Moore v. United States En Banc

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CF-0687

BRIAN E. MOORE, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2018-CF3-011411)

(Hon. Craig Iscoe, Motions Judge)

(Hon. Milton C. Lee, Jr., Trial Judge)

(Argued En Banc February 29, 2024 Decided September 4, 2025)

Sean R. Day for appellant.

William Collins, Public Defender Service, with whom Samia Fam and Jaclyn

S. Frankfurt, Public Defender Service, were on the brief, as amicus curiae in support

of appellant.

Chrisellen R. Kolb, Assistant United States Attorney, with whom Matthew M.

Graves, United States Attorney at the time the brief was filed, and John P.

Mannarino and Katherine M. Kelly, Assistant United States Attorneys, were on the

brief, for appellee.

Graham E. Phillips, Deputy Solicitor General, with whom Brian L. Schwalb,

Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor

General for the District of Columbia, and Ashwin P. Phatak, Principal Deputy

Solicitor General, were on the brief, as amicus curiae in support of appellee.

2

Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH, EASTERLY,

MCLEESE, DEAHL, HOWARD, and SHANKER, Associate Judges.

Opinion for the court by Associate Judge SHANKER, with whom

BLACKBURNE-RIGSBY, Chief Judge, and MCLEESE and DEAHL, Associate Judges,

join.

Concurring opinion by Associate Judge MCLEESE at page 42.

Concurring opinion by Associate Judge DEAHL at page 47.

Dissenting opinion by Associate Judge EASTERLY, with whom BECKWITH and

HOWARD, Associate Judges, join, at page 61.

SHANKER, Associate Judge: Appellant Brian E. Moore twice told his attorney,

John Harvey, that he was going to kill the District of Columbia Assistant Attorney

General (AAG) prosecuting a criminal contempt case against him. First, Mr. Moore

stated that he was going to “shoot that bitch,” adding that he in fact owned guns.

Then, about two months later, and after Mr. Harvey had warned Mr. Moore that he

would take future threats seriously, Mr. Moore repeatedly exclaimed that he would

“bust a cap in this bitch,” again referring to the prosecutor. In response, Mr. Harvey

sought to withdraw from representing Mr. Moore and, upon a court order, disclosed

Mr. Moore’s threats. Mr. Harvey testified before a grand jury, which indicted

Mr. Moore; and he testified again at Mr. Moore’s trial, at the conclusion of which a

jury convicted Mr. Moore for threatening the AAG and obstructing justice.

On appeal, Mr. Moore argues that Mr. Harvey’s testimony was inadmissible

because his statements were protected by the attorney-client privilege. We disagree

3

and affirm the Superior Court’s admission of Mr. Harvey’s testimony. We hold that

criminal threats to cause death or substantial bodily harm fall outside the

attorney-client privilege.

I. Background

A. Factual Background

The evidence at trial supported the following. Mr. Harvey represented

Mr. Moore in a criminal contempt proceeding arising out of the allegation that

Mr. Moore violated a civil protective order by contacting his then-wife. On

April 12, 2018, during the criminal contempt trial, the AAG asked the court to place

Mr. Moore on GPS monitoring with an ankle bracelet. Mr. Harvey had previously

persuaded the trial court to remove the GPS monitoring, but the AAG sought

reconsideration of that ruling.

The AAG’s renewed attempts to impose GPS monitoring frustrated

Mr. Moore. According to Mr. Harvey, his conversation with Mr. Moore went as

follows. When they stepped into the hallway during a break in the proceedings,

Mr. Moore told Mr. Harvey: “Fuck that bitch. I hate this bitch.” In Mr. Harvey’s

experience—consisting of over thirty years as a criminal defense attorney—this kind

of anger was normal, and he explained to Mr. Moore that the AAG was just doing

4

her job. Unassuaged, Mr. Moore continued, “Man, fuck that bitch. Fuck that bitch.

I’ll shoot that bitch. Fuck that bitch.” “Man, what are you talking about?”

Mr. Harvey asked. Mr. Moore clarified, “That’s right, Harvey. I’ll shoot that bitch.”

Growing concerned, Mr. Harvey warned, “Man, I’m taking—you starting to make

me think you serious.” Mr. Moore reiterated, “God damn right, Harvey. Fuck that

bitch. I’ll shoot that bitch.” In case the message was not clear, Mr. Moore added

that he in fact owned guns—at least according to Mr. Harvey’s grand-jury testimony,

which Mr. Harvey did not repeat at trial.

At this point, Mr. Harvey tried to withdraw from the representation. He told

Mr. Moore that he could no longer “be a part of this” and was “going to have to

withdraw.” “I don’t give a fuck what you do, Harvey,” answered Mr. Moore. “I

don’t give a fuck.”

Mr. Harvey reached out to “Bar Counsel” and asked what he should do.

According to Mr. Harvey, he learned that he was permitted to disclose the threats to

the court but that the decision was up to him.

Mr. Harvey decided not to disclose Mr. Moore’s statements. He nevertheless

asked the court to let him withdraw from the representation. He invoked D.C. R.

Pro. Conduct 1.16(b), which permits attorneys to “withdraw from representing a

client if,” among other things, “[t]he client persists in a course of action involving

5

the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent”

or “[t]he client has used the lawyer’s services to perpetrate a crime or fraud.” D.C.

R. Pro. Conduct 1.16(b). Mr. Harvey did not invoke Rule 1.6, which permits, but

does not require, attorneys to disclose confidential communications when they

believe disclosure is reasonably necessary “to prevent a criminal act . . . likely to

result in death or substantial bodily harm absent disclosure.” Id. R. 1.6(c).

Mr. Harvey testified that, “at that point, [he] had not reached a decision to reveal the

information.” The trial court declined Mr. Harvey’s request to withdraw, because

Mr. Harvey refused to explain why he wanted to withdraw and what Mr. Moore had

said.

Uncertain how to proceed, Mr. Harvey spoke with Mr. Moore again.

Mr. Moore recanted his earlier statements and explained that he “was just

bullshitting” and “didn’t mean it.” Mr. Harvey warned that he would believe

Mr. Moore if he threatened to shoot someone again. “I won’t say nothing like that

again,” Mr. Moore promised. “I was just bullshitting.” Mr. Harvey continued

representing Mr. Moore.

The trial paused for about two months due to scheduling issues, and when it

resumed on June 29 the AAG raised new concerns about Mr. Moore and once again

requested ankle monitoring. The trial court agreed to place Mr. Moore under GPS

6

tracking to ensure his compliance with court orders. Because the proceeding

wrapped up late, there was no time to fit Mr. Moore with the ankle bracelet that day.

Worse still, because it was a Friday, Mr. Moore would have to be in the District on

Monday morning to fit the tracker.

The situation angered Mr. Moore. He had a training seminar for a new job

Monday morning in North Carolina, and he feared he would miss the training and

lose the job as a result. Upon entering the hallway outside the courtroom,

Mr. Moore—according to Mr. Harvey’s testimony—said: “Harvey, if I lose my job,

I’m going to bust a cap in this bitch[;] I’m going to bust a cap in this bitch.” “Man,

what are you doing?” asked Mr. Harvey. “Man, fuck this bitch. If I lose my job,

I’m going to bust a cap in this bitch,” Mr. Moore repeated. He then made a shooting

gesture, which a security camera caught. “I told you what I was going to do if you

ever said something like that to me again,” warned Mr. Harvey. “Fuck her. Fuck

you,” retorted Mr. Moore.

Mr. Harvey approached the court and again asked to withdraw. He told the

court that he could no longer represent Mr. Moore and that, if the court ordered him

to explain why, he would. The court ordered him to disclose the reason. Mr. Harvey

told the court that Mr. Moore had threatened to shoot the AAG. The court directed

a marshal to take Mr. Moore into custody. A few days later, despite expressing some

7

skepticism about the sincerity of Mr. Moore’s threats, the court granted

Mr. Harvey’s request to withdraw. It granted the request largely because

Mr. Harvey had represented that his relationship with Mr. Moore had deteriorated to

the point where he could no longer adequately represent Mr. Moore.

B. Procedural Background

The United States impaneled a grand jury to inquire into Mr. Moore’s alleged

conduct. The government called Mr. Harvey as a witness. As far as the record

reflects, Mr. Harvey did not invoke the attorney-client privilege on Mr. Moore’s

behalf, and Mr. Moore had no opportunity to invoke the privilege himself.

Mr. Harvey testified about his two hallway conversations with Mr. Moore and the

threatening statements. The grand jury charged Mr. Moore with two counts of

obstruction of justice, D.C. Code § 22-722(a)(5), and two counts of threatening a

public official, D.C. Code § 22-851(c). The two counts for each offense

corresponded to the two days on which Mr. Moore made the threats: April 12 and

June 29. The case was assigned to a different judge from the one who presided over

Mr. Moore’s criminal contempt case.

At a pretrial hearing, Mr. Moore moved to exclude Mr. Harvey’s testimony

because the attorney-client privilege rendered the testimony inadmissible. He also

denied making any threatening statements and testified that “Mr. Harvey flat[ ]out

8

lied.” Assuming the truth of Mr. Harvey’s testimony, the trial court concluded that

neither Mr. Moore’s April 12 nor June 29 threats were made for the purpose of

obtaining legal assistance. The statements were, according to the court, unrelated

“to anything except the desire to kill the prosecutor[,] and that is not a legal purpose

in the sense of seeking legal advice.” The court emphasized that “the repeated nature

of the statements made clear that [they were] not just ill-advised[;] [they were] well

thought out.” Moreover, Mr. Harvey’s warning to Mr. Moore that he would disclose

the statements if Mr. Moore repeated them was also powerful evidence to the trial

court that the statements were not related to a legal purpose. Accordingly, the trial

court concluded that Mr. Harvey’s testimony was not privileged.

The case proceeded to trial, during which Mr. Harvey testified as described

above. After hearing Mr. Harvey’s testimony and seeing the security-camera

footage of the June 29 hallway conversation, the jury convicted Mr. Moore on all

counts. The trial court sentenced Mr. Moore to eight years in prison to be followed

by five years of supervised release. It also assessed a $400 fee under the Victims of

Violent Crime Compensation Act.

Mr. Moore appealed his convictions. He raised four types of arguments on

appeal:

(1) the attorney-client privilege protected Mr. Moore’s statements to

Mr. Harvey and thus those statements were inadmissible;

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(2) the government presented insufficient evidence to convict him because it

did not prove that he intended for his threats to reach the target;

(3) the trial court improperly instructed the jury; and

(4) the trial court infringed on Mr. Moore’s right to testify in his own defense.

A divided division of this court vacated Mr. Moore’s convictions, addressing

only the first two arguments: the sufficiency of the evidence and the attorney-client

privilege. Moore v. United States, 285 A.3d 228, 232 (D.C. 2022). The full division

concluded that the government presented sufficient evidence to support the

convictions, but the majority vacated Mr. Moore’s convictions on the ground that

his statements to Mr. Harvey were privileged and the error in admitting them was

not harmless. Id. Judge Thompson dissented because, in her view, Mr. Moore did

not utter his threats for the purpose of obtaining legal services and thus the privilege

did not apply to them. Id. at 253 (Thompson, J., dissenting).

We granted the United States’ petition for en banc review and vacated the

division’s decision. Moore v. United States, No. 19-CF-0687, 2023 WL 3674377,

at *1 (D.C. May 25, 2023) (per curiam). Because the government’s petition, amicus

curiae’s brief in support of the petition, and Mr. Moore’s opposition to the petition

all addressed only the attorney-client privilege, we ordered the parties to brief and

argue only that issue. Moore v. United States, No. 19-CF-0687 (D.C. June 13, 2023)

(order). We therefore reinstate Part I of the division opinion, which concerned the

10

sufficiency of the evidence against Mr. Moore. We address today only the

attorney-client-privilege issue and return the case to the division for consideration

of Mr. Moore’s remaining arguments regarding the jury instructions and his right to

testify.

II. Analysis

Mr. Moore asserts that the threats against the prosecutor that he expressed to

Mr. Harvey were protected by the attorney-client privilege and, therefore,

Mr. Harvey’s testimony about the threats should not have been admitted into

evidence. Reviewing de novo because we are addressing the scope of the

attorney-client privilege, see In re Pub. Def. Serv., 831 A.2d 890, 898 (D.C. 2003),

we disagree. We hold that the attorney-client privilege excludes from its protection

criminal threats to cause death or serious bodily harm.

