawyer could make such a showing without revealing most of the information the privilege is designed to protect. You cannot possibly demonstrate that a consulting expert is “indispensable” to your representation of a client without divulging a great deal about the information known and the opinions held by the expert. Even in the rare and lucky case where your investigator or expert turns up information or an opinion that is arguably “indispensable” to your case (something you never could have predicted with confidence), you cannot possibly hope to show that fact to the court without revealing precisely what those conclusions were.

Probably the most intolerable vice of the Edwards standard is the fact that experts and investigators frequently perform their most valuable service when they turn up “bad news” — that is, when they reveal that once promising lines of argument or witness questioning would be unprofitable or hazardous. They are often critical (one could even say “indispensable,” figuratively speaking) in assisting the lawyer to decide which witnesses should not be called, which questions should not be asked, and which claims and defenses should not be pursued, even though such experts (not by coincidence) are usually never seen at trial and end up as “nontestifying experts,” just as Dr. Conley was in the Via case. It is impossible to reveal that an expert has served that vital function without disclosing exactly what the attorney-client privilege and the work product doctrine are designed to protect.

There is of course one well-known qualification to the privilege that turns on the details of what was said between the lawyer and client: the exception for communications in furtherance of an ongoing crime or fraud. But even in cases where one party suspects that such an exception might apply, the party claiming the privilege is not obligated to submit the communication for in camera inspection by the trial judge, much less disclosure to opposing counsel, until the party seeking disclosure presents “evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception’s applicability.”52 Without such a required threshold showing, “[a] blanket rule allowing in camera review as a tool” for resolving privilege disputes “would place the policy of protecting open and legitimate disclosure between attorneys and clients at undue risk.”53 The problem is that “examination of the [allegedly privileged] evidence, even by the judge alone in chambers, might in some cases jeopardize the security the privilege is meant to protect”54 and would even raise “possible due process implications.”55 Thus, although it is often said that the party asserting a privilege bears the burden of showing its applicability, that presumption is always reversed in the rare case where the possible applicability of some exception to the privilege ultimately turns on the content of the communication itself.

The “indispensability” test announced in Edwards, as applied by the court of appeals in Via, was attended by none of these elaborate safeguards that have been carefully developed in the context of the crime-fraud exception to prevent opponents of the privilege from engaging “in groundless fishing expeditions.”56 Even if it otherwise made sense to condition the attorney-client privilege on whether an expert or investigator was “indispensable” to the lawyer, as Edwards stated, it is monstrous to automatically require the party asserting the privilege to disclose what the agent found and concluded, simply to show how it was useful or indispensable to that party, in every case where an expert or investigator has been employed. Yet that is precisely what happened in Via, where the mere issuance of a prosecutorial subpoena was deemed sufficient to put the burden on the defense to essentially divulge what his expert had learned and concluded, even though the prosecution made no attempt to show there was any reason to suspect that the defense expert was not helpful to the defense, or that his files should be discoverable in the name of fairness.

Why the Holding in Via was Also Dead Wrong About the Work Product Doctrine
Forget for a moment everything you have read so far. Even if every word I have written about the attorney-client privilege is wrong, the court of appeals still committed plain error in Via by failing to condemn the outrageous and obvious violation of the defendant’s constitutional right to collect and retain the work product of his investigator, including statements from three of the trial’s most important witnesses. It is no exaggeration to say that these materials were the quintessential form of work product.

It is beyond doubt that the work product doctrine serves its most vital role in criminal cases. Indeed, that is why work product may be discoverable in a civil case on the basis that the discovering party has a compelling need for the information,57 but may not be obtained for that reason in a criminal case.58 As the United States Supreme Court has explained:

Although the work product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.59

In the Via case, as it turns out, the prosecution and the court of appeals could not agree on why the materials collected by the defendant’s expert were not protected from discovery as work product. They concocted different explanations, both of them frivolous.

