why Mr. Koch would have fabricated that conversation, or the the notes of the conversation. Mr. Holden also testified that he had no idea that the matter about which he was allegedly representing Mr. Evans was a criminal matter. (12/23/96 Tr. at 16.) Yet all the attorneys he says he went to with Mr. Evans in connection with this matter were, as Mr. Holden agreed, criminal defense attorneys. (12/23/96 Tr. at 49-50.)
There are other examples, and the examples given of course do not describe demeanor, which I observed and include in my evaluation. To summarize, Mr. Holden was simply not believable. In addition, Mr. Holden is a close friend of Mr. Evans, whom he reveres as a father figure, (12/23/96 Tr. at 12-13), and if the January 8 conversation is held unprivileged, Mr. Holden may be called to testify about it. (12/23/96 Tr. at 14.) Moreover, as a Chicago police officer, Mr. Holden is arguably subject to disciplinary action for "failure to report promptly to the Department any information concerning any crime or other unlawful action," (Gov. Ex., Chicago Police Dep't R. 21), such as the information which Mr. Evans confided to him. I conclude that Mr. Koch testified truthfully that Mr. Holden stated he was at the meeting with Mr. Koch and Mr. Evans as a friend and potential character witness, and not as Mr. Evans' attorney, and that when warned that this fact might render the conversation unprivileged, Mr. Evans nevertheless stated he wanted Mr. Holden to remain. Thus, Mr. Holden was not acting as Mr. Evans' attorney at the meeting with Mr. Koch.
The courts are somewhat inconsistent with regard to the impact on confidence of the presence of relatives and friends. McCormick on Evidence § 91, at 335 (John W. Strong gen. ed., 1992). The comparison of United States v. Bigos, 459 F.2d 639 (1st Cir. 1972), and People v. Doss, 161 Ill. App. 3d 258, 514 N.E.2d 502, 112 Ill. Dec. 839 (1987), is illustrative. In Bigos, the court held that it was not error to allow the defendant's former attorney to invoke the attorney-client privilege, notwithstanding the presence of the defendant's father at the attorney-client consultation. The court implied that its careful review of the record showed that the intent to preserve confidentiality was present under the circumstances. 459 F.2d at 643. On the other hand, in Doss the appellate court held it reversible error to accord privilege to the attorney-client communications in the presence of a third party, where the third party was merely providing moral support to client, who, despite the client's "low intelligence level, . . . needed no help in getting across what was important to the attorney." 514 N.E.2d at 505.
See also Saxholm AS v. Dynal, Inc., 164 F.R.D. 331, 339-40 (E.D.N.Y. 1996) (attorney-client privilege not available because third-party was present as "personal advisor" and did not "serve any function at the meeting").
In sum, the general rule is to inquire "not only . . . whether the client reasonably understood the conference to be confidential but also whether the presence of the relative or friend was reasonably necessary for the protection of the client's interests in the particular circumstances." 1 McCormick on Evidence § 91, at 335; 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence P 503(a)(4), at 503-42 to 503-43 (1990) (quoting and adopting McCormick on Evidence, supra).
Mr. Koch's testimony makes clear that Mr. Evans "reasonably understood the conference [not] to be confidential." See 1 McCormick on Evidence § 91, at 335. The most important question is whether Mr. Holden's presence was "reasonably necessary for the protection of [Mr. Evans'] . . . interests in the particular circumstances." See id. The purpose of the attorney-client privilege, beyond which the privilege should not be extended, is to enable the client to disclose to the attorney that which the latter needs to render informed legal advice. In re Grand Jury Proceedings, 898 F.2d at 567. Therefore, the issue is whether Mr. Evans would have been unable to seek appropriate criminal legal representation without Mr. Holden by his side. Mr. Evans has not made such a showing.
Accordingly, since Mr. Holden was not acting as Mr. Evans' attorney at the January 8 meeting and Mr. Holden's presence was not reasonably necessary, Mr. Evans cannot carry his burden of showing that his statements to Mr. Koch are entitled to the protection by the attorney-client privilege. See White, 950 F.2d at 430.
Mr. Evans argues that even if the attorney-client privilege does not protect Mr. Evans' statements to Mr. Koch, Canon 4 of the ABA Code of Professional Responsibility and Rule 1.6 of the Illinois Rules of Professional Conduct (RPC) prohibit Mr. Koch from testifying. Mr. Evans is wrong. First, "federal privilege law applies to criminal cases brought in federal court" and state law, including rules of professional conduct, is irrelevant. United States v. Wimberly, 60 F.3d 281, 284-85 (7th Cir. 1995) (citing United States v. Gillock, 445 U.S. 360, 368, 100 S. Ct. 1185, 1191, 63 L. Ed. 2d 454 (1980)); Fed. R. Evid. 501. Second, "the attorney-client privilege exists apart from, and is not coextensive with, the ethical confidentiality precepts." United States v. Ballard, 779 F.2d 287, 293 (5th Cir. 1986). Third, Illinois RPC allow disclosure of client confidences upon a court order. Ill. RPC R. 1.6(c)(1). As to the ABA Code, it is merely advisory; only the RPC have the force of law, having been adopted by the Illinois Supreme Court.
For the reasons stated above, the government's motion to admit Mr. Koch's testimony is granted.
Elaine E. Bucklo
United States District Judge
Dated: January 9, 1997