The attorney-client privilege “is not absolute.” Adams v. Franklin, 924 A.2d

993, 999 (D.C. 2007). We have declined to apply the privilege where it would

exceed, or defeat, its purpose. See id. at 998. Because the privilege is a creature of

common law in the District, In re Ti.B., 762 A.2d 20, 27-28 (D.C. 2000), we need

not mechanically apply it in every circumstance where the traditional elements of

the privilege are met. Rather, it falls to us to construe the privilege, and we may

recognize exceptions where appropriate. Cf. Perez Hernandez v. United States, 286

11

A.3d 990, 996 (D.C. 2022) (en banc) (rejecting the view that the District’s common

law is frozen). Indeed, courts have acknowledged numerous exceptions to the

attorney-client privilege over the years. See generally Edward J. Imwinkelried, The

New Wigmore: Evidentiary Privileges § 6.13.2 (2d ed. 2009) (discussing exceptions

to evidentiary privileges, including the crime/fraud exception and self-defense

exception).

Thus, we decline to rely on a conclusion that serious, objectively credible 1

threats do not meet the elements of the attorney-client privilege—for example,

because they necessarily are not related to the legal representation or do not seek

legal advice, or because a client who utters a threat to cause death or serious bodily

harm can have no reasonable expectation of confidentiality in their communications.

Nor do we find it necessary to decide whether all serious threats uttered to an

attorney fall under the crime/fraud exception to the privilege. Instead, we hold that

a client’s commission of a new, completed, serious threat crime qualifies as an abuse

of the privilege that justifies an exception to the privilege’s ordinary application.

1

We use this “objectively credible” label to refer to a key element of the actus

reus of a threat crime: that “the ordinary hearer [would] reasonably . . . believe that

the threatened harm would take place.” Carrell v. United States, 165 A.3d 314,

319-20 (D.C. 2017) (en banc) (alterations in original) (internal quotation marks

omitted).

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A. The Attorney-Client Privilege Generally

The attorney-client privilege constitutes a “narrow exception[ ] to the general

rule that every person must offer testimony upon all facts relevant to a judicial

proceeding.” Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 551 (D.C. 1981); see

also Trump v. Vance, 140 S. Ct. 2412, 2420 (2020) (“In our judicial system, ‘the

public has a right to every man’s evidence.’” (quote attributed to Lord Chancellor

Hardwicke)). Typically, we assume that increased access to relevant evidence

enhances the truth-seeking function of judicial proceedings, yielding more accurate

and just results. See United States v. Nixon, 418 U.S. 683, 709 (1974) (“The very

integrity of the judicial system and public confidence in the system depend on full

disclosure of all the facts, within the framework of the rules of evidence. To ensure

that justice is done, it is imperative to the function of courts that compulsory process

be available for the production of evidence needed either by the prosecution or by

the defense.”). That is why evidentiary privileges, which prevent witnesses from

offering relevant—sometimes critical—evidence, in some sense operate “in

derogation of the search for truth.” Id. at 710.

Nevertheless, American jurisdictions tolerate this “derogation” because of the

countervailing policies underlying privileges. Commentators and courts justify the

attorney-client privilege by, for instance, arguing (1) that fostering candor between

13

attorney and client leads to the more efficient, fair, and accurate administration of

justice, see United States v. Zolin, 491 U.S. 554, 562 (1989); (2) that certain

relationships, including the relationship between attorney and client, fall within

“privacy enclaves” into which the state and opposing parties cannot penetrate, see

1 Kenneth S. Broun et al., McCormick on Evidence § 72 (9th ed.); or (3) that a

lawyer testifying against his client constitutes a moral betrayal, 24 Charles A. Wright

et al., Federal Practice and Procedure § 5472 (1st ed.).

But the endorsement by courts—including this court—of the above policies

is not absolute; the attorney-client privilege applies only where the communication

at issue meets specific requirements. We have generally followed the Wigmore test,

which provides that:

(1) where legal advice of any kind is sought (2) from a

professional legal advisor in his capacity as such, (3) the

communications relating to that purpose, (4) made in

confidence (5) by the client, (6) are at his instance

permanently protected (7) from disclosure by himself or

by the legal adviser, (8) except the protection be waived.

Jones v. United States, 828 A.2d 169, 175 (D.C. 2003) (quoting 8 John Henry

Wigmore, Evidence in Trials at Common Law § 2292 (McNaughton Rev. 1961)).

And even where these requirements are met, the privilege is still subject to a

variety of exceptions. For instance, although this court has not yet addressed such a

situation, many courts recognize an exception to the attorney-client privilege where

14

an attorney brings an action against their client for lack of payment. E.g., Squires

Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 937 N.E.2d 533, 541 (Ohio

2010); see 8 Wigmore, supra, § 2312; Imwinkelried, supra, § 6.13.2(a). In addition,

and closest to this case, we exempt from the attorney-client privilege at least some

“communications made for the purpose of getting advice for the commission of a

fraud or crime.” In re Pub. Def. Serv., 831 A.2d at 901-02 (quoting Zolin, 491 U.S.

at 563).

So the attorney-client privilege does not encompass all attorney-client

communications, and even those communications which it does cover may be

subject to exceptions pursuant to overriding policy concerns. Those overriding

policy concerns exist, in our view, in the context of criminal threats. Before

explaining why, some background on these threats is in order.

B. Criminal Threats

To commit a threat crime, 2 a defendant must engage in a “defined actus reus”;

he must “(1) utter[ ] words to another person (2) with a result that the ordinary hearer

2

Many of this court’s threats cases involve a different threats statute than that

used to convict Mr. Moore; they concern either the misdemeanor threats statute,

D.C. Code § 22-407, or the felony threats statute, D.C. Code § 22-1810. See Gray

v. United States, 100 A.3d 129, 132 n.1 (D.C. 2015) (as amended); Carrell, 165 A.3d

at 319-20 (discussing the two threats statutes). Mr. Moore, however, was convicted

15

[would] reasonably . . . believe that the threatened harm would take place.” Carrell,

165 A.3d at 319-20 (first alteration added) (internal quotation marks and footnote

omitted). And the act alone is not sufficient; the defendant must act either (1) “with

the purpose to threaten,” (2) “with knowledge that his words would be perceived as

a threat,” or perhaps (3) with reckless disregard for how his words would be

perceived. Id. at 324.

Despite constituting a communication, a criminal threat is itself a completed

crime. See Evans v. United States, 779 A.2d 891, 894 (D.C. 2001) (contrasting

criminal threats with attempted criminal threats). Indeed, unlike an attempt crime,

one need not intend to follow through on the threat for it to be criminal. See Carrell,

165 A.3d at 323; cf. United States v. Resendiz-Ponce, 549 U.S. 102, 106 (2007)

(observing that attempt crimes require proof that the defendant “intended to commit

the completed offense”). We proscribe threats separately from attempts because

threats impart additional harms beyond the injury of mere attempt crimes. See

Rogers v. United States, 422 U.S. 35, 46-47 (1975) (Marshall, J., concurring)

under D.C. Code § 22-851(c), which specifically prohibits threats against public

officials. Id. (“A person who stalks, threatens, assaults, kidnaps, or injures any

official or employee . . . while the official or employee is engaged in the

performance of his or her duties or on account of the performance of those

duties . . . .”). Whatever differences may exist between these statutes, we assume

for the purposes of our analysis that what it means to issue a threat is the same under

each statute.

16

(“Plainly, threats may be costly and dangerous to society in a variety of ways, even

when their authors have no intention whatever of carrying them out.”). These harms

include sowing fear and intimidating others into acquiescing to demands. See

Virginia v. Black, 538 U.S. 343, 359-60 (2003) (“[A] prohibition on true threats

‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear

engenders,’ in addition to protecting people ‘from the possibility that the threatened

violence will occur.’” (second alteration in original) (quoting R.A.V. v. City of St.

Paul, 505 U.S. 377, 388 (1992))); Jennifer E. Rothman, Freedom of Speech and True

Threats, 25 Harv. J.L. & Pub. Pol’y 283, 290-93 (2001) (enumerating the rationales

for proscribing threats).

Such harms are not limited to the target of the threat, i.e., the person whom

the defendant states they will harm, but instead extend to all who hear the threat.

One who hears someone utter an objectively credible threat against the life and limb

of another is likely to be intimidated themselves. See, e.g., United States v. Ivers,

967 F.3d 709, 716 (8th Cir. 2020) (noting that two attorneys who heard a defendant’s

threat “were frightened by what [the defendant] had said” even though the threat was

not directed at them); State v. Taupier, 193 A.3d 1, 33 (Conn. 2018) (recognizing

that a third party who heard a threat targeted at someone else feared for her own

safety). Indeed, in at least partial recognition of this principle, a threat need not

necessarily reach its target to be punishable. See Moore, 285 A.3d at 236 (rejecting

17

Mr. Moore’s argument that he could not be convicted of uttering a criminal threat

unless the government proved that he specifically intended for his threat to reach its

target); United States v. Baish, 460 A.2d 38, 42 (D.C. 1983) (explaining that the

threatening message must have been “conveyed to someone—either to the object of

the threat or to a third party” (emphasis added)); United States v. Khan, 937 F.3d

1042, 1051 (7th Cir. 2019) (“[A] true threat does not need to be communicated

directly to the intended victim.”); Porter v. Ascension Parish Sch. Bd., 393 F.3d 608,

616 (5th Cir. 2004) (“[To] be lawfully punished, the threat must be intentionally or

knowingly communicated to either the object of the threat or a third person.”)

(emphasis omitted)); Taupier, 193 A.3d at 30-31 & n.27 (collecting cases). 3

Finally, the harms associated with criminal threats are severe enough to

overcome otherwise applicable policies, even those of constitutional dimension. See

Counterman v. Colorado, 600 U.S. 66, 74 (2023) (explaining that true threats of

violence constitute a “historically unprotected category of communications” where

the First Amendment is concerned).

3

The Supreme Court of Connecticut in Taupier justified the criminalization

of indirect threats by reasoning that a serious threat issued only to third parties will

often be communicated to its target. Id. at 32. We respectfully disagree with

Taupier, however, to the extent it suggests that threats are condemnable based only

on the harm they cause to their targets. Cf. id. at 33 (affirming a disorderly-conduct

conviction based on the harm the defendant’s threat caused to a third party who heard

it).

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C. The Threats Exception

With these preliminary principles in mind, we turn to the question before us:

whether the attorney-client privilege shields threats like Mr. Moore’s. Rather than

parsing whether Mr. Moore’s statements meet the technical elements of the

attorney-client privilege, we hold that even if the threats met the privilege’s ordinary

requirements, the privilege would still not apply for a more fundamental reason. The

attorney-client privilege does not protect communications that themselves constitute

criminal threats to cause death or substantial bodily harm. We reach this conclusion

because exempting serious, objectively credible threats from the attorney-client

privilege (1) prevents clients from abusing the privilege (and therefore flows

logically from the foundation for the crime/fraud exception to the privilege) and

(2) is grounded in strong historical roots.

1. Abuse of the privilege

We begin at common ground. Our dissenting colleagues recognize that the

attorney-client privilege does “not apply where the attorney-client relationship is

being ‘misused’ or ‘abused’ to advance criminal ends.” Post dissent at 73 (quoting

In re Pub. Def. Serv., 831 A.2d at 909-10). We concur. The difference between our

view and that of the dissent, however, flows from how we define “abuse” and

“advanc[ing] criminal ends.” In our view, uttering a serious, criminal threat in the

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presence of one’s attorney constitutes an abuse of the attorney-client relationship

and therefore precludes application of the attorney-client privilege to the

communication that constitutes the threat. In the dissent’s view, it does not. We

explain below why we think our position is the correct one.

Our reasoning is similar 4 to that underlying the crime/fraud exception to the

attorney-client privilege. One of the ways in which we have defined this exception

is as follows: the “attorney-client privilege does not apply to a communication

occurring when a client, . . . regardless of the client’s purpose at the time of

consultation [with her lawyer], uses the lawyer’s advice or other services to engage

in or assist a crime or fraud.” In re Pub. Def. Serv., 831 A.2d at 908 (quoting

Restatement (Third) of the Law Governing Lawyers § 82 (2000)). This exception,

as we alluded to above, rests on the idea that a client “abuses” her relationship with

her attorney by using the relationship to commit an unlawful act. See id. at 908.