In its brief before the court of appeals, the Commonwealth took the absurd position that the work product doctrine – which it mistakenly called the “attorney work product privilege” — only applies to materials prepared by an attorney. Its entire argument was the assertion that: “Neither is the attorney work-product privilege applicable. What was subpoenaed was not the attorney’s work product at all, but information in the possession of a witness.”60 This argument overlooks the fact that “the work product doctrine is not limited to attorneys and is not a privilege.”61 Because attorneys “often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial,” it is “necessary that the [work product] doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.”62

Evidently recognizing the absurdity of the prosecution’s only argument, the court of appeals knew it could not affirm the conviction unless it came up with another. Rather than concluding that “work product” is limited to work done by a lawyer, as the Commonwealth had argued, the court of appeals instead did something that not even the Commonwealth had asked it to do. The court extended the Edwards dictum to work product, and held that work done by an expert or other agent retained for litigation may be “work product,” but only if the agent is indispensable to the lawyer. After dismissing Via’s claim of attorney-client privilege, the court of appeals summarily rejected his claim of work product protection based entirely on this perfunctory explanation:

In this case, Via proffered no evidence for the record in any effort to establish the “indispensability” of Dr. Conley’s services. Thus, there was simply no reason for the trial court to have declared Dr. Conley an “agent” of Via’s counsel.

As we have found no evidence in the record to support Via’s theory that Dr. Conley was an “agent” of his counsel, we find no reason to reverse the trial court’s ruling that Dr. Conley’s records did not qualify as his attorney’s “work product.”63

This reasoning is utterly indefensible. To begin with, since the only authority and reasoning cited by the court of appeals in rejecting Via’s work product claim was the terrible dictum about “indispensability” from Edwards, that portion of the court’s opinion is mistaken simply because Edwards was completely wrong, for all the reasons listed above. But even if every word I have written about Edwards is wrong, and even if Mr. Via’s claim of privilege was properly overruled, the unprecedented extension of the indispensability dictum to work product is indefensible. This is true for two reasons, either one of which would be decisive.

First, the court of appeals was wrong to conclude that an expert is a lawyer’s “agent” only if he is “indispensable” to the lawyer, as if indispensability were not merely the test for the attorney-client privilege but the very test for agency. No court or legal authority anywhere has ever said such a thing. Not even Edwards, as bad as it was, said such a thing, not even in dictum. Edwards said nothing about work product or the standards for determining whether someone qualifies as a lawyer’s agent under the general principles of agency law. On the contrary, Edwards claimed that an agent falls within the attorney-client privilege only if the “agent” is shown to be “indispensable,” which unmistakably implies that the two standards are not the same.

Besides, it is totally irrelevant to the work product doctrine whether the defense expert employed in Via was shown to be an agent of the lawyer for the accused. There was no dispute that he was working, either directly or indirectly, for a party — the defendant in that case — and that is all that matters as far as the work product doctrine is concerned. This doctrine, often misleadingly called “attorney work product,” is not limited to attorneys and their agents, and applies to material prepared in anticipation of trial “by any agent – whether hired by the client or a lawyer and whether or not a lawyer is involved.”64 That is why work product protection, unlike the attorney-client privilege, may even be claimed by an unrepresented party.65 The decision of the court of appeals in Via may now be fairly cited as the latest proof of the familiar adage that “some courts do not understand the law, and continue to look for a lawyer’s involvement before finding the work product doctrine applicable.”66

Until Via was decided, state and federal courts across the nation had been unanimous in condemning prosecutors who attempt to obtain discovery of the facts uncovered and opinions held by nontestifying criminal defense experts and investigators, on the grounds that such discovery would amount to an obvious violation of the work product doctrine, and (some have also held) the Sixth Amendment constitutional right to the effective assistance of counsel.67 Almost every court to consider the question has specifically noted that any other rule would create an intolerable disincentive for defense counsel to consult with experts and investigators for fear of creating potential evidence or witnesses for the State.68 In the alternative, defense attorneys will be motivated “to hire only those experts which they have reason to believe will lean their way.”69 Neither outcome advances the search for the truth, and both impair the defendant’s right to effective assistance of counsel.

By the way, it is noteworthy that the federal courts have taken a slightly more restricted view of work product protection in criminal cases, in light of their commitment to the Jencks doctrine.70 If Mr. Via had been tried in federal court, some of the statements his expert investigator took from the witnesses might have been subject to disclosure at trial, but only after those witnesses were called as witnesses by the defense.71 But that authority cannot remotely justify what the lower courts did in Via, because the Virginia Supreme Court long ago refused to follow Jencks.72 Even a criminal defendant, who always has broader rights of discovery than the prosecutor, is not allowed under Virginia law to obtain the prosecutor’s work product in the form of statements made by its prospective witnesses or the reports of its investigating agents.73

