attorney-client privilege in Missouri

1997“The physician-patient privilege and the attorney-client privilege are to be used for preserving legitimate confidential communications, not for suppressing the truth after the privileged one lets the bars down.” State v. Carter, 641 S.W.2d 54, 59 (Mo. banc 1982), cert. denied, 461 U.S. 932 , 103 S.Ct. 2096 , 77 L.Ed.2d 305 (1983).

1997"The physician-patient privilege and the attorney-client privilege are to be used for preserving legitimate confidential communications, not for suppressing the truth after the privileged one lets the bars down." State v. Carter, 641 S.W.2d 54, 59 (Mo. banc 1982), cert. denied, 461 U.S. 932 , 103 S.Ct. 2096 , 77 L.Ed.2d 305 (1983).

2024The attorney-client privilege is not nullified, however, “by reason of the presence of a third person if the circumstances surrounding or necessitating the presence may be such that the communication still retains its confidential character and the attending privilege.” State v. Fingers, 564 S.W.2d 579, 582 (Mo.App. 1978).

1990Smith, 574 S.W.2d at 384 ; State v. Fingers, 564 S.W.2d 579, 582 (Mo.App., Springfield D.1978).

2014This court held that Miller’s attorney “could testify about the nature and extent of his authority to enter into the settlement agreement ... without implicating the doctrine of attorney-client privilege.” Id.

2014This court held that Miller’s attorney “could testify about the nature and extent of his authority to enter into the settlement agreement ... without implicating the doctrine of attorney-client privilege.” Id.

2024See also State v. Longo, 789 S.W.2d 812, 815 (Mo.App. 1990) (“The presence of a third party, not essential to the transmission of information or whose presence is not reasonably necessary for the protection of the client’s interest, belies the necessary element of confidentiality and vitiates the attorney-client privilege.”) (emphasis ours); State v. Shire, 850 S.W.2d 923, 931 (Mo.App. 1993) (“The presence of a third person, however, such as a relative or friend of the client, who is not essential to the transmission 6 Attorneys are incompetent to testify as to “any communication made to the a

2021State v. Longo, 789 S.W.2d 812, 815 (Mo. App. E.D. 1990) (internal citations omitted).

2024See Neal v. State, 379 S.W.3d 209, 221 (Mo. App. W.D. 2012) (citing Stuckey v. State, 756 S.W.2d 587, 593 (Mo. App. W.D.1988)). 22 State to the test of proving DeLeon’s guilt beyond a reasonable doubt.

2012Stuckey v. State, 756 S.W.2d 587, 593 (Mo.App.

2021See Diehl v. Weber, Inc., 309 S.W.3d 309, 325 (Mo. App. 2010) (finding inadvertent disclosure did not waive the attorney-client privilege and documents should be returned to the party who disclosed them); see also Gray v. Bicknell, 86 F.3d 1472, 1488 (8th Cir. 1996) (finding inadvertent disclosure did not waive the attorney-client privilege). 7 1986).

2021Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 323 (Mo. App. E.D. 2010) citing In re Marriage of Hershewe, 931 S.W.2d 7 198, 202 (Mo. App. S.D. 1996).

2011The attorney-client privilege is “a fundamental policy, to which disclosure is the exception.” In re Marriage of Hershewe, 931 S.W.2d 198, 202 (Mo.App.1996).

2010In re Marriage of Hershewe, 931 S.W.2d 198, 202 (Mo.App.

1982Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976), even held that statements made by the client to a third party, an insurance adjuster, were within the attorney-client privilege and thus not discoverable.

1982Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976), even held that statements made by the client to a third party, an insurance adjuster, were within the attorney-client privilege and thus not discoverable.

2008Id. at 78, 80 .

2004Friedman v. Provaznik, 668 S.W.2d 76, 80 (Mo. banc 1984). 4 .

1984Hand v. State, 447 S.W.2d 529, 531 (Mo.1969); Simmons v. Universal Life Ins.

1979“Appellants concede that trial counsel may testify at 27.26 hearings when the issue pertains to effective assistance of trial counsel, Hand v. State, Mo., 447 S.W.2d 529 , State v. Rose, Mo., 440 S.W.2d 441 , but say that the waiver of privilege does not extend to all matters within the ambit of the attorney-client relationship, and we agree with this general proposition.” Veneri v. State, 474 S.W.2d 833, 840 (Mo.1971).