To allow a client who utters a criminal threat in the presence of her attorney

to avail herself of the attorney-client privilege would be to countenance just such an

abuse. Outside of the context of her relationship with her attorney, the client could

4

Mr. Moore and the dissent argue that this jurisdiction’s crime/fraud

exception does not apply to his threats, primarily contending that the exception is

irrelevant unless the attorney’s services further the commission of a crime. But

because, rather than rely on the crime/fraud exception, we craft a new exception for

criminal threats, we need not address the crime/fraud exception’s scope here.

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not utter criminal threats in an effort to intimidate those around her; if frustrated with

a delay in her Starbucks order, for instance, the client could not in the presence of

another customer threaten to kill the barista. But if the client were frustrated with a

delay in her legal proceeding, the client could threaten to kill someone in the

courthouse—safe in the knowledge that her attorney could not be called to testify

about the threat—and subject her attorney to the discomfort, fear, or outrage 5 that

may stem from hearing objectively credible threats. We would call such a course of

action an abuse of the attorney-client relationship—our hypothetical client uses a

privilege designed to strengthen the relationship between her and her attorney to

enable her to commit a criminal act that will likely harm her relationship with her

attorney. That is an abuse. 6 See Edward J. Imwinkelried, supra, § 6.13.2(d) (“The

5

Mr. Harvey’s response to Mr. Moore’s threats exemplifies this point—he

was disturbed by Mr. Moore’s threats. After the first threat, he indicated he did “not

want to participate” in Mr. Moore’s plans and “labored over” the dilemma Mr.

Moore had placed him in. The seriousness with which he approached Mr. Moore’s

first threat is evident from how he spoke with Mr. Moore afterward—he said, “You

will never, ever use this kind of language with me about anybody . . . .” And when

Mr. Moore threatened the AAG for a second time, Mr. Harvey was “so

concerned”—indeed, “extremely concerned”—that he interrupted a hearing to ask

the presiding judge to recall Mr. Moore’s case.

6

In response to this concern, the dissent tells attorneys to toughen up,

suggesting that to be discomfited by hearing a criminal threat makes one a “pearl-

clutching milquetoast[ ].” Post dissent at 102 & n.28. We, however, are not

persuaded that an attorney—as a condition of engaging in client representation—

must assent to being at least a witness to a crime. Nor are we convinced by the

21

law attempts to remove disincentives to lawful consultations ‘but not at the price of

encouraging illegal conduct.’” (quoting Am. L. Inst., Model Code of Evidence 162

(1942))).

We need not and do not rest this exception solely on harm to the attorney and

her relationship with her client. Allow us to tweak the above hypothetical. The

client now has a hard-boiled attorney who is not intimidated by her client’s threat to

a third party. But the attorney feels morally obligated to report the threat to law

enforcement, who in turn warn the threat’s target. And the target, not as accustomed

to danger as is the hard-boiled attorney, is terrified. Here again we have an abuse.

The client in this hypothetical has sowed exactly the harm at the core of the

prohibition against criminal threats—she has caused the target of her threat to fear

dissent’s suggestion that because an attorney may hear a client describe a past crime,

she will not suffer if she is present when her client commits a crime.

We recognize, of course, that the Ninth Circuit has embraced similar logic to

that of the dissent in the context of the psychotherapist-patient privilege. Sitting en

banc, that court held that threats against federal officers communicated to the

defendant’s psychiatrist were privileged because “[o]nce [he] finished uttering the

threats, the charged crime was completed, and the psychiatrist was in the same

position she would have occupied had her patient described a bank robbery in which

he had participated a week earlier.” United States v. Chase, 340 F.3d 978, 982 &

n.1 (9th Cir. 2003) (en banc). Our response to the Ninth Circuit is similar to our

response to the dissent—we respectfully disagree that hearing one’s client issue a

threat is the same as listening to one’s client describe a past bank robbery. It is

closer, we think, to watching one’s client rob the bank.

22

for their life. 7 See Black, 538 U.S. at 360. To allow a client to sow fear, through

their attorney and free of consequence, is to allow an abuse of the attorney-client

privilege. 8 See 1 Kenneth S. Broun et al., McCormick on Evidence § 95 (8th ed.

2022) (“The privileged communications may be a shield of defense as to crimes

already committed, but it cannot be used as a sword or weapon of offense to enable

7

As the District observes, clients threatening those involved in their case

(such as attorneys) is not a mere theoretical concern. See, e.g., Haney v. United

States, 41 A.3d 1227, 1229 (D.C. 2012) (threatening a testifying police officer); In

re Grand Jury Investigation, 902 N.E.2d 929, 930 (Mass. 2009) (communicating to

counsel a threat to kill the judge); State v. Perkins, 626 N.W.2d 762, 765 (Wis. 2001)

(threatening a judge); United States v. Tanner, 26 F. App’x 469, 470, 472 (6th Cir.

2001) (per curiam) (nonprecedential) (threatening to harm counsel). And trial

participants have good reason to fear such threats. See, e.g., Jenkins v. United States,

80 A.3d 978, 996-97 (D.C. 2013) (upholding a trial court’s finding that the

defendants were involved in the shooting of a potential witness in order to prevent

his testimony); Ward v. United States, 55 A.3d 840, 849 (D.C. 2012) (concluding

that sufficient evidence supported the trial court’s finding that the defendant hired

his codefendant to kill an adverse witness); Roberson v. United States, 961 A.2d

1092, 1096-97 (D.C. 2008) (upholding a trial court’s finding that the defendant

conspired to murder a witness to prevent him from cooperating with the

prosecution).

8

The dissent suggests that the above circumstance cannot constitute an abuse

because one who threatens someone in the presence of their attorney likely does not

intend for their attorney to pass the threat on to law enforcement. But in the

now-reinstated portion of the division opinion in this case, this court held that one

who utters a threat may be convicted without proof that she intended the threat to

reach its target. Moore, 285 A.3d at 236. We question, therefore, why the client’s

intent with respect to the dissemination of their threat bears on the abuse question.

Instead, what makes the above circumstance an abuse is the effect of the (likely)

disclosure on the threat’s target.

23

persons to carry out contemplated crimes against society.” (quoting Gebhardt v.

United Rys. Co. of St. Louis, 220 S.W. 677, 679 (Mo. 1920))).

Although our dissenting colleagues vigorously contest our above reasoning,

they are unwilling to commit to complete application of the attorney-client privilege

to criminal threats; they are silent as to whether “a threat of death or serious bodily

injury against the lawyer themself could constitute an abuse of the relationship such

that the privilege should not apply.” Post dissent at 104 n.30.

For two reasons, we see no merit in such a distinction. First, objectively

credible threats can inspire fear, intimidation, or other strong emotion in the listening

party even if the threatened violence will fall on someone else. See Ivers, 967 F.3d

at 716. Second, and relatedly, our criminal-threat statutes do not make distinctions

based on a threat’s target but instead punish both threats targeted at third parties and

threats targeted at the listener. See Carrell, 165 A.3d at 320. This is so in part

because—as was the case here—third parties who hear objectively credible threats

are often likely to pass them on to their targets. See Taupier, 193 A.3d at 32.

We also find the dissent’s silence regarding attorney-target threats telling. In

our view, the dissent’s reluctance to commit reflects its belief that attorney-targeted

threats are more harmful than are threats directed at third parties. If we are right

about that, then the dispute between the majority and the dissent is grounded not in

24

principle, but instead in line-drawing—how much harm is enough to constitute an

abuse? For the reasons stated above, we are confident in where we have drawn that

line. Because making a serious, criminal threat in the presence of one’s attorney

constitutes an abuse of the attorney-client relationship, the attorney-client privilege

does not protect the communication constituting the threat.

2. Historical Support

Treating criminal threats uttered to an attorney as unprivileged not only fits

well with the reasoning underlying the crime/fraud exception but also finds strong

historical footing. In the first half of the nineteenth century, a widely read New York

case explained that when a client “is not disclosing what has already happened, but

is actually engaged in committing the wrong, he can have no privileged witness.”

Coveney v. Tannahill, 1 Hill 33, 41 (N.Y. Sup. Ct. 1841) (citing Greenough v.

Gaskell (1833) 39 Eng. Rep. 618; 1 MY. & K. 98); see also 8 Wigmore, supra,

§ 2298 (quoting Coveney at length). Since then, many American courts have

excluded from the attorney-client privilege the commission of crimes completed in

the presence of the attorney. 9

9

See State v. Mewherter, 46 Iowa 88, 94 (1877) (concluding that the client’s

threats were unprivileged because they “in no manner pertained to the business of

the professional consultation” but declining to address whether “threats[,] in the

25

To be sure, the cases from other jurisdictions do not all mirror the rule we

adopt today, nor need we endorse their particular holdings. The point remains,

however, that in each case the court either (a) suggested that crimes—or at least

threats—completed in the presence of the attorney were not privileged or

view of their unlawfulness,” were categorically deprived “of the character of a

privileged communication”); McMannus v. State, 39 Tenn. 213, 216 (1858) (“It

would be monstrous to hold, that if counsel was asked and obtained, in reference to

a contemplated crime, that the lips of the attorney would be sealed, when the fact

might become important to the ends of justice in the prosecution of crime. In such

a case[,] the relation cannot be taken to exist. Public policy would forbid it. We

presume the rule has never been extended so far, nor will it be.”); Hopkinson v. State,

632 P.2d 79, 116 (Wyo. 1981) (“We cannot imagine a threat of injury made by a

client toward the family and property of an attorney as being privileged and within

those communications protected.”); State v. Hansen, 862 P.2d 117, 121 (Wash.

1993) (“If an attorney-client relationship could have been found to exist when

Hansen made the threat against the judge, the prosecutor, and the public defender,

the privilege would still not apply. The attorney-client privilege is not applicable to

a client’s remarks concerning the furtherance of a crime, fraud, or to conversations

regarding the contemplation of a future crime.”); United States v. Alexander, 287

F.3d 811, 816 (9th Cir. 2002) (“Alexander’s threats to commit violent acts against

[his counsel] and others were clearly not communications in order to obtain legal

advice.”), abrogated on other grounds by United States v. Plouffe, 445 F.3d 1126,

1129 (9th Cir. 2006); United States v. Ivers, 967 F.3d 709, 716 (8th Cir. 2020)

(“Threats of violence are not statements that fall under the scope of the

attorney-client privilege.”); see also People v. Dang, 113 Cal. Rptr. 2d 763, 766-67

(Ct. App. 2001) (holding that a California statutory evidence rule prohibits

application of the attorney-client privilege to a client’s threat to kill a witness);

semble State v. Nixon, 207 P. 854, 855 (Kan. 1922) (quoting, with apparent approval,

the trial court’s hypothetical that “I don’t think anybody would claim that, if the

defendant had gone into [the attorney’s] office, and said to him, ‘I am going to kill

[the victim],’ and then consulted with him, it would claim such a matter was

privileged”); Jackson v. State, 293 S.W. 539, 540 (Tenn. 1927) (“[T]hreats made by

a client against the life of a person during a professional consultation with his

attorney are not privileged.” (quoting 28 Ruling Case Law 559, 560)).

26

(b) concluded that the specific threat or crime before it was not privileged. We thus

break little new ground in holding today that serious threats issued to an attorney fall

outside the attorney-client privilege.

We are aware of only two contrary precedents, and neither persuades us. See

In re Grand Jury Investigation, 902 N.E.2d 929 (Mass. 2009); State v. Boatwright,

401 P.3d 657 (Kan. Ct. App. 2017). 10 In In re Grand Jury Investigation, a case

10

Mr. Moore directs us to two slightly older cases as well: Purcell v. District

Attorney, 676 N.E.2d 436 (Mass. 1997), and Newman v. State, 863 A.2d 321 (Md.

2004). We do not see our holding as in direct conflict with either case because

neither case involved a criminal threat, and Purcell did not even involve a completed

crime. Purcell concerned alleged attempted arson, and the court concluded only that

“[a] statement of an intention to commit a crime made in the course of seeking legal

advice is protected by the privilege.” Purcell, 676 N.E.2d at 438, 441. Newman, on

the other hand, involved the agreement portion of a conspiracy, which is sufficient

to complete the crime of conspiracy under Maryland law (even if it would not suffice

under the District of Columbia’s general conspiracy statute). Newman, 863 A.2d at

324. Compare Belton v. United States, 581 A.2d 1205, 1209 (D.C. 1990) (requiring,

beyond an agreement to commit a crime, “at least one overt act . . . in furtherance of

the common scheme”), with Townes v. State, 548 A.2d 832, 834 (Md. 1988) (“In

Maryland, the crime [of conspiracy] is complete when the unlawful agreement is

reached, and no overt act in furtherance of the agreement need be shown.”).