But why not? Why does Virginia law deny the accused, even during trial, the right to obtain “Jencks material” in the form of pretrial statements that the Commonwealth obtained from its testifying witnesses? In hindsight after Via, the answer is likely to make you laugh and cry. In Bellfield v. Commonwealth, the Supreme Court of Virginia chose to deny criminal defendants this extremely valuable form of impeachment material in order to ensure that a prosecutor would be given the same right that defense counsel supposedly enjoys “in conducting his own investigation, … to interview witnesses and to obtain their statements,”74 free from the risk that opposing counsel would be allowed to engage in “a fishing expedition into the Commonwealth’s files.”75

Yet that is precisely the sort of indiscriminate disclosure the Commonwealth was allowed to obtain of all the witness statements collected by the defense investigator in Via. That discovery gave the prosecution the extremely significant chance to benefit from any incriminating facts turned up by the defense team,76 and to far more thoroughly prepare its witnesses for the defense’s most likely lines of cross-examination, impeachment, and closing argument. It made this trial as unfair as a poker game where only one side was required to lay his cards face-up on the table. The holding of Bellfield will remain a grotesque and obscene double standard until Via is overruled.

Why the Conviction in Via Could Not Have Been Affirmed as the Result of Harmless Error
For all the reasons set forth above, the judgment of the court of appeals in Via v. Commonwealth was based on an utterly erroneous legal standard. Because of its mistaken interpretation of the law, the court did not consider the prosecution’s alternative argument that “any error in the trial court’s rulings on the subpoenas was harmless” because the defense expert never testified and his name was only barely mentioned at trial.77 There may have been other reasons for concluding that the error in Via was harmless; I cannot say since I have not seen the record. But the prosecution’s proposed analysis of that issue was mistaken.

To begin with, it is at least an open question whether the sort of egregious violation of the attorney-client privilege and work product doctrine committed in Via should ever be affirmed as harmless error. In a highly similar case involving another prosecutor who improperly obtained a privileged statement given by an accused to an investigator acting as agent for the defense counsel, the Illinois Supreme Court took pains to point out that “we need not decide whether there should be an automatic reversal of the conviction to deter violations of the right to counsel’s assistance and to preserve public confidence in our justice system.”78 As another court has correctly noted, it is “patently unfair” for the results of a defense investigator’s work to be made available to the prosecution and “there is no possible curative instruction” to undo the resulting damage to the defense.79

Moreover, even if the Virginia Supreme Court declines to adopt a rule of automatic reversal in cases like this, it was absurd for the Commonwealth to argue that any error was harmless because the defense expert did not testify and his name was barely mentioned at trial. (That is not surprising since Dr. Conley had no first-hand knowledge of anything.) Even though he did not testify, it is certain that the prosecution derived some unknown but substantial benefit by being allowed to pore through the notes reflecting his interviews of the defendant and the alleged victim – the key witnesses for both sides.

In another case where a prosecutor improperly used a subpoena to obtain privileged information that was shared between an accused and an expert hired by his attorney, the Second Circuit Court of Appeals refused to credit the prosecution’s self-serving assurance “that it obtained no information by invading that privilege.”80 In light of the great and obvious risk that the prosecution derived some indirect benefit from the violation, the court remanded the conviction with directions for the trial judge to conduct “an evidentiary hearing to determine whether the government’s case was in any respect derived from a violation of the attorney-client privilege in regard to confidential communications passing from [the accused] to [the defense expert].”81 There is no way that the appellate courts could have fairly ordered any less in Via.

Conclusion
Our legal system has always thrived on the imagination and creativity of enterprising counsel. For generations, that system has deliberately given lawyers ample leeway and incentive to privately investigate and consider every potentially viable claim or defense, even those that appear at first to have little prospect for success. That system functions properly only if it gives reliable guarantees that a lawyer who hires investigators and experts to assist in evaluating potential claims and defenses, no matter how much of a long-shot, will not run any risk of creating “work product” that can be discovered by opposing counsel. As the United States Court of Appeals for the Third Circuit has correctly stated:

Disclosures made to the attorney cannot be used to furnish proof in the government’s case. Disclosures made to the attorney’s expert should be equally unavailable, at least until he is placed on the witness stand. The attorney must be free to make an informed judgment with respect to the best course for the defense without the inhibition of creating a potential government witness.82

That is why investigators and experts who turn up with “bad news” – the ones who end up, no coincidence, as nontestifying experts — have long been most carefully shielded from discovery. Even in civil cases, where work product is more readily discoverable than in criminal cases,83 facts known and opinions held by an expert retained for litigation are freely discoverable if he is to testify at trial,84 but almost completely undiscoverable if he is not expected to testify.85 (That makes perfect sense, since the discovering party has incomparably greater need to obtain details about the experts he will be facing and cross-examining at trial.)