2024In order for the Railroad to demonstrate it has an attorney-client privilege which covers a communication between its counsel and B.F. as a lower level employee, it must show, inter alia: (1) the communication was made for the purpose of securing legal advice; (2) [B.F.,] the employee making the communication[,] did so at the direction of [her] corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of [B.F.’s] corporate duties; and (5) the communication is not disseminated beyond t

1991Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348 , 106 S.Ct. 1986 , 1990, 86 L.Ed.2d 372 (1986); Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 608 [13] (8th Cir.1978).

2014The court stated that “ ‘[n]o court should countenance an announced settlement between counsel followed by escape therefrom, if one side arbitrarily reneges and then seals his counsel’s lips by invoking the attorney-client privilege.’ ” Id. at 905 (quoting Hamilton v. Hamilton Steel Corp., 409 So.2d 1111, 1114 (Fla.App.1982)).

1992As the Florida Court of Appeals has noted, “[n]o court should countenance an announced settlement between counsel followed by escape therefrom, if one side arbitrarily reneges and then seals his counsel’s lips by invoking the attorney-client privilege.” Hamilton v. Hamilton Steel Corp., 409 So.2d 1111, 1114 (Fla.App.1982).

2012S.D.1998) (citing Chamberlin v. Mo. Elections Comm’n, 540 S.W.2d 876, 881 (Mo. banc 1976) (holding that “[w]hether the attorney-client privilege protects a particular communication ... must be determined on a case-to-case basis”)).

1998Chamberlin v. Missouri Elections Comm’n, 540 S.W.2d 876, 881 (Mo.banc 1976).

1979“Appellants concede that trial counsel may testify at 27.26 hearings when the issue pertains to effective assistance of trial counsel, Hand v. State, Mo., 447 S.W.2d 529 , State v. Rose, Mo., 440 S.W.2d 441 , but say that the waiver of privilege does not extend to all matters within the ambit of the attorney-client relationship, and we agree with this general proposition.” Veneri v. State, 474 S.W.2d 833, 840 (Mo.1971).

1976Hand v. State, 447 S.W.2d 529, 531 (Mo.1969) and Veneri v. State, 474 S.W.2d 833, 840 (Mo.1971).

2013Great American Insurance Co. v. Smith, 574 S.W.2d 379, 383 (Mo. banc 1978), the Missouri Supreme Court held in favor of a broad attorney-client privilege, stating: There clearly is a societal need for persons to be able to employ and consult with persons trained in the law for advice and guidance as to legal matters. ... [Confidentiality of the communications between client and attorney is essential for such relationships to be fostered and to be effective....

1984In Great American, the letters sought to be discovered were on their faces protected by the attorney-client privilege; an in camera proceeding was not necessary to reach that determination. 574 S.W.2d at 387 .

2008Id.

2008“Any communication between insured and insurer which relates to the former’s duty to report incidents and the latter’s duty to defend and to indemnify falls within the attorney-client privilege and is excluded from discovery under Rule 56.01(b)(1).” May, 699 S.W.2d at 136 .

2024Whether B.F.’s Statements to Railroad’s Counsel Were Protected by Virtue of the Railroad’s Attorney-Client Relationship with Counsel A corporation’s attorney-client privilege “covers counsel’s communications with both top management and lower level employees.” DeLaporte, 812 S.W.2d at 531 (citing Commodity Futures Trading Com’n v. Weintraub, 471 U.S. 343, 348 (1985)).

2010Stanislaus' attorney, "waived any claim of an alleged attorney-client privilege with respect to all communications with Krasnicki.” In support of its argument, Respondent relies on Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343 , 105 S.Ct. 1986 , 85 L.Ed.2d 372 (1985), where the Supreme Court held that “the power to waive the corporate attorney-client privilege rests with the corporation’s management and is normally exercised by its officers and directors.” Id. at 348 , 105 S.Ct. 1986 .

2021Peabody Coal Co. v. Clark, 863 S.W.2d 604, 607 (Mo. 1993).