Nevertheless, Newman did not concern a completed criminal threat, and the court in

Newman addressed only the crime/fraud exception and held that a mere statement of

intent to commit a crime was insufficient for application of the exception—a

question we do not reach today. Newman, 863 A.2d at 335 (“We . . . join our

colleagues on both the federal and state levels who have required more than a mere

statement of the intent to commit a crime or fraud to trigger the crime-fraud

exception to the attorney-client privilege.”). Neither the Purcell nor the Newman

court had occasion to opine on whether the privilege would apply specifically to the

crime of criminal threats. For reasons discussed above, we see this distinction as

significant.

27

involving a client’s alleged threat to harm a judge and her family, the Massachusetts

Supreme Judicial Court held “that a client’s communications to his lawyer

threatening harm are privileged unless the crime-fraud exception applies.” 902

N.E.2d at 930, 934. The court explained that “[i]f a lawyer suspects that the client

intends to act on an expressed intent to commit a crime, the lawyer may attempt to

dissuade the client from such action, and failing that, may make a limited disclosure

to protect the likely targets.” Id. at 933. The Kansas Court of Appeals reached a

similar result. It held that a client’s criminal threat to kill his ex-fiancée fell within

the attorney-client privilege because the alternative approach might disincentivize

clients from communicating threats to the attorney and discourage attorneys from

warning the targets. See Boatwright, 401 P.3d at 660-61, 664. Mr. Moore urges us

to follow suit.

The Massachusetts court justified its holding primarily by reference to a

previous case, in which it held that “a statement of an intention to commit a crime

made in the course of seeking legal advice is protected by the privilege, unless the

The dissent finds these distinguishing factors unpersuasive because, in its

view, there is no meaningful difference between the statements in Purcell and

Newman and completed threats. For the reasons articulated above, we do not see

our holding as conflicting with Purcell and Newman. But if those cases indeed stand

for the proposition that the attorney-client privilege covers completed criminal

threats of death or serious bodily injury, then we find them unpersuasive for the same

reasons we are unpersuaded by In re Grand Jury Investigation and Boatwright.

28

crime-fraud exception applies.” In re Grand Jury Investigation, 902 N.E.2d at

932-33 (internal quotation marks omitted). It saw “no reason to depart” from that

decision in the context of threats. Id. at 933. But we see a great deal of difference

between a mere statement of intention to commit a crime and a criminal threat of

serious bodily harm or death—as we explained above, serious, objectively credible

criminal threats sow fear and intimidation in a way that other statements of intention

may not. This difference in degree of harm justifies different treatment where the

attorney-client privilege is concerned.

The Kansas court’s justification fares no better—although it suggests that

permitting attorneys to disclose their clients’ threats to authorities or the targets

would remedy the harm posed (at least to the targeted party) by those threats, its

solution solves little. See Boatwright, 401 P.3d at 664. First, the Kansas court does

not account for the harm that the attorney may suffer due to hearing the threat.

Second, as we indicated above, we do not agree that disclosure alone protects the

target. Archetypically, speakers issue their threats directly to the target, meaning the

target learns of the threat immediately. It would be strange to conclude, then, that,

in cases where the threat is conveyed to a third party, the criminal harm abates

merely because the target later learned of the threat. That simply puts the recipient

in the same position as if the threat had been issued to them directly. We are thus

unpersuaded by the minority approach of Massachusetts and Kansas.

29

Our dissenting colleagues reject our appeal to history because no jurisdiction

has yet adopted a free-standing threats exception. But by focusing their critique on

the novelty of such an exception, our dissenting colleagues miss the forest for the

trees. Although we may stand alone in our specific reasoning, the cases we cite

above demonstrate that many other jurisdictions withhold the protection of the

attorney-client privilege from criminal threats one way or another. It is the dissent’s

result—and not ours—that is out of step with the majority approach. 11

As for our reasoning, we elect a freestanding threat exception over, for

instance, holding that the crime/fraud exception encompasses threats, to provide

more protection for the attorney-client relationship than that provided by the

approaches of other jurisdictions. See post DEAHL concurrence at 58 (arguing that

the crime/fraud exception applies to criminal threats and therefore that all criminal

threats—not merely threats of serious bodily harm or death—fall outside of the

privilege). Put differently, the path we take is motivated by the same concerns about

chilling attorney-client relations that the dissent expresses. We do not see our efforts

at compromise as betraying a weakness in our position.

11

Indeed, what one considers unprecedented often depends on perspective.

Were we to adopt Mr. Moore’s and the dissent’s view, we would in effect be creating

an attorney-client exception to the criminal threats statute. We view that outcome

as unprecedented.

30

* * *

Although we conclude that Mr. Moore’s threats were not privileged, we need

not—and do not—decide whether all completed crimes, or even all completed

criminal threats, fall outside the attorney-client privilege. Because Mr. Moore

threatened to shoot the AAG, it suffices today to hold that the privilege excludes

completed criminal threats of death or serious bodily injury. 12 Cf. Perez Hernandez,

286 A.3d at 995 (“We focus instead, in the common law tradition, on deciding the

case before us.”); Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 812 (D.C.

2011) (en banc) (“The development of common law proceeds on a case-by-case

incremental basis, and it is on that solid factual ground that judicial opinions build

on a framework for analysis based on certain general precepts.”). 13

12

By leaving the treatment of lesser threats unsettled, we by no means indicate

support for the eventual elimination of the privilege with respect to those statements.

Should this court in the future confront the question of whether the privilege should

remain in force with respect to lesser threats, it is our view that this opinion does not

dictate the outcome of that case.

13

In the District, the attorney-client privilege remains a judicial creation. See

In re Ti.B., 762 A.2d 20, 27-28 (D.C. 2000). We therefore do not treat the elements

of the attorney-client privilege, or Wigmore’s formulation of the privilege, as if they

were “the words of [a] statute.” Gallimore v. Washington, 666 A.2d 1200, 1208

(D.C. 1995) (distinguishing between common-law analysis and statutory

interpretation). Instead, we look to how our court and other courts have interpreted

the privilege over the years and the reasons underlying the privilege to guide our

analysis. And we remain cognizant that the common law is “capable of growth and

31

We confine our present decision to threats of death or serious bodily injury

both out of respect for the attorney-client privilege and in recognition of the concern

that we and other jurisdictions have exhibited for crimes posing a grave risk to life

or limb. It may be that exposing attorney-client communications that constitute

other crimes or lesser threats poses greater risk to client candor and the integrity of

the adversarial process than does revealing the serious threats we confront today. Cf.

Counterman, 600 U.S. at 75, 80 (concluding that some true threats must be protected

in order to prevent too strong of a chilling effect on protected speech, but leaving

reckless, knowing, and intentional threats unprotected so as to appropriately balance

this chilling effect with the “profound harms, to both individuals and society, that

attend true threats of violence”). Moreover, we and other jurisdictions have

approved rules that distinguish communications regarding “a criminal act that the

lawyer reasonably believes is likely to result in death or substantial bodily harm

absent disclosure” as less worthy of an attorney’s confidentiality. 14 D.C. R. Pro.

development at the hands of judges.” Id. (quoting Nelson v. Nelson, 548 A.2d 109,

112 (D.C. 1988)). After all, that is what distinguishes the common law from statutes.

14

We do not address whether Rule 1.6(c)(1) by its own force sheds the

confidentiality required for the attorney-client privilege in the first place. Compare

Adams v. Franklin, 924 A.2d 993, 999-1000 (D.C. 2007) (“The attorney-client

privilege protects only communications from a client to an attorney that are, at the

time they are communicated, intended to be confidential.”), with id. at 999 n.6

(distinguishing the applicability of Rule 1.6 from the issue of whether a

communication was confidential for purposes of the attorney-client privilege), and

D.C. R. Pro. Conduct 1.6 cmt. 6 (“This rule is not intended to govern or affect

32

Conduct 1.6(c)(1); accord Md. R. Pro. Conduct 1.6(b)(1); Va. R. Pro.

Conduct 1.6(b)(7); Model R. Pro. Conduct 1.6(b)(1). At least one legislature has

codified such a rule for its attorney-client privilege. See Cal. Evidence Code § 956.5

(West 2005) (“There is no privilege under this article if the lawyer reasonably

believes that disclosure . . . is necessary to prevent a criminal act that the lawyer

reasonably believes is likely to result in the death of, or substantial bodily harm to,

an individual.”); Dang, 113 Cal. Rptr. 2d at 767 (applying Section 956.5 to a

criminal threat). We thus leave for another day whether to exempt other crimes and

lesser threats from the attorney-client privilege. 15

judicial application of the attorney-client privilege . . . .”). We observe only that the

rationale for differentiating communications risking death or serious bodily harm for

purposes of Rule 1.6’s confidentiality requirement may justify a similar distinction

for purposes of the attorney-client privilege.

15

The presence of an objectively credible, serious threat in an

otherwise-privileged attorney-client conversation does not necessarily render the

entire conversation admissible. Trial courts are well-positioned to separate the

privileged portions of communications from the unprivileged. Cf. In re Grand Jury

Subpoena, 419 F.3d 329, 343 (5th Cir. 2005) (“[T]he proper reach of the crime-fraud

exception when applicable does not extend to all communications made in the course

of the attorney-client relationship, but rather is limited to those communications and

documents in furtherance of the contemplated or ongoing criminal or fraudulent

conduct.”); In re Vargas, 723 F.2d 1461, 1467 (10th Cir. 1983) (“[T]he trial court

need only conduct an in camera inspection of the documents if there is a possibility

that some of them may fall outside the scope of the [crime/fraud] exception to the

privilege.”); In re Sealed Case, 676 F.2d 793, 812 n.74 (D.C. Cir. 1982) (“Once a

sufficient showing of crime or fraud has been made, the privilege vanishes as to all

material related to the ongoing violation.” (emphasis added)). Before the en banc

court and the division, Mr. Moore did not present a fallback argument that even if

33

The dissent criticizes us for not limiting our threats exception still further,

pointing out that we have not required as a prerequisite to the exception’s application

disclosure of the threat by counsel, proof beyond a reasonable doubt that the

communication constituted a threat, use only in criminal cases, or some likelihood

that the threat be carried out. Each of the above criticisms, however, could be levied

against the already extant crime/fraud exception. See In re Pub. Def. Serv., 831 A.2d

at 902 (imposing none of the above requirements when setting out the crime/fraud

exception’s contours). We see no reason to distinguish our newly articulated threats

exception from the crime/fraud exception by adding additional limitations or

procedures not present there.

D. Counterarguments

Mr. Moore and amicus the Public Defender Service (PDS) warn against

withholding the attorney-client privilege from Mr. Moore’s statements for two

reasons. In their view, such an outcome will (1) unduly chill attorney-client candor

evidence of his actual threatening statements were properly admitted, the trial court

erred by admitting more than the threats themselves. As a result, Mr. Moore also

did not present any argument about exactly what statements should have been

excluded on such a theory and did not address whether the admission of such

statements would have been harmful error. Because any such argument has been

abandoned on appeal, see Abdus-Price v. United States, 873 A.2d 326, 332 n.7 (D.C.

2005) (deeming an argument not raised on appeal “to be abandoned”), we do not

address those issues and express no view on them.

34

and (2) undermine public safety. And the dissent to a degree shares their concerns.

Although we acknowledge that our decision involves tradeoffs, we are unpersuaded

that the above concerns justify a different result.

1. Chilling Attorney-Client Candor

Mr. Moore, PDS, and the dissent argue that statements like Mr. Moore’s

threats are vital to the legal relationship because they express the client’s frustration

with the legal proceeding. Excluding such expressions from the attorney-client

privilege, in their view, would impinge on attorney-client candor and require clients

to censor themselves when speaking to their attorneys. Specifically, PDS warns that

even if threatening statements themselves are not worth protecting with the privilege,

exempting threats from the privilege could chill other nonthreatening speech. PDS

fears that clients may “swallow words that are in fact not true threats” in order to

give “the unlawful zone” a wide berth. Counterman, 600 U.S. at 78 (quoting Speiser

v. Randall, 357 U.S. 513, 526 (1958)).

