Massachusetts Appeals Court Reverses Contempt Finding of Attorney who Refused to Produce Client Notes

In an important decision issued yesterday, the Massachusetts Appeals Court vacated a contempt finding against a criminal defense attorney, Donald Brisson, who disobeyed a trial judge’s order to produce notes related to his representation of clients.  The case is Commonwealth v. Derek Hunt.

The defendant was charged in connection with the 2003 shooting death of a 41-year-old married father of two children.  Attorney Brisson represented four potential witnesses for the Commonwealth who were cooperating in the case against the defendant, and who were described by the trial judge as “critical to the Commonwealth’s case.”

During the pendency of the case, in which the defendant was charged with murder and carrying a firearm without a license, Attorney Brisson’s clients expressed concerns that the defendant’s attorney and/or a defense investigator had acted improperly in an effort to influence their testimony at trial.  The four witnesses appeared before a separate grand jury that was investigating the claims against the defendant’s attorney and the defense investigator.

In the meantime, the defendant’s attorney filed a motion seeking a judicial order allowing her to subpoena all records, notes, documents, and recordings in Attorney Brisson’s possession that related to his representation of the four witnesses.  Attorney Brisson objected to the motion and argued that production of the requested materials would violate the attorney-client privilege and the work product privilege.  Following a hearing, the trial judge ordered Attorney Brisson to produce some of the materials that were sought by the defendant’s attorney.  Attorney Brisson disobeyed the trial judge’s order and was found in civil contempt.  He was ordered to pay $500 per day until he complied with the order for production of the documents.  Attorney Brisson appealed the contempt finding and penalty.  Meanwhile, the defendant’s murder trial proceeded and in February of 2012, he was found not guilty of murder and of carrying a firearm.

The Appeals Court ruled that the trial judge’s order that Attorney Brisson produce documents related to his representation of the Commonwealth witnesses was improper.  When the defendant’s attorney requested an order for Attorney Brisson to produce the documents, she filed an affidavit that stated she had “reason to believe” that non-privileged discovery would exist in Attorney Brisson’s notes that would be relevant to the defense of her client.  The Appeals Court wrote that the defendant’s attorney’s conclusory assertion that there would be relevant, non-privileged discovery in Attorney Brisson’s notes was insufficient.  Accordingly, the trial judge should not have issued the order for Attorney Brisson to produce the requested documents.  For those reasons, the Appeals Court vacated the order of contempt entered against Attorney Brisson.

The attorney-client privilege is sacred and, absent extraordinary circumstances, ought to be honored.  This case illustrates the brave stand that one attorney, Donald Brisson, took in refusing to violate the attorney-client privilege, even in the face of a contempt order issued by a superior court judge.  Our judicial system will not work if witnesses and clients do not believe that the communications with their attorneys will be protected from disclosure.  The Appeals Court’s ruling affirms that principle.