But the holding in Via unwittingly stands that well-settled law on its head, by extending the attorney-client privilege and work product protection only when a potential expert witness ends up with information that is so useful to the lawyer that the expert becomes “indispensable.” Paradoxically, however, that is when the lawyer hiring the expert has the least need for protection from discovery. When an expert or investigator comes up with information and conclusions that helpful, he will almost invariably end up on the list of witnesses expected to testify at trial, which means the lawyer hiring that agent will have the least need for, or right to claim, a privilege to withhold details about that agent and his opinion. If lawyers are told in advance that the findings of their agents will be freely discoverable by opposing counsel if the agent’s conclusions turn out to be adverse or otherwise unhelpful to the hiring lawyer, there will be a powerful disincentive to take that chance at all.

Many observers of the Virginia judicial system may be tempted to dismiss all my objections with the cynical conclusion that the courts of Virginia will never apply the holding in Via to anyone but criminal defendants. I fear that may well be true.86 But that is not a satisfactory answer to the problem. If the dictum from Edwards is to be taken at face value and faithfully applied, as the court of appeals tragically assumed in Via, there is no principled basis for limiting its logic or language to criminal cases or even to experts. Edwards was not a criminal case, and its diabolical dictum refers generally to all of the “agents” working for any lawyer. By the twisted logic of Edwards and Via, a statement made to any of a lawyer’s many agents is neither privileged nor work product unless those agents are shown to be “indispensable to the attorney’s effective representation of the client.”

That standard would wreak havoc in the practice of law as we know it. Lawyers determined to zealously pursue every possible lawful advantage for their clients should now routinely serve subpoenas upon everyone who works as an agent for opposing counsel – testifying and nontestifying experts, investigators, paralegals, law clerks, and secretaries – and force the opponent to show precisely how these agents were indispensable in that very case. Lawyers anxious to avoid loss of the privilege will hire nobody to assist them.

In the strikingly similar case of People v. Knippenberg,87 the Supreme Court of Illinois properly expressed its unqualified outrage when the prosecution was allowed to obtain a statement that was given by the accused to an investigator hired to assist the defense lawyer. The Court concluded that “the violation of the attorney-client privilege was clear and indefensible,”88 and added:

What occurred here was violative of the notion of a fair trial and completely offensive to the concept of the effective assistance of counsel. The prejudice to the defendant was grave and inexcusable.89

“Given the widespread use of expert testimony” in both civil and criminal litigation, the applicability of the attorney-client privilege to communications between a client and an expert hired to consult with his lawyer is “one of the most important issues in modern privilege law.”90 In both principle and policy, Edwards and Via were as thoroughly wrong as judicial opinions can be, and their potential damage to the administration of justice is incalculable. They must be reversed at the first available opportunity.

ABOUT THE AUTHOR: Prof. James Joseph Duane gratefully acknowledges the extremely helpful comments of Mr. Thomas Spahn and Mr. Joseph Migliozzi on drafts of this article. Professor Duane is a professor at Regent Law School, where he has taught and written about evidence law for 13 years. He is the co-author of Weissenberger’s Federal Evidence (4th ed. 2001), and the author of over 20 published articles on evidence law. He is a member of the New York State bar, and has significant practice experience in civil litigation and criminal defense. He is a graduate of Harvard College (A.B. 1981) and Harvard Law School (1984). He is a member of the Civil Litigation Section Council of The Virginia Bar Association, and the faculty of the Trial Advocacy Institute at the University of Virginia School of Law.