We are unpersuaded by these arguments for three reasons. First, clients are

presumably used to communicating without pronouncing objectively credible

threats because the prohibition on issuing criminal threats applies to our day-to-day

35

conversations as well. This makes the exception to the privilege for serious criminal

threats unlikely to impede clients’ ability to communicate with their attorneys. 16

Second, to the extent that excluding criminal threats from the privilege does

impede some client candor, this is hardly a new development. As previously

discussed, most courts over the years have excluded criminal threats from the

privilege, and we have never before suggested that criminal threats would be

privileged (at least until the now-vacated panel decision in this case). Moreover, the

privilege already operates with other, similar exceptions, such as the crime/fraud

exception. Clients in our jurisdiction and others must moderate their conversations

with their attorney regardless of the outcome of this case.

And third, because attorneys can already disclose serious, objectively credible

threats made by their clients, the marginal chilling effect of allowing attorneys to

testify is minimal. See Chase, 340 F.3d at 996-97 (Kleinfeld, J., concurring in the

16

Our dissenting colleagues respond that because individuals consult with

lawyers to respond to stressful circumstances, they deserve “a bit more breathing

room” in their conversations with lawyers. Post dissent at 126. We agree, which is

why we hold only that criminal threats of death or serious bodily harm are excluded

from the privilege. Moreover, as we state elsewhere in our opinion, see infra at

39-40, we trust that attorneys can and will distinguish between emotional, not

objectively credible statements and objectively credible, criminal threats when

deciding whether to disclose a client’s statement. So, we believe that the exception

we announce today leaves enough room for clients to express their emotions to their

lawyers.

36

result). The dissent points out that retaining the attorney-client privilege, in addition

to facilitating the administration of justice, safeguards the client’s privacy and

protects the interpersonal relationship between the attorney and their client. But the

dissent concedes that confidentiality rules allow attorneys to disclose serious threats

of bodily injury or death made by their clients. We do not see what privacy interest

a client can claim in information (a threat) all agree an attorney can disclose to third

parties. And once an attorney breaks confidentiality by disclosing the threat, we

doubt much if any of the relationship between the attorney and the client will survive.

Indeed, this case proves that very point. Once Mr. Harvey disclosed Mr. Moore’s

threats to the court—and before any prosecution related to the threats had begun—

Mr. Harvey withdrew from representing Mr. Moore because his relationship with

Mr. Moore had deteriorated to the point where further representation was

impossible.

Privileging criminal threats, moreover—as Mr. Moore and PDS would have

us do—also risks sacrificing the attorney-client relationship. Consider, as

Judge Thompson did in her division dissent, if Mr. Moore had threatened

Mr. Harvey’s family rather than the AAG as a means of venting his frustration: “You

are doing a terrible job for me. I know where you and your family live, and I am

going to torture and kill you all.” Moore, 285 A.3d at 259 (Thompson, J.,

dissenting). Such a statement involves communications at least as revealing of the

37

client’s frustrations as Mr. Moore’s threats in this case. As a result, they would have

as strong a claim to privilege under the rule Mr. Moore endorses. Under

Mr. Moore’s interpretation of the privilege (and, perhaps, the dissent’s), the attorney

would be left without the ordinary protections of arrest and criminal prosecution

against the threat of serious violence. Such a burden would not strengthen the

attorney-client relationship or better facilitate the adversarial process—quite the

opposite.

2. Public Safety

Setting aside clients’ interest in privileged communications, Mr. Moore and

PDS caution that our holding undermines public safety. They argue that unless

criminal threats are kept privileged, (1) clients will not issue the threats before their

attorneys, and consequently the attorneys will not be able to dissuade them from

harming others; and (2) when clients do convey threats to their attorneys, the

attorneys will not disclose them to law enforcement or the target. And, although the

dissent does not embrace the above argument, it suggests that (3) our exception “is

not tailored to any real-time or even future public safety objective.” Post dissent at

122. We doubt all three propositions.

With respect to the first, we think it unlikely that many defendants will change

their behavior because of our holding. Mr. Moore and PDS appear to imagine a

38

defendant who (1) wishes to threaten, in the presence of their attorney, someone with

death or serious bodily harm and (2) takes into consideration whether or not such a

communication would be privileged. Yet a client so well-versed in our

attorney-client privilege doctrine presumably also knows that, regardless of which

rule we adopt today, their attorney may disclose the threat to the police and the target

under Rule 1.6. If the client knows their attorney might disclose their threat to the

police, we doubt they would utter the threat regardless of whether the privilege

applies—unless, of course, they are hoping their attorney will convey the threat to

the target for them.

At any rate, whatever benefit the attorney-client privilege would provide to

public safety by encouraging clients to divulge their threats to counsel, the

privilege’s protection would be quite underinclusive because it would not apply to

most client threats. Most threats—even those uttered in the presence of an

attorney—are presumably not in pursuit of legal advice and thus lack privilege either

way. Those unprivileged threats are just as dangerous as threats seeking legal

advice, which, under Mr. Moore’s rule, would be privileged. If the privilege is

supposed to protect us from client threats, it does a poor job because it does not even

apply to most client threats.

39

Nor are we convinced by the argument that we must apply the attorney-client

privilege to criminal threats to allow attorneys to dissuade their clients from acting

out those threats. When a client consults a lawyer as to whether they might ask a

witness not to testify, no crime has yet been committed. But when a client issues a

serious, objectively credible, criminal threat to a witness in the presence of their

attorney, the crime is complete; the attorney cannot through sober, course-correcting

advice put the genie back in the bottle. Whatever part the lawyer might play in

persuading their client not to commit the additional crime of following through on

their threat, the crime of a criminal threat has already been committed, 17 and the

lawyer at least has already suffered the harms associated with that crime. To justify

those harms based on the mere possibility that the lawyer might prevent, through the

power of reasoning, a future crime both underestimates the harm that threats cause

and overestimates attorneys’ powers of persuasion.

As for whether attorneys will change their behavior in response to our holding,

we doubt this too. Attorneys will not necessarily disclose all threatening statements

made by their client in their presence. And for good reason. Facially threatening

17

Perhaps an attorney’s immediately subsequent conversation with their client

could reveal that the threat was not objectively credible. As we have discussed

above, whether a threat is objectively credible and thus criminal turns in part on the

surrounding context, including the other statements made by the issuer. Such a

situation is not before us, and we need not address it.

40

statements a client makes in the presence of an attorney may well be idle, not

objectively credible, and thus not crimes. As the division correctly observed, “when

a threat is delivered only to a third party, that fact can bear on” “one’s ‘mens rea to

utter the words as a threat’” or whether the threat is objectively credible. Moore,

285 A.3d at 236 n.9 (quoting Carrell, 165 A.3d at 317). We emphasize that the

exception we announce today applies only when a judge preliminarily determines

that a criminal threat crime (one involving serious bodily injury or death) has

occurred. See In re Pub. Def. Serv., 831 A.2d at 902. Most statements, when viewed

in context, will not qualify as such.

But if an attorney believes that the above standard is met, we believe that that

attorney—an officer of the court—would report the threat under Rule of Professional

Conduct 1.6(c) irrespective of whether the privilege applies. To be sure, their

disclosure now carries a greater risk of subjecting their client to investigation and

prosecution. But even if the attorney could not testify, the client would still likely

face investigation and possible prosecution after the attorney reported the threat. So,

the difference in attorney incentives is minimal. See Newman, 863 A.2d at 344

(Wilner, J., dissenting) (“I cannot conceive, and the Court offers no explanation, of

why a lawyer who believes that a disclosure is necessary to prevent death or serious

bodily harm to another will feel free to make a disclosure under Rule 1.6, knowing

that, as a result, his client will almost certainly be the target of a criminal

41

investigation, but will nonetheless be reluctant to make the disclosure because he/she

may be called to testify in court.”).

Finally, the dissent’s skepticism as to whether a threats exception will

improve public safety is grounded in too rosy a view of the power of disclosure alone

to prevent disruption of the target’s life in response to the threat, protect the target

in the event that the threatener attempts to carry out the threat, and disincentivize

future threats. Law enforcement cannot serve as the targets’ personal bodyguards,

and most individuals cannot afford their own private security, let alone security for

their family members. The fact that law enforcement is “either investigating or

pursuing charges” with respect to the threat, post dissent at 107, is likely to be of

cold comfort to a threat’s target; we struggle to see how the government could obtain

probable cause to arrest—let alone persuade a jury that a threat occurred—if the

threat itself cannot be admitted into evidence, regardless of how dogged an

investigation is conducted. 18 And because in the absence of prosecution the issuer

18

To draw this issue into starker relief, consider the following scenario. An

individual previously convicted of assaulting a victim is released from prison and

charged with once again assaulting the same victim. He is released pending trial,

and he tells his attorney that he plans to kill the complainant unless she agrees not to

testify against him. Even if defense counsel disclosed the threat to law enforcement,

under Mr. Moore’s position the disclosed information remains privileged and the

court would be powerless to use it as a basis to revoke the individual’s release or

impose a stay-away order. Notifying law enforcement, then, is hardly an enduring

solution when the only evidence of the threat is excluded in legal proceedings.

42

of the threat would face no legal consequences, that issuer would have no incentive

to refrain from issuing future threats in the same manner.

Even in the absence of an attempt by the threat’s issuer to follow through on

their threat, threats, once disclosed, harm their targets. By disincentivizing threats,

the exception we announce prevents those harms and thereby protects public safety.

III. Conclusion

For the foregoing reasons, we affirm the Superior Court’s conclusion that the

attorney-client privilege does not apply to Mr. Harvey’s testimony. We return the

appeal to the division to address Mr. Moore’s remaining arguments.

So ordered.

MCLEESE, Associate Judge, concurring: The opinion for the en banc court

holds that Mr. Moore’s threats to shoot the prosecutor are not protected by the

attorney-client privilege. I agree with that holding, and I join the opinion for the en

banc court in full. I write separately to briefly explain an additional basis for that

holding.

The attorney-client privilege protects only communications “made in

confidence.” Jones v. United States, 828 A.2d 169, 175 (D.C. 2003) (internal

quotation marks omitted). In determining whether a communication between a

43

client and an attorney was made in confidence, we consider what the client

reasonably believed. Id. at 176. In my view, the record in this case amply supports

a conclusion that Mr. Moore could not reasonably have believed that his threats to

shoot the prosecutor would be kept confidential.

Where applicable, the attorney-client privilege prevents “compelled

disclosure of privileged communications.” Adams v. Franklin, 924 A.2d 993, 998

(D.C. 2007). Even where disclosure is not being compelled, however, attorneys

have a general fiduciary duty of confidentiality to their clients. See generally, e.g.,

Herbin v. Hoeffel, 806 A.2d 186, 197 (D.C. 2002) (“[D]isclosure of client

confidences is contrary to the fundamental principle that the attorney owes a

fiduciary duty to [the attorney’s] client.”) (internal quotation marks omitted). Thus,

attorneys can be held liable for wrongfully disclosing a client’s confidential

information. See, e.g., id. at 197-98 (remanding for further consideration of claim

that attorney committed tort of intentional infliction of emotional distress by

impermissibly disclosing client confidences); see generally Restatement (Third) of

the Law Governing Lawyers §§ 16(3) (Am. L. Inst. 2000) (lawyer has duty to

“comply with obligations concerning the client’s confidences”), 49 (lawyer is civilly

liable to client if lawyer breaches fiduciary duty concerning client confidences).

44

A lawyer’s fiduciary duty of confidentiality is not absolute. See generally

Restatement (Third) of the Law Governing Lawyers §§ 61-67 (listing exceptions to

general fiduciary duty of confidentiality). One exception to the duty of

confidentiality recognized by the Restatement seems highly relevant to this case: “A

lawyer may use or disclose confidential client information when the lawyer

reasonably believes that its use or disclosure is necessary to prevent reasonably

certain death or serious bodily harm to a person.” Id. § 66(1); see also id. cmt. c

(“[T]he character of a threatened act as a crime . . . suggests a state of mind on the

part of the perpetrator that is more threatening to the intended victim than an act that

is merely negligent or not wrongful, and thus may more readily warrant the lawyer’s

conclusion that the risk of harm is great.”); cmt. d (“[A] lawyer is permitted to act

under [this] Section whenever the lawyer reasonably believes that intervention is

necessary in response to a present threat, even if the death or serious bodily harm

appears likely to occur some time in the future.”).

For purposes of this appeal, the following facts appear to be undisputed.