2021The privilege applies only to a statement that constitutes an admission about a completed (or ongoing) crime, not a statement that constitutes a criminal act in itself, e.g., perjury. 4 In Peabody Coal, the Court held that, to invoke this “crime-fraud exception” to the attorney-client privilege, (1) “the seeking party must make a prima facie showing that the privileged party has committed a crime or fraud”; and (2) “the seeking party must demonstrate that the privileged information bears a direct and contemporaneous relationship to the crime or fraud alleged.” 863 S.W.2d at 608 (citations omit

2024Whether B.F.’s Statements to Railroad’s Counsel Were Protected by Virtue of the Railroad’s Attorney-Client Relationship with Counsel A corporation’s attorney-client privilege “covers counsel’s communications with both top management and lower level employees.” DeLaporte, 812 S.W.2d at 531 (citing Commodity Futures Trading Com’n v. Weintraub, 471 U.S. 343, 348 (1985)).

2024In order for the Railroad to demonstrate it has an attorney-client privilege which covers a communication between its counsel and B.F. as a lower level employee, it must show, inter alia: (1) the communication was made for the purpose of securing legal advice; (2) [B.F.,] the employee making the communication[,] did so at the direction of [her] corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of [B.F.’s] corporate duties; and (5) the communication is not disseminated beyond t

2018Id.

2018Id.

2017“The attorney-client privilege belongs to the client.” State v. Timmons, 956 S.W.2d 277, 285 (Mo.App.

1999State v. Timmons, 956 S.W.2d 277 (Mo.App.1997).

1995In Walton v. Van Camp, 283 S.W.2d 493 (Mo.1955), this Court found that upon a client’s death, the heirs contesting the client’s grant of a deed could waive the attorney-client privilege as to communications between decedent and his attorney.

1994Walton v. Van Camp, 283 S.W.2d 493, 499 (Mo.Div. 2 1955).

1987In State v. Carter, 641 S.W.2d 54 (Mo. banc 1982) the Supreme Court of Missouri, with no mention of McGautha , reaffirmed Swinburne, Cochran, Sapp and Speedy and stated “a defendant who pleads insanity waives all other privileges [in addition to physician-patient privilege,] including the attorney-client privilege, People v. Edney, [ 39 N.Y.2d 620 , 350 N.E.2d 400 , 385 N.Y.S. 2d 23 (N.Y.App.1976) ] and the privilege against self-incrimination.” Id. at 57.

1987In State v. Carter, 641 S.W.2d 54 (Mo. banc 1982) the Supreme Court of Missouri, with no mention of McGautha , reaffirmed Swinburne, Cochran, Sapp and Speedy and stated “a defendant who pleads insanity waives all other privileges [in addition to physician-patient privilege,] including the attorney-client privilege, People v. Edney, [ 39 N.Y.2d 620 , 350 N.E.2d 400 , 385 N.Y.S. 2d 23 (N.Y.App.1976) ] and the privilege against self-incrimination.” Id. at 57.

2024In order for the Railroad to demonstrate it has an attorney-client privilege which covers a communication between its counsel and B.F. as a lower level employee, it must show, inter alia: (1) the communication was made for the purpose of securing legal advice; (2) [B.F.,] the employee making the communication[,] did so at the direction of [her] corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of [B.F.’s] corporate duties; and (5) the communication is not disseminated beyond t

2024See id. at 81-92 .

2024Regarding doctor-patient privilege, Missouri courts hold the privilege is waived when a patient discloses “facts freely and publicly in the presence of third persons whose presence is not necessary to the patient’s treatment.”7 State v. Lewis, 735 S.W.2d 183, 187 (Mo.App. 1987) (citing State v. Scott, 491 S.W.2d 514, 519 (Mo. banc 1973)).

2024See also State v. Longo, 789 S.W.2d 812, 815 (Mo.App. 1990) (“The presence of a third party, not essential to the transmission of information or whose presence is not reasonably necessary for the protection of the client’s interest, belies the necessary element of confidentiality and vitiates the attorney-client privilege.”) (emphasis ours); State v. Shire, 850 S.W.2d 923, 931 (Mo.App. 1993) (“The presence of a third person, however, such as a relative or friend of the client, who is not essential to the transmission 6 Attorneys are incompetent to testify as to “any communication made to the a