NOTES
1. 42 Va.App. 164, 590 S.E.2d 583 (2004).
2. This summary of the facts is taken from the opinion of the court of appeals. Via, 42 Va.App. at 170-171 and 188-90, 590 S.E.2d at 586 and 595-96.
3. Dr. Conley was not designated as a testifying expert who would be taking the stand at trial (nor did he testify). As every lawyer knows, a testifying expert is subject to much greater discovery – but neither the prosecutor nor the appeals court ever suggested that disclosure could be justified on that ground. At the time the prosecution sought disclosure of all Dr. Conley’s notes, there was no dispute that he was hired as a consulting expert to advise the defense attorney on possible trial strategies.
4. Via, 42 Va. App. at 188, 590 S.E.2d at 595. In the briefs filed with the court of appeals, the parties made conflicting assertions as to whether Dr. Conley’s notes reflected any communications from the accused. I have not seen the record and do not know the answer, but it is academic in light of the court’s disposition of the privilege issue. The court of appeals assumed for the sake of its opinion, as the defendant had contended, that those notes did reflect communications between Dr. Conley and the accused. It is therefore plain that Via may be cited as binding precedent even in cases where the prosecution concedes that it is seeking discovery of notes from a defense expert about his conversations with the accused himself.
5. Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301 (1988) (emphasis added).
6. I have reviewed the briefs filed by the parties in Medicaid Fraud Control Unit v. Doe, the case that prompted the court to announce its “indispensability” rule; it was one of the two companion cases decided by the Virginia Supreme Court under the caption of Commonwealth v. Edwards.
7. Bradford v. Goodwin, 56 Va. Cir. 370, 370 (2001); S.W. Heischman, Inc. v. Reliance Insur. Co., 30 Va. Cir. 235, 242 (1993); Romenesko v. Romenesko, 25 Va. Cir. 220, 221 (1991); X Corp. v. Doe, 805 F.Supp. 1298, 1305 n.13 (E.D.Va. 1992). In none of those four cases was a lawyer’s agent deemed outside the scope of the privilege because the agent was not shown to be indispensable or helpful to the lawyer.
8. Although a Virginia court is not bound by dicta from an earlier opinion written by that same court, Scott v. St. Farm Mut. Auto. Ins. Co., 202 Va. 579, 583, 118 S.E.2d 519, 522-23 (1961); Newman v. Newman, 42 Va.App. 557, 593 S.E.2d 533 (2004), it is a little less clear whether Virginia courts have the same discretion to disregard unambiguous statements by higher courts merely because they are dicta. One could arguably support that distinction by analogy to summary dispositions issued by the Supreme Court of the United States without briefing and argument, which carry less precedential weight in later cases before that court, Edelman v. Jordan, 415 U.S. 651, 671 (1974), but are still binding on lower courts. Doe v. Hodgson, 500 F.2d 1206, 1207-08 (2d Cir. 1974) (“the privilege of disregarding even summary Supreme Court holdings rests with that court alone”). On the other hand, although there appears to be very little authority either way, at least two justices of the United There is precious little reported case law on this particular question, presumably because the issue is always moot by the time a case gets before the Virginia Supreme Court.
9. Opening Brief for Appellant at 23, Via (No. 2018-02-3).
10. Edward J. Imwinkelreid, The New Wigmore: Evidentiary Privileges § 6.10.2, at 775 (2002) (referring to the question whether attorney-client privilege extends to communications between a client and a nontestifying expert witness retained to consult with and advise the lawyer in preparation for trial).
11. United States v. Ackert, 169 F.3d 136, 139 (2d Cir. 1999).
12. There is some limited authority for a stricter rule in the case of accountants, by virtue of the obvious analogy between their function and that of translators, as we shall see. But those cases are readily distinguishable from the work of investigators and other experts, as I shall demonstrate.
13. I say “at most” this much, because the work product doctrine actually does not even require that much. As will be shown, “work product” includes the work done in anticipation of trial by every agent of a party, and the agent need not have been working or connected with any attorney. But even the work product doctrine is broad enough to include, among others, every expert or investigator or other agent hired to assist a lawyer who is preparing for litigation.
14. Uniform Rule of Evidence 502(a)(5) (emphasis added).
15. Proposed Federal Rule of Evidence 503 would have applied the attorney-client privilege to every confidential communication by a client with any “representative of the lawyer,” which was defined simply as “one employed to assist the lawyer in the rendition of professional legal services.” Proposed Federal Rule of Evidence 503(a)(3), 56 F.R.D. 183, 236 (1973). The Advisory Committee specifically noted that this definition included but was not limited to experts. Although Proposed Rule 503 was never adopted because Congress blocked the proposed codification of federal privilege law when the Federal Rules of Evidence were adopted, that standard has been widely cited by the federal courts as a helpful benchmark in evaluating and resolving claims of privilege.