During a break before the beginning of his criminal trial, Mr. Moore became very

agitated and angrily made statements to his defense counsel threatening to shoot the

prosecutor. When defense counsel expressed concern that Mr. Moore was serious,

Mr. Moore said “goddamn right” and repeated his threat to shoot the prosecutor,

adding that he owned guns. Later that day, Mr. Moore told defense counsel that he

45

did not mean to act on his threats. Defense counsel told Mr. Moore that defense

counsel would believe Mr. Moore if Mr. Moore repeated his threats. Defense

counsel also told Mr. Moore that defense counsel would inform the court if Mr.

Moore made similar threats in the future.

The trial was continued for several months. During another break after trial

was resumed, Mr. Moore was “out of control,” extremely angry, and agitated. Mr.

Moore said twice that if he lost his job, he was “going to bust a cap in this bitch.”

Mr. Moore also took his hand and made a gesture as though repeatedly shooting a

gun. Defense counsel understood Mr. Moore to be threatening to shoot the

prosecutor. Defense counsel was extremely concerned and believed that Mr. Moore

meant what Mr. Moore was saying. Defense counsel then disclosed Mr. Moore’s

threats to the court.

This court has not yet addressed whether there is an exception to the general

fiduciary duty of confidentiality when a client makes serious criminal threats such

as those in the present case. As previously noted, § 66(1) of the Restatement (Third)

of the Law Governing Lawyers recognizes such an exception. I do not express a

view about whether this jurisdiction should adopt the precise approach reflected in

the Restatement. I would readily conclude, however, that on the foregoing facts

defense counsel did not breach a fiduciary duty of confidentiality by disclosing Mr.

46

Moore’s repeated threats to shoot the prosecutor. To the contrary, in my view

defense counsel acted entirely properly. See generally, e.g., Restatement (Third) of

the Law Governing Lawyers § 66 cmt. b (“The exception recognized by this Section

is based on the overriding value of life and physical integrity. . . . [I]t seems highly

unlikely that a court would impose . . . liability on a lawyer” acting reasonably under

Section 66(1) “to remove the threat to life or body”).

Given that defense counsel had no fiduciary duty to keep Mr. Moore’s

repeated threats confidential, Mr. Moore could not reasonably have expected defense

counsel to keep the threats confidential. As the trial court noted, that is particularly

obvious with respect to the second set of threats, which Mr. Moore uttered even after

defense counsel had informed Mr. Moore that defense counsel would disclose Mr.

Moore’s threats to the court if Mr. Moore repeated them.

For the foregoing additional reasons, I conclude that Mr. Moore’s threats fall

outside the scope of the attorney-client privilege. I briefly note one further topic. In

addition to their fiduciary duty of confidentiality, attorneys also have an ethical duty

of confidentiality. D.C. R. Prof. Conduct 1.6. That ethical duty is also not absolute,

however, and D.C. R. Prof. Conduct 1.6(c)(1) permits disclosure of client

confidences and secrets “to the extent reasonably necessary . . . to prevent a criminal

act that the lawyer reasonably believes is likely to result in death or substantial bodily

47

harm absent disclosure.” We have indicated that this rule of professional

responsibility “is not intended to govern or affect judicial application of the

attorney-client privilege.” D.C. R. Prof. Conduct 1.6 cmt. [6]. It therefore is not

strictly necessary in this case to decide whether defense counsel’s disclosure was

permissible under R. 1.6(c)(1). Essentially for the reasons already stated, however,

defense counsel’s disclosure in this case was in my view also clearly permissible

under the Rules of Professional Conduct.

DEAHL, Associate Judge, concurring: I agree that the attorney-client privilege

does not protect the criminal threats that Brian Moore made to his attorney. I write

separately first to explain why a straightforward application of the crime/fraud

exception compels that result, and second to add some important caveats to the

court’s alternative approach to the question at hand.

A. The Crime/Fraud Exception Resolves This Case

I’ll start with why the crime/fraud exception to the attorney-client privilege

makes this an easy case. It is black letter law that communications between a client

and their attorney are not privileged “if the attorney-client communication itself

materially advances a crime or fraud.” In re Pub. Def. Serv. (In re PDS), 831 A.2d

890, 902 (D.C. 2003). A criminal threat uttered to one’s attorney does that. It not

only advances, but completes, a criminal offense. Criminal threats thus make for an

48

easy application of the crime/fraud exception—Moore’s threats were not privileged

because they advanced and consummated a criminal offense. I would end my

analysis there.

Moore and my dissenting colleagues offer two principal retorts to that

straightforward analysis. Neither is persuasive.

First, they invoke a principle that does not help them: that statements intended

to advance a crime do not fall within the crime/fraud exception when “the attorney

talks the client out of committing the crime.” In re PDS, 831 A.2d at 895. I agree

with the principle, but Moore’s and the dissent’s invocation of it exhibits a

fundamental misunderstanding of what a criminal threat is. A criminal threat is not

an inchoate offense, or an incipient assault in the making that one can be talked out

of. It is unto itself a completed crime upon the threat’s utterance to another party.

United States v. Baish, 460 A.2d 38, 41 n.2 (D.C. 1983) (explaining that threats are

no longer “inchoate” once “someone, other than the speaker, hears the threat”). So

when a client communicates a true criminal threat to their attorney, they have not

stated a mere intention to commit a crime, and they have not merely commenced a

potential crime that their attorney can thwart. They have instead committed a

complete offense. The attorney might try to talk their client out of committing

49

additional offenses by dissuading them from following through on the threat or

repeating it. But the ship of talking them out of the criminal threat itself has sailed.

Of course many seemingly threatening statements are not true criminal threats

because a reasonable listener would not expect the speaker to follow through with

them. And when in doubt, an attorney could always seek clarification of a client’s

seemingly threatening statement and conclude that it was not a true threat where the

client offers credible assurances that they would not follow through on it. So in that

respect, we might say somewhat imprecisely that somebody can be talked out of an

already-uttered threat, by which we mean they can assure the listener that it was not

a true threat at its making. But that qualification does Moore no good here either—

he declined repeated opportunities to assure his attorney, John Harvey, that his were

not true threats, and instead repeated his death threats even after Harvey explained

that he took them seriously and would disclose them if repeated. He simply was not

talked out of his criminal offense no matter how you look at it, so Moore can take

no shelter in espousing the virtues of giving attorneys the chance to talk their clients

out of crimes. Harvey had that chance, and Moore was not talked out of anything.

Second, Moore and my dissenting colleagues argue that the crime/fraud

exception applies only where the attorney affirmatively assists their client in a

criminal endeavor, and an attorney acting as a mere passive recipient of a threat does

50

not check that box. But this condition—let’s call it an assistance requirement—is

largely of the dissent’s own invention rather than grounded in any authority. While

the crime/fraud exception undoubtedly and commonly applies when the attorney

affirmatively assists the client in a criminal endeavor, that is not a requirement for

its application. All that is required for the crime/fraud exception to apply is for the

communication, whether it comes from the client’s lips or the attorney’s, to have

actually advanced a crime. 1 McCormick on Evidence § 95 (8th ed. 2022)

(crime/fraud exception applies where “the communication was itself in furtherance

of [a] crime or fraud”); Edward J. Imwinkelried, The New Wigmore: Evidentiary

Privileges § 6.13.2(d)(1) (2d ed. 2009) (“The exception applies . . . when the

communication itself was made in furtherance of the crime or fraud.”); see also In

re Grand Jury Proceedings, 183 F.3d 71, 77 (1st Cir. 1999) (“[W]hen

communications are intended to directly advance a particular criminal or fraudulent

endeavor . . . their privileged status [will] be forfeited by operation of th[e

crime/fraud] exception.”); West Virginia ex rel. Allstate Ins. Co. v. Madden, 601

S.E.2d 25, 37 (W. Va. 2004) (“The dispositive question is whether the attorney-

client communications are part of the client’s effort to commit a crime or perpetrate

a fraud.”).

The dissent brushes by that black letter law because it is from other

jurisdictions, suggesting that this court forged its own distinct path in In re PDS.

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Post at 91-95. I see no reason why we should narrow our focus to our own

precedents, which are no more binding on this court while sitting en banc than those

from other jurisdictions—they are all exactly as persuasive as their reasoning. But

even if I take the dissent up on its invitation to narrow the playing field down to its

single preferred case, and ignore the overwhelming persuasive authority from

elsewhere, the dissent simply misreads In re PDS. What In re PDS actually says is

that the crime/fraud exception applies “if the attorney-client communication itself

materially advances a crime or fraud,” In re PDS, 831 A.2d at 902 (emphasis added).

It repeats that same point at least two more times, reiterating that the crime/fraud

exception applies if a crime or fraud is “materially advanced by the communication

itself,” id. at 907, and that “the attorney-client privilege is appropriately forfeited ab

initio [when] the communication itself advances a crime or fraud.” Id. at 909. I thus

do not see how In re PDS could have been any clearer that where the client’s

communication itself advances a crime, as Moore’s threats did here, there is no

additional requirement that the attorney further assist in the crime’s commission.

The dissent counters that I have read each of those repeated statements “out

of context,” because In re PDS provides an example of when client communications

advance a crime, to wit, “as where the attorney agrees to help the client carry out his

illegal scheme instead of rejecting it outright.” Id.; post at 92-94 (italicizing this

language). But the phrase “as where” clearly introduces an example rather than

52

announcing a limitation on the previously articulated principle. The dissent

repeatedly conflates the two things: it excerpts sentences from In re PDS that say the

crime/fraud exception applies where the attorney assists his client in committing a

crime, which is undoubtedly true, and reads them as if they are limitations on the

exception, when they are not and cannot fairly be read that way. There are obviously

times where client utterances themselves do nothing to advance a crime, as

illustrated by the facts of In re PDS, where the entire scheme depends on the lawyer’s

participation so that the lawyer’s refusal to participate “stops the client’s scheme

dead in its tracks.” Id. at 895. In those instances, the attorney’s refusal to assist their

client will preclude application of the crime/fraud exception because the client’s

solicitation alone did not materially advance the crime—the attorney killed the crime

in its cradle. But there are other times where a client’s utterances to a lawyer

themselves advance or complete a crime, such as when they issue a criminal threat,

and in those cases (like the present one) the crime/fraud exception applies.

To be sure, it is a worse perversion of the privilege where the attorney actually

helps their client commit a crime than when they are merely used as an unwitting

sounding board for advancing it. But it is an abuse of the privilege all the same and

the crime/fraud exception applies in either case, with or without the lawyer’s willing

53

assistance. 1 To hold otherwise would couple a capacious understanding of the

attorney-client privilege with an incongruously and illogically narrow understanding

of its limiting exception. Let me elaborate.

The attorney-client privilege in its most skeletal form applies only where a

client is seeking legal advice. A threat, of course, is not a request for legal advice;

Moore even acknowledges in his brief that “[t]hreats . . . are not requests for advice.”

So various courts have concluded—with some superficial appeal—that the privilege

does not apply to threats without even addressing the crime/fraud exception. See,

e.g., United States v. Ivers, 967 F.3d 709, 716-17 (8th Cir. 2020) (defendant’s threats

to kill judge “were not for the purpose of obtaining legal advice” and so “are not

1

One might interject that an attorney would help their client commit the

offense of a criminal attempt by even hearing out and rebuffing a prospective

criminal scheme, which would put my view at odds with In re PDS. But that’s

wrong: raising a potential criminal scheme with one’s lawyer does not amount to a

criminal attempt. Mere contemplation or open discussion of a potential offense is

not a “substantial step” that comes “dangerously close” to completing it. See Frye

v. United States, 926 A.2d 1085, 1096 (D.C. 2005) (“To constitute an attempt, the

act ‘must come dangerously close to completing the crime.’” (quoting Criminal Jury

Instructions for the District of Columbia, No 4.04 (4th ed. 2002))); see also Sandoval

v. Sessions, 866 F.3d 986, 989 (9th Cir. 2017) (“[M]ere solicitation . . . does not

constitute ‘attempt[].” (citing United States v. Rivera-Sanchez, 247 F.3d 905, 908-

09 (9th Cir. 2001) (en banc))); United States v. Veliz, 800 F.3d 63, 72 n.9 (2d Cir.

2015) (“[M]ere solicitation is not an attempt.” (citing Wayne R. LaFave, Substantive

Criminal Law § 11.1(f) (4th ed. 2003))). If, however, the client goes beyond merely

communicating his scheme, and later takes a substantial step toward completing it

with or without the lawyer’s assistance so that it does rise to the level of an attempt,

then the crime/fraud exception indeed applies. 831 A.2d at 907 (rejecting view “that

the crime-fraud exception applies only when a crime or fraud has been completed”).

