Commonwealth v. Miller

By Judge J. Michael Gamble Mr. Phillip Payne, the Commonwealth’s Attorney, earlier moved the Court to issue a subpoena duces tecum, for the records of Bruce K. Tyler, Esq., the attorney who represented Ms. Miller on various civil matters in the past. Both Ms. Miller and Mr. Tyler have asserted the attorney-client privilege and requested that the Court deny the issuance of the subpoena duces tecum. I took this matter under advisement after hearing arguments of the attorneys on September 25, 2001.1 have received the written submissions of the attorneys directing the Court to certain case decisions. Upon consideration, I find that the subpoena duces tecum should be issued for the records and documents that I have specified below. Generally, confidential communications between attorney and client concerning a subject matter of the attorney’s employment are privileged from disclosure. Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718 (1914). This, however, is a privilege that is strictly construed. Commonwealth v. Edwards, 235 Va. 499, 509 (1988). The attorney-client privilege may be waived by the client either expressly or implied from the client’s conduct. Commonwealth v. Edwards, supra, at 509; Grant, supra, at 648-49. In the instant case, the defendant told the police officer transporting her to the Albemarle Regional Jail on September 13, 2001, that Bruce K. Tyler, her former lawyer, told her that she need not legally change her name to get a home equity loan or insurance benefits. I find that this constitutes an implied waiver of the attorney-client privilege. It is a communication to the police officer of information that would otherwise be [471] privileged because it was a communication from her lawyer to her in the course of his employment. This waiver not only waives the privilege as to any transmitted data, but also as to the details underlying that information. Commonwealth v. Edwards, supra, at 509-10. By virtue of this waiver, the Commonwealth’s Attorney may issue a subpoena duces tecum to obtain the following documents in the files of Mr Tyler: documents which were signed by Ms. Miller or drafted to be signed by Ms. Miller; deeds, deeds of trust, and life insurance policies which Ms. Miller signed or from which she received any benefits; written notes of Mr. Tyler which set forth any discussions with Ms. Miller about how she should sign any documents or obtain any benefits or money; any written communications from Ms. Miller to Mr. Tyler, or from Mr. Tyler to Ms. Miller, about how she should execute any documents or obtain any benefits.