16. The federal codification of the work product doctrine, which has also been adopted in Virginia, applies to documents prepared in anticipation of litigation or for trial “by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3); Virginia Rule Sup. Ct. 4:1(b)(3).
17. The attorney-client privilege “extends to communications to and from the client that are disclosed to independent contractors retained by a lawyer, such as an accountant or physician retained by the lawyer to assist in providing legal services to the client and not for the purpose of testifying.” Restatement (Third) of the Law Governing Lawyers § 70 comment g (2000).
18. Under federal law, it is settled that the attorney-client privilege includes and protects “communications [that] are shared with an agent of the attorney, which may include investigators and accountants retained to assist the attorney in rendering legal advice and instruction.” Lugosch v. Congel, 219 F.R.D. 220, 235 (N.D.N.Y. 2003) (collecting cases).
19. E.g., People v. Knuckles, 165 Ill.2d 125, 650 N.E.2d 974, 981 (Ill. 1995) (attorney-client privilege protects communications between a defendant and a nontestifying psychiatrist “employed by defense counsel to aid in the preparation of the defense”); Commonwealth v. Noll, 662 A.2d 1123 (Pa.Super. 1995) (client communications remain privileged and work product if shared with “an agent assisting the attorney in giving legal advice to the client”); Commonwealth v. Hetzel, 822 A.2d 747, 759 (Pa.Super. 2003) (it was “clearly error” to allow prosecutor to use information collected by expert hired to assist defense counsel, even though that expert never testified at trial).
20. Christopher Mueller & Laird Kirkpatrick, Evidence § 5.10, at 317 (3rd ed. 2003) (“The attorney-client privilege covers not only lawyers but also persons employed to assist the lawyer in providing legal services. Such persons include law clerks, paralegals, investigators, and similar agents as well as members of the office staff who assist in transmitting messages back and forth between lawyer and client such as secretaries, receptionists, messengers, and other office personnel. The privilege also reaches outside experts employed to assist the attorney in providing legal services to the client…”); Imwinkelreid, supra note 10, at 786 (a “functional analysis of the role of the attorney’s expert consultant,” in light of the purposes behind the attorney-client privilege, “dictates that the expert ought to be considered the attorney’s agent for privilege purposes.”)
21. 8 Wigmore, Evidence § 2301, at 583 (McNaughton rev. 1961) (emphasis added).
22. 66 Ill.2d 276, 362 N.E.2d 681 (1977).
23. Id., 362 N.E.2d at 884.
24. Id. (emphasis added).
25. United States v. Nobles, 422 U.S. 225, 238-239 & n.13 (1975) (Emphasis added.)
26. Id.
27. I am referring primarily to the Fifth Amendment right to remain silent, the Sixth Amendment right to the effective assistance of counsel, and the Fourteenth Amendment Due Process right to insist that the government be required to entirely shoulder for itself the burden of proving the guilt of the accused.
28. People v. Knuckles, 165 Ill.2d 125, 650 N.E.2d 974, 978 (Ill. 1995).
29. Thomas E. Spahn, A Practitioner’s Guide to the Attorney-Client Privilege and the Work Product Doctrine (2001).
30. Among other more obvious reasons, one reason I sought input from Mr. Spahn was the unfortunate fact that his otherwise excellent reference work mistakenly suggests, in a moment of uncharacteristic imprecision, that the attorney-client privilege covers communications between a client and a lawyer’s agents (other than office staff) “if the lawyer needs those agents’ assistance to render legal advice to the client.” Id. at 79 (emphasis added). When I checked with him about that claim, Mr. Spahn confirmed the obvious fact that none of the cases cited by him in its support actually applied a general requirement that the expert be shown to be literally “necessary” (apart from cases involving accountants) and told me that he is aware of no case that had ever done so before Via. All of the cases cited by him in support of that claim actually stated that the agent must be shown merely to have been “hired to assist the lawyer”; necessity has nothing to do with it. Mr. Spahn tells me that this regrettable imprecision will be deleted from the next edition of his book.
31. 296 F.2d 918 (2d Cir. 1961).
32. 8 Wigmore, Evidence § 2301, at 583 (McNaughton rev. 1961) (emphasis added). This is the full text of the passage that was partially quoted and partially paraphrased by the Second Circuit in Kovel, 296 F.2d at 921. In support of its reference to “agents” of the attorney, Wigmore specifically cites investigators and experts, among others. Evidence § 2301, n.1.
33. United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995).