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protected by the attorney-client privilege”); United States v. Alexander, 287 F.3d

811, 816-17 (9th Cir. 2002) (defendant’s statements threatening violence “were

clearly not communications in order to obtain legal advice” and were thus not

privileged). Those courts have held that the privilege applies only when the “specific

communication[]” at issue was strictly “necessary” to procuring discrete legal

advice. Ivers, 967 F.3d at 717 (“Ivers’s statements . . . were in no way necessary to

further his civil lawsuit.”); Alexander, 287 F.3d at 816 (“[T]he privilege is limited

to only those disclosures . . . necessary to obtain informed legal advice.”).

I agree with Moore and my dissenting colleagues that those cases reflect too

impoverished a view of the attorney-client privilege because many attorney-client

exchanges do not directly seek or offer discrete legal advice. That is especially true

in criminal defense, where a critical part of the attorney’s job is gaining and

maintaining a client’s trust. An effective attorney needs to have a holistic

understanding of their client, complete with an understanding of their circumstances,

worries, goals, and frustrations. Their communications thus must veer well outside

the strict bounds of discrete legal advice, so that the privilege—if it is to be

effective—must cover things like rapport-building and personal communications

that foster and undergird the relationship. In the words of one preeminent evidence

scholar, Professor Edward J. Imwinkelried: “For an attorney and a client to form an

effective working relationship—one in which the client discloses all the facts in his

55

or her possession and develops enough trust in the attorney to take the attorney’s

advice seriously—the attorney and client need ‘space’ in their interactions.” Parsing

Privilege: Does the Attorney-Client Privilege Attach to an Angry Client’s Criminal

Threat Voiced During an Otherwise Privileged Client Consulation, 72 Case W. Res.

L. Rev. 871, 897 (2022). It would roughly obliterate the privilege if it protected only

those individual statements that specifically seek, or furnish, legal advice. This court

should firmly reject the unpersuasive reasoning in cases like Ivers and Alexander.

But if you embrace a robust conception of the privilege, as I do, you should

not couple it with a flaccid view of its limiting principle, the crime/fraud exception.

That would pair an expansive view of the privilege as applying to client

communications that are not truly seeking legal advice, like Moore’s threats, while

incongruously straightjacketing the exception to those cases where advice is actually

supplied. See supra n.1. That asymmetry is at the core of the dissent’s analysis. In

my view, if one recognizes that the privilege extends to communications that do not

directly seek advice, then one cannot coherently limit the crime/fraud exception to

those instances where the attorney directly furnishes advice in response. The

question instead should simply be whether the client’s communications sought to

and ultimately did advance a crime, as Moore’s threats undoubtedly did here.

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The policy rationales underlying the crime/fraud exception apply with full

force when the communication at issue is itself a crime. Permitting clients to commit

crimes in their attorney’s presence with impunity is precisely the type of “abuse[] of

the attorney-client relationship to further the commission of a crime” that the

crime/fraud exception was designed to prevent. In re PDS, 831 A.2d at 908. As

Prof. Imwinkelried again persuasively explains after carefully walking through those

policy justifications: “If anything, the case for recognizing a categorical exception

for client statements amounting to illegal threats is stronger than the case for the

well-settled crime/fraud exception to the attorney-client privilege,” because in the

case of threats the crime is actually completed rather than merely advanced. Parsing

Privilege, supra, 72 Case W. Res. L. Rev. at 904. I agree with him about that, for

reasons the court’s opinion ably articulates, and I would hold that all criminal threats

fit within the crime/fraud exception to the attorney-client privilege.

It should nonetheless go without saying that defense attorneys are not obliged

to divulge every imprudent client remark that might conceivably be taken as a threat,

and no competent defense counsel needs to be told that. Emotions run high in

criminal trials and defendants will sometimes vent in ways that a casual observer

might interpret as a bona fide threat, but any halfway decent defense attorney will

recognize as empty bluster. See State v. Boatwright, 401 P.3d 657, 664 (Kan. Ct.

App. 2017) (An apparently threatening comment, while “jarring in isolation, . . . is

57

not an uncommon occurrence in the course of an attorney-client relationship.”). A

defense attorney cannot be a pearl-clutching milquetoast, and it is the rare

superficially threatening comment that is a true criminal threat, i.e., that gives rise

to a reasonable belief “that the threatened harm would take place.” In re S.W., 45

A.3d 151, 155 (D.C. 2012). Here, Harvey testified that he had heard clients make

facially threatening statements about prosecutors on “maybe three or four” prior

occasions in his decades-long career and never previously felt obliged to disclose

them. But in this case, Harvey made a judgment that Moore’s death threats—

repeated after Harvey’s warnings that he took them seriously and would disclose

them if reiterated—crossed the line into true threat territory. A jury agreed with that

assessment beyond a reasonable doubt, a division of this court found the evidence

sufficient to support that conviction, and we have no occasion to revisit that

conclusion as the en banc court.

I’m sure many defense attorneys would have made a different judgment call

and chalked Moore’s comments up to venting or bluster, but the question before us

is not whether Harvey acted as a model defense attorney. It is whether the attorney-

client privilege protects true criminal threats uttered in the course of a representation,

so that we effectively must assume Moore was reasonably likely to follow through

on his death threats. Because such true threats are completed crimes, the crime/fraud

exception dictates that the privilege’s protections do not extend to them.

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B. A Few Caveats to the Court’s Alternative Rationale

The court reaches a superficially more modest conclusion that criminal threats

“to cause death or substantial bodily harm” are not privileged. Ante at 3, 10, 11, 18.

I agree, though I would lose the quoted qualification, so I join the court’s opinion in

full; it does not foreclose my broader view that all criminal threats are unprivileged. 2

The court reaches its conclusion after declining to engage with the standard two-step

inquiry for analyzing attorney-client privilege issues. That is, it does not answer

whether Moore’s communications generally fit within the attorney-client privilege

in the first instance, or whether they fit within the crime/fraud exception in the

second. It concludes only that threats of death or substantial bodily harm are an

abuse of the privilege severe enough to be excepted from the privilege’s coverage

due to “overriding policy concerns.” Ante at 14.

2

To illustrate where I would go further than the majority, consider a criminal

defendant who tells his counsel that he will punch her in the face if he is convicted

at trial. If that is a true threat of a simple assault that the attorney reasonably believes,

my view is that it is not privileged. The majority remains agnostic on that point, at

least if we understand a punch to the face as generally falling short of inflicting

substantial bodily harm. The dissent, for its part, is conspicuously silent about this

scenario. Post at 104 n.30. That silence surely stems from the fact that its otherwise

hardline view becomes impossible to justify or even stomach if the privilege protects

such direct threats to a lawyer. I believe such threats fall within the crime/fraud

exception regardless of the threatened target.

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I again agree because those overriding policy concerns are already baked into

the privilege’s preexisting contours—criminal threats fit within the established

crime/fraud exception. While I share the dissent’s distaste for truly new exceptions

to a centuries-old doctrine, there is nothing new about the exception the court

recognizes today, which is already encompassed by the crime/fraud exception. My

only real issue with the majority’s analysis is that a more direct path is available to

us, more firmly grounded in principles and precedent, as charted above. The court’s

alternative path compels me to offer three caveats to its analysis.

First is that its mode of analysis would not be viable if we were sitting as a

division in this case. We have previously treated the crime/fraud exception for

communications “made to further ongoing or future crimes” as the only exception

to the attorney-client privilege. See, e.g., In re PDS, 831 A.2d at 906-08. The

majority remains agnostic as to whether Moore’s threats fit within that long-

recognized exception by crafting a new standalone exception for sufficiently serious

threats. While we are free to do that as the en banc court—we could recalibrate the

privilege entirely while sitting en banc, cabined only by the Supreme Court’s

precedents and the Constitution itself—a division of this court would not be at liberty

to do so. I think it is important to caveat that future divisions of this court are not

free to emulate the majority’s analysis and craft new exceptions to the attorney-client

privilege whenever they believe broader principles counsel in favor of that result.

60

They are instead bound to answer whether the statements at issue fit within the

privilege and, if so, whether they nonetheless fit within a recognized exception to

the privilege: (1) the crime/fraud exception, or (2) the newly-crafted serious threats

exception (the second category adds nothing to the first, in my view).

Second is that a majority of the en banc court, between the dissenters and I,

has directly rejected the analysis in cases like Ivers and Alexander as unpersuasive.

So notwithstanding the agnosticism expressed by the majority opinion on the topic,

the controlling view resulting from today’s opinions is a rejection of the Ivers and

Alexander approach that each discrete communication must directly seek legal

advice for it to be covered by the privilege. That is a woefully anemic view of the

attorney-client privilege that a majority of this court’s judges rightly rejects, if only

through a combination of separate writings.

Third, and finally, I would reaffirm the entirety of this court’s analysis in In

re PDS, which persuasively explains why the crime/fraud “exception does not apply

where the attorney talks the client out of committing the crime or fraud he

contemplates or stops the client’s scheme dead in its tracks.” Id. at 895. I again take

my dissenting colleagues to agree with me about that, so that a majority of this court

has reaffirmed the continuing vitality of that precedent, in case anything in the

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court’s opinion might be read to cast doubt on that. 3 Where I part ways with my

dissenting colleagues is that it matters to me that unlike the client in In re PDS,

Moore was not talked out of, but consummated, his criminal offense when he issued

his threats. For that reason the crime/fraud exception takes Moore’s threats outside

of the attorney-client privilege’s protections even without the new exception for

serious threats that the court crafts.

With that said, I concur.

EASTERLY, Associate Judge, with whom BECKWITH and HOWARD, Associate

Judges, join, dissenting: Evidentiary privileges, like the attorney-client privilege,

exist to keep evidence out of court. By design, they counter the truth-finding

function of our legal system. The attorney-client privilege has for centuries

prohibited the use of attorney-client communications as evidence, despite their

presumably valuable content, both because it has long been understood that regularly

allowing an attorney to become a witness against their client would chill this

societally valuable relationship and because, normatively, we do not want lawyers

3

I also share the dissent’s procedural concerns that Harvey probably should

not have been allowed to testify about these client communications without giving

Moore notice and an opportunity to litigate the privilege question. But that issue has

not been raised or briefed before us, so I express no firm opinion on the matter and

remain open to revisiting this tentative view in an appropriate case.

62

in our adversarial legal system to serve both as advocates for and witnesses against

their clients.

The privilege applies when an individual is communicating confidentially

with their attorney to seek legal counsel. To date, the only exception this court has

recognized to the privilege has been for communications that misuse the attorney-

client relationship by furthering the commission of a crime. In this case, Mr. Moore

was confidentially seeking guidance from his lawyer when, in the midst of his

contempt trial, he spoke to his lawyer alone in the courthouse hallway about his

extreme frustration with the efforts by the prosecutor to put him on a GPS monitor

and his fear of losing his job as a result. Accepting the record as it comes to this

court, but see Part III.A (questioning whether counsel should have been permitted to

testify in the grand jury before Mr. Moore was given the opportunity to invoke the

privilege), Mr. Moore made conditional statements in the course of his venting that

he would shoot the prosecutor if she didn’t stop “fucking with him” or if he lost his

job. Simply by making himself available to hear what Mr. Moore had to say (the

content of which counsel could not have anticipated), counsel did not help

Mr. Moore commit a crime. Under the longstanding common law test employed by

this court, the privilege protected the statements Mr. Moore made to his attorney,

and the attorney should not have been permitted to become a witness against his

client at Mr. Moore’s subsequent trial for criminal threats.

63

The majority does not dispute that the attorney-client privilege in its existing

form protected Mr. Moore’s statements to his lawyer and does not seek to defend

the trial court’s erroneous ruling to the contrary. Ante majority at 11, 18.

(Judge Deahl’s concurrence expressly rejects the trial court’s view of the privilege.

Ante Deahl, J., concurring at 53-55, 60.) Instead, the majority creates a never-before-

seen exception to the centuries-old attorney-client privilege that carves out

confidential statements, made by a client to their lawyer while seeking legal advice,

that could be perceived as threats of death or serious bodily injury.

This novel exception is ill-founded. It is based partly on a misperception that

lawyers who have challenging conversations with their clients are “abused” when

those conversations cause any of a range of emotions and partly on the asserted

concern that attorneys will be used as conduits for statements that could be perceived

as threats. But having emotional and sometimes disconcerting conversations with

clients is a core part of the job of a lawyer in direct client service, and to hold

otherwise not only projects weakness on those lawyers, but also undermines their

ability to zealously advocate for their clients and weakens the foundation of the

privilege itself. Likewise, the majority fails to demonstrate how the mere possibility

that the subject of a threat may later learn of the communications, against the client’s

wishes, indicates that the client abused the attorney-client relationship by making

those statements. Indeed, the majority does not require that the communication be

64

disclosed by counsel, much less transmitted to the subject, before its new exception

applies.

