The opinion of the court was delivered by: BUCKLO
On January 8, 1996, the defendant, Jesse Evans, made certain statements to James Koch, an attorney, during a conversation at Mr. Koch's office, at which Mr. Evans, Mr. Koch, and John Holden were present. The government has moved to admit at trial Mr. Koch's testimony regarding the conversation. At issue is whether Mr. Evans' statements to Mr. Koch are protected by the attorney-client privilege. This determination depends on the role Mr. Holden was playing at the meeting. For the following reasons, the government's motion is granted.
The purpose of the attorney-client privilege is to encourage and enable the client to make full disclosure to the attorney so that the attorney may render informed legal advice. Because the privilege may cause relevant information to be withheld from the factfinder, it applies only to the extent necessary to achieve its purpose. In re Grand Jury Proceeding (Cherney), 898 F.2d 565, 567 (7th Cir. 1990). "As it is in derogation of the search for truth, the privilege must not be lightly created nor expansively construed," in re Walsh, 623 F.2d 489, 493 (7th Cir. 1980), but "should be strictly confined within the narrowest possible limits." United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983) (quotation omitted). The burden of establishing the existence of the privilege is upon the party asserting it. United States v. White, 950 F.2d 426, 430 (7th Cir. 1991).
It is vital to a claim of privilege that the communication be made in confidence. Whether the communication is made in confidence depends on the circumstances. "One of the circumstances by which it is commonly apparent that the communication is not confidential is the presence of a third person . . . ." 8 John H. Wigmore, Evidence in Trials at Common Law § 2311, at 601-02 (John T. McNaughton ed., 1961) (emphasis in the original); in re Walsh, 623 F.2d at 495 (citing Wigmore, supra); see also United States v. Keplinger, 776 F.2d 678, 700, 701 (7th Cir. 1985) (trial court's finding that communications were not in confidence not clearly erroneous where information was intended to be disclosed to regulatory agency and "statements to attorneys were made in presence of third parties").
Although the presence of a third party at an attorney-client meeting may destroy the privilege, it does not do so in all circumstances. United States v. Landof, 591 F.2d 36, 39 (9th Cir. 1978). For example, if that third party "was acting as an attorney, the privilege can be asserted." Id.2 Thus, the issue is whether Mr. Holden was acting as Mr. Evans' attorney while in Mr. Koch's office on January 8, 1996. Put another way, the issue is whether an attorney-client relationship existed between Mr. Holden and Mr. Evans in Mr. Koch's office.
An attorney-client relationship is a contract. As such, it may arise when the attorney and the client expressly or impliedly consent to the formation of the relationship.
Brown v. St. Joseph County, 148 F.R.D. 246, 250 (N.D. Ind. 1993). "The client must manifest his authorization that the attorney act on his behalf, and the attorney must indicate his acceptance of the power to act on the client's account." Torres v. Divis, 144 Ill. App. 3d 958, 494 N.E.2d 1227, 1231, 98 Ill. Dec. 900 (1986). The consent may be written or oral. It is not necessary that the attorney be compensated for his or her services. 4 Ill. L. & Prac. § 91, at 149-150 (1971).
The attorney-client relationship may also arise in the absence of mutual consent. Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317 (7th Cir. 1978).
Here, the putative client must show "(1) that [he] submitted confidential information to a lawyer, and (2) that [he] did so with the reasonable belief that the lawyer was acting as [his] attorney." Pain Prevention Lab, Inc. v. Electronic Waveform Labs, Inc., 657 F. Supp. 1486, 1495 (N.D. Ill. 1987) (Moran, J.) (citing Westinghouse Elec. Corp., supra). The existence of the relationship "is not dependent upon the payment of fees nor . . . upon the execution of a formal contract." Westinghouse Elec. Corp., 580 F.2d at 1317. However, the attorney-client "relationship does not arise where one consults an attorney in a capacity other than as an attorney." Id. at 1320.
Central to the resolution of whether Mr. Holden was acting as Mr. Evans' attorney is the determination of the relative credibilities of Messrs. Holden and Koch, because the two offer ...