34. Rarely, but it has happened. Since Edwards was decided, the First Circuit Court of Appeals has also made the same mistake of misinterpreting Kovel, which it cited for the proposition that communications with an accountant hired to assist a lawyer are privileged only if the accountant was “necessary, or at least highly useful” to the lawyer. Cavallaro v. United States, 284 F.3d 236, 247-48 (1st Cir. 2002). That reading is indefensible, and resulted from violently wrenching a line from Kovel out of context. The First Circuit’s reading is refuted by the very next line of Kovel, which reads: “By the same token, if the lawyer has directed the client, either in the specific case or generally, to tell his story in the first instance to an accountant engaged by the lawyer, who is then to interpret it so that the lawyer may better give legal advice, communications by the client reasonably related to that purpose ought to fall within the privilege…” Kovel, 296 F.2d at 922.
35. United States v. Cote, 456 F.2d 142, 144 (8th Cir. 1972).
36. Id. at 144 n.2 (citing Proposed Fed. R. Evid. 5-03(a)(4) (1969 draft)).
37. Proposed Fed. R. Evid. 5-03(a)(4), 46 F.R.D. 161, 250 (original 1969 draft).
38. The Cavallaro case, which required a showing that the lawyer’s agent was “necessary, or at least highly useful,” also involved an accountant. Cavallaro v. United States, 284 F.3d 236 (1st Cir. 2002).
39. Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301 (1988).
40. Cavallaro was such a case, for example.
41. There is another crucial difference: the fact that a lawyer who hires an accountant (or a translator) already knows with certainty whether he needs that help to effectively communicate with his client, or to decipher a mass of financial records that are already in existence. Thus, there is no unacceptable element of uncertainty in a rule that would condition the privilege on a showing that the work of the accountant is indispensable to the lawyer. Investigators and consulting experts, on the other hand, may or may not turn out to be helpful to one’s case at the time they are hired; nobody can predict such things with confidence. This critical difference is explained much more fully in the next section of this article.
42. Jaffee v. Redmond, 518 U.S. 1, 18 (1996); Upjohn Co. v. United States, 449 U.S. 383, 393 (1981).
43. Swidler & Berlin v. United States, 524 U.S. 399, 409 (1998).
44. Id. The Court noted: “a client may not know at the time he discloses information to his attorney whether it will later be relevant to a civil or criminal matter, let alone whether it will be of substantial importance.” Id.
45. Jaffee, 518 U.S. at 17-18 (“Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.”)
46. Uniform Rule of Evidence 502(a)(2).
47. The analogy between accountants and translators is a familiar one in the case law. E.g., Kovel v. United States, 296 F.2d 918, 922 (2d Cir. 1961) (“The analogy of the client speaking a foreign language is by no means irrelevant to the appeal at hand. Accounting concepts are a foreign language to some lawyers in almost all cases, and to almost all lawyers in some cases.”).
48. Likewise, Cavallaro v. United States, 284 F.3d 236 (1st Cir. 2002), the only other case I have found that embraces something like a rule requiring a showing of necessity, also involved communications between a lawyer’s client and an accountant.
49. Mick Jagger & Keith Richards, You Can’t Always Get What You Want, on Let it Bleed (London Decca Records 1969) (emphasis in original).
50. Jaffee v. Redmond, 518 U.S. 1, 17-18 (1996).
51. Va. Sup. Ct. R. 4:1(b)(6) (emphasis added). Federal law is identical. See Fed. R. Civ. P. 26(b)(5).
52. United States v. Zolin, 491 U.S. 554, 574-75 (1989).
53. Id. at 571.
54. Id. at 570 (internal punctuation and citation omitted).
55. Id.
56. Id.
57. In a civil case, work product may be discoverable if the party seeking discovery can show, among other things, that it “has substantial need of the materials in the preparation of his case.” Va. Sup. Ct. R. 4:1(b)(3); see also Fed. R. Civ. P. 26(b)(3).
58. Even in criminal cases “the work product doctrine is not absolute,” at least in the sense that, “like other qualified privileges, it may be waived.” United States v. Nobles, 422 U.S. 225, 239 (1975). But as long as that protection has not been waived, witness statements collected in preparation for trial are not discoverable by opposing counsel before trial in criminal cases no matter how useful they might be. Va. Sup. Ct. R. 3A:11(b)(2); Fed. R. Crim. P. 16(a)(2) and (b)(2).
59. Nobles, at 238.
60. Brief for the Commonwealth, at 32, Via (No. 2018-02-3) (emphasis added).
61. Spahn, supra note 29, at 270.
62. United States v. Nobles, 422 U.S. 225, 238-239 & n.13 (1975).
63. Via v. Commonwealth, 42 Va.App. 164, 189, 590 S.E.2d 583, 595 (2004).
64. Spahn, supra note 29, at 273-74. (emphasis added). Mr. Spahn’s conclusion is based primarily on the language of the codification of the work product doctrine for civil cases, Va. Sup. Ct. R. 4:1(b)(3), but the standard is the same in criminal cases, which shields from discovery all statements made by prospective witnesses to “agents of the Commonwealth,” and not merely to prosecutors, Va. Sup. Ct. R. 3A:11(b)(2), and this restriction is intended to mirror the reciprocal liberty that defense counsel has to collect witness statements without fear of being required to disclose them to opposing counsel. Bellfield v. Commonwealth, 215 Va. 303, 208 S.E.2d 771, 774 (1974).
65. Spahn, supra note 29, at 273 (“An unrepresented party acting on its own in anticipation of litigation or preparing for trial can create work product.”)
66. Id. at 276.
67. State v. Dunn, 154 N.C. App. 1, 17, 571 N.E.2d 650, 660 (2002) (by allowing the State to compel testimony from experts retained by defendant, but whom he did not plan to call as witnesses, “the trial court infringed upon the defendant’s Sixth Amendment right to effective assistance of counsel, and unnecessarily breached the work-product privilege”); People v. Spiezer, 316 Ill.App.3d 75, 249 Ill.Dec. 192, 735 N.E.2d 1017 (2000) (the scientific report of a non-testifying consulting expert retained by the defendant was protected from disclosure to the state under the work product doctrine); United States v. Walker, 910 F.Supp. 861, 864 (N.D.N.Y. 1995) (the government was barred by the work product doctrine from calling as witnesses ballistics experts retained by the defendant, but whom the defendant did not intend to call as witnesses; “exhaustive research has disclosed no criminal case in which a federal court has permitted the government to elicit testimony from a defendant’s consultative expert concerning that expert’s efforts or opinions undertaken or developed at the request of a defense attorney in preparation for a criminal trial”); State v. Mingo, 77 N.J. 576, 392 A.2d 590, 592 (N.J. 1978) (“The State had no justification for calling defendant’s handwriting expert as its witness. If it considered the identity of the disputed note’s author to be a critical part of its case, the State was fully capable of retaining its own expert. The better practice would have been for it to have done so, and thus avoid jeopardizing any conviction it might obtain.”); Hutchinson v. People, 742 P.2d 875, 881 (Colo. 1987) (allowing the prosecution to call the defense-retained expert in its case-in-chief absent waiver or compelling justification denied the defendant his constitutional right to effective assistance of counsel; “Without knowledgeable trial preparation, defense counsel cannot reliably exercise legal judgment and, therefore, cannot render reasonably effective assistance to his client.”)
68. United States v. Walker, 910 F.Supp. 861, 865 (N.D.N.Y. 1995) (“Absent such an area of qualified privileged within which to prepare for trial a criminal defendant’s preparation can only be crippled by the prospect of creating an unfavorable witness every time he attempts to obtain an unbiased assessment of the government’s evidence by consulting an expert.”); Hutchinson v. People, 742 P.2d 875, 882 (Colo. 1987) (if the prosecution were allowed, in effect, to co-opt the defendant’s experts, “defense attorneys might be deterred from hiring experts lest they inadvertently create or substantially contribute to the prosecution’s case against their clients”); State v. Mingo, 77 N.J. 576, 392 A.2d 590, 592 (N.J. 1978) (if a defense attorney is to provide effective assistance, “it is essential that he be permitted full investigative latitude in developing a meritorious defense on his client’s behalf. This latitude will be circumscribed if defense counsel must risk a potentially crippling revelation to the State of information discovered in the course of investigation which he chooses not to use at trial.”)
69. State v. Dunn, 154 N.C. App. 1, 571 N.E.2d 650, 660 (2002). Accord, Imwinkelried, supra note 10, at 788 (if lawyers are not given adequate protection from discovery of their experts’ findings, “the attorney is much more likely to consult an expert who will slant his or her views,” which will only exacerbate the widespread problem of biased and venal expert witnesses).
70. Jencks v. United States, 353 U.S. 657 (1957); see also United States v. Nobles, 422 U.S. 225 (1975) (extending Jencks to create reciprocal right to discovery of witness statements in the possession of the defense).
71. See Federal Rule of Criminal Procedure 26.2, which codifies the doctrine of Jencks. Even in federal court, however, Jencks would not remotely allow what the prosecution got away with in Via because (1) it does not override the attorney-client privilege and therefore does not justify discovery of statements by the defendant himself, (2) it does not apply to the investigator’s notes based on his witness interviews, and (3) it does not authorize discovery of anything at all until after the defense calls those witnesses at trial. See Rule 26.2(a). Not one of those three restrictions was observed in Via, where the defense expert was ordered to turn over his entire file before trial even began. Even in federal court the prosecution has no pretrial access to written statements taken by the defendant or his agents from any prospective witne