The majority’s exception is without analogue. No other jurisdiction in the

country has a categorical threats exception to the attorney-client privilege.

Lastly, the majority’s threats exception portends a grave intrusion on the

attorney-client relationship, if not its eventual demise. Sitting en banc, we must look

beyond the facts of this case and focus on the rule that is being announced and its

effect in future cases. The majority’s threats exception is ominously expansive. This

exception requires nothing more of counsel than that they do their normal job of

listening to their client; it does not require counsel to disclose their client’s

statements, much less transmit the statements to their target. The majority’s

characterization notwithstanding, the exception is not limited to the revelation of

criminal threats; rather, it casts a far wider net, given the majority’s explication that

a judge need only “preliminarily” determine that a criminal threat was uttered—

which requires some far lesser showing than guilt beyond a reasonable doubt. Ante

majority at 40. The exception has no real-time or even future public-safety objective.

It does not require that anyone—the attorney who heard the statement, the party who

invokes the exception, or the judge who rules on its application—actually believe

65

the client intended to carry out the threat, and it allows for the admission of otherwise

privileged statements in all types of cases, not just criminal cases.

Thus, as crafted, the majority’s new exception creates a pernicious tool for

government and private lawyers to exploit confidential communications between

opposing counsel and their clients. With such a rule, the chilling of attorney-client

communications, in particular between attorneys and clients seeking direct legal

services in the matters that consume the District’s courts and agencies, is inevitable.

Any good lawyer will caution their clients to regulate their speech. In so doing, the

lawyer will send the now-accurate message that their conversations are not truly

protected and that clients should think twice about revealing their thoughts and

feelings to counsel.

I. The Nature of Privileges and the Attorney-Client Privilege in Particular

The maxim that, “[i]n our judicial system, the public has a right to every man’s

evidence,” ante majority at 12 (quoting Trump v. Vance, 591 U.S. 786, 791 (2020)),

is just that—a general principle, not an accurate descriptor of reality. In fact, swaths

of evidence are kept out of our courts, regularly, for myriad reasons. In criminal

cases, for example, defendants cannot be forced to incriminate themselves, the

Confrontation Clause generally forbids the admission of testimonial statements in

court by an absent speaker, and the exclusionary rule bars the government from

66

presenting evidence that it acquired by unconstitutional means. 1 And in all cases—

civil and criminal—evidentiary rules like rules against hearsay, character evidence,

and evidence that is substantially more prejudicial than probative block evidence

from being considered by the factfinder.

Privileges also keep evidence from the factfinder in civil and criminal cases.

But whereas evidentiary rules are usually aimed at excluding unreliable evidence

and promoting the truth-seeking function of a legal proceeding, privileges “are not

designed or intended to facilitate the fact-finding process or to safeguard its

integrity.” 1 McCormick on Evidence § 72 (9th ed.). “[R]ather than facilitating the

illumination of truth, they shut out the light.” Id.; see also Rebecca Wexler,

Ignorance of the Rules of Omission: An Essay on Privilege Law, 76 Vand. L. Rev.

1609, 1616 (2023) (stating that it is “clear” privileges are “unapologetically anti-

accuracy”). Privileges reflect a determination that certain values or ends extrinsic to

the litigation process are more important than accessing all the evidence or getting

the “right” result in a particular case. Edward J. Imwinkelried, The New Wigmore:

Evidentiary Privileges § 1.3 (2d ed. 2009) (defining a privilege as a “[s]tatutory or

common law . . . [p]rocedural rule . . . inspired primarily by extrinsic social policy

1

See, e.g., Malloy v. Hogan, 378 U.S. 1, 6 (1964) (discussing the protection

against self-incrimination); Crawford v. Washington, 541 U.S. 36, 68 (2004)

(discussing the confrontation clause); Wong Sun v. United States, 371 U.S. 471, 484-

85 (1963) (discussing the exclusionary rule).

67

(as opposed to institutional concerns about the quality of judicial evidence or the

functioning of the adversary legal system[)]” (footnotes omitted)); Wexler, supra at

1616 (explaining that privileges “reflect a judgment that certain values—be they

personal privacy, commercial innovation, or military espionage—matter more than

exposing truth in the courts”); Alex Stein, The New Doctrinalism: Implications for

Evidence Theory, 163 U. Pa. L. Rev. 2085, 2094 (2015) (noting that privileges

“suppress evidence for purposes unrelated to factfinding”).

At common law, courts developed a subset of privileges to protect

relationships—for example, between an individual and their clergyperson or their

spouse—that were “regarded as of sufficient social importance to justify some

sacrifice of availability of evidence relevant to the administration of justice.” 1

McCormick on Evidence § 72 (9th ed.); see also Imwinkelried, supra § 1.1

(“[U]nlike most evidentiary rules, privileges protect interpersonal relationships

outside the courtroom.” (quoting Federal Rules of Evidence, H.R. Rep. No. 93-650,

93d Cong., 1st Sess. 28 (1973))); 8 Wigmore, Evidence § 2285 (McNaughton rev.

1961) (acknowledging that privileges should be created if there is a “relation” which

the community believes “ought to be sedulously fostered”). “The rationale

traditionally advanced for these privileges is that public policy requires the

encouragement of the communications without which these relationships cannot be

effective.” 1 McCormick on Evidence § 72 (9th ed.). But these privileges were also

68

supported by normative rationales, rooted in values such as privacy and autonomy,

independent of the privileges’ effects on human behavior. Id. The oldest of these

relational privileges is the attorney-client privilege. 2

Like other relational privileges, the attorney-client privilege is supported by a

range of justifications. Wigmore championed the idea that “[i]n order to promote

freedom of consultation of legal advisors by clients, the apprehension of compelled

disclosure by the legal advisors must be removed; hence the law must prohibit such

disclosure except on the client’s consent.” Wigmore, supra § 2291. Subsequent

commentators have given this rationale a “utilitarian” or “instrumental” label, see,

e.g., 24 Wright & Miller, Fed. Prac. & Proc. Evid. § 5472 (1st ed.), and unpacked its

logic as follows: (1) “the law is complex”; (2) “it is in the public interest that citizens

should understand the law and this can best be accomplished by allowing them to

obtain advice from persons learned in the law”; (3) for attorneys to give good advice,

they “must be informed by the client of all of the facts, good and bad” and, equally

important, the client “needs to feel that he can tell his lawyer everything because this

engenders trust and confidence in the lawyer,” which is “good in itself” and “makes

2

Wigmore dated the attorney-client privilege back to “the reign of Elizabeth

I” (which spanned from 1558 to 1603), explaining that the privilege “commended

itself at the very outset as a natural exception to the then novel right of testimonial

compulsion.” Wigmore, supra § 2290; see also 1 Paul R. Rice, Attorney-Client

Privilege: State Law Maryland § 1:2 (July 2024 Update).

69

it more likely that the client will accept the advice offered or approve the litigation

strategy followed by counsel”; (4) without the privilege, clients would limit

communications with counsel; and (5) thus, the benefits of the privilege outweigh

the costs. Id. (footnotes omitted).

In addition to this utilitarian rationale, the privilege is undergirded by the

normative understanding that the revelation of attorney-client confidences is simply

“wrong,” Wright & Miller, supra § 5472, in the nature of a “betrayal,” id. (quoting

Zephaniah Swift, The Law of Evidence 94 (1810)), and contrary to “the notion that

human dignity is one of the core values of [our] adversary system,” id. 3 Early

commentators justified the privilege by appealing to a sense of morality: “To creep

into the confidence of even a guilty man, under the pretence of being his defender,

for the purpose of bringing him to justice, is an act that never can be viewed in a

moral or respectable light.” Wright & Miller, supra § 5472 (quoting 1 Livingston,

Works 465 (1873)); see also id. (“‘every feeling of justice, honour, and humanity

would be shocked’ by the attorney’s revelation of his client’s secrets.”). Modern

commentators are more likely to invoke the language of autonomy, dignity, privacy,

3

Although Wigmore argued that the normative rationale predominated only

at the outset, and that it was soon replaced by the utilitarian rationale, see Wigmore,

supra § 2290, that characterization was more aspirational than descriptive. “The

elimination of non-instrumental justifications was a goal of Wigmore and the other

Progressive writers, but it was one that was never achieved, except in their own

writings.” Wright & Miller, supra § 5472 (footnote omitted).

70

and constitutional rights. Id.; see also Imwinkelried, supra §§ 1.1, 5.3.3(3)(c); 1

McCormick on Evidence § 72 (9th ed.). In criminal cases, the attorney-client

privilege is now recognized as “a necessary concomitant of [a defendant’s] Fifth

Amendment right not to incriminate himself and his Sixth Amendment right to the

assistance of counsel.” Wright & Miller, supra § 5472; see also Neku v. United

States, 620 A.2d 259, 262 (D.C. 1993) (“In the criminal context the [attorney-client]

privilege acquires Sixth Amendment protection.”); accord In re Pub. Def. Serv., 831

A.2d 890, 899-900 (D.C. 2003) (hereinafter In re PDS). And “[s]ome courts have

suggested that the privilege may receive some constitutional sanction in civil cases

under the client’s right of privacy.” Wright & Miller, supra § 5472.

In short, the privilege exists both to promote open and trusting attorney-client

communication and to protect the role of lawyer as a “fighter for” their client, a

“tradition [that] would be outraged by routine examination of the lawyer as to the

client’s confidential disclosures regarding professional business.” 1 McCormick on

Evidence § 87 (9th ed.).

71

II. The Attorney-Client Privilege in the District

To determine when the attorney-client privilege applies, this court, like the

federal courts, still employs the test formulated by Wigmore. 4 Under this test, the

privilege applies:

(1) where legal advice of any kind is sought (2) from a

professional legal advisor in his capacity as such, (3) the

communications relating to that purpose, (4) made in

confidence (5) by the client, (6) are at his instance

permanently protected (7) from disclosure by himself or

by the legal adviser, (8) except the protection be waived.

Jones v. United States, 828 A.2d 169, 175 (D.C. 2003) (quoting Wigmore, supra

§ 2292); see also ante majority at 13. When the privilege applies under this test, it

has been “traditionally deemed worthy of maximum legal protection.” In re PDS,

831 A.2d at 900 (quoting Haines v. Liggett Grp. Inc., 975 F.2d 81, 90 (3d Cir.

1992)); 8 Wright & Miller, Fed. Prac. & Proc. Civ. § 2017 (3d ed.) (explaining that

communications within the scope of the attorney-client privilege are “zealously

protected”); see also Swidler & Berlin v. United States, 524 U.S. 399, 410 (1998)

4

See, e.g., Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002);

United States v. Stern, 511 F.2d 1364, 1367-68 (2d Cir. 1975); United States v. El

Paso Co., 682 F.2d 530, 538 n.9 (5th Cir. 1982); Radiant Burners, Inc. v. Am. Gas.

Ass’n, 320 F.2d 314, 319 (7th Cir. 1963); Matter of Fischel, 557 F.2d 209, 211 (9th

Cir. 1977); see also Fisher v. United States, 425 U.S. 391, 403 (1976).

72

(expressing concern about a “‘no harm in one more exception’ rationale [that] could

contribute to the general erosion of the privilege”).

Until now, this court has recognized only one exception to the application of

the privilege when all its conditions are met.

Under the narrow crime-fraud exception, communications that are in

“furtherance of an ongoing or future crime or fraud” are not protected. In re PDS,

831 A.2d at 902; see also id. (explaining that the exception applies “if the client uses

the attorney’s advice or services to pursue a crime or fraud, or if the attorney-client

communication itself materially advances a crime or fraud, even if the client’s efforts

are frustrated or halted short of consummation of the evil deed”). But this exception

has no application to communications regarding past wrongdoings, id., or

communications that are not “actually . . . in furtherance of an ongoing or future

crime,” id. at 895; see also id. at 906 (“It does not suffice that the communications

may be related to a crime . . . . [T]he court must determine that the communication

was itself in furtherance of the crime or fraud . . . .” (internal citations and quotation

73

marks omitted)). 5 In short, for the crime-fraud exception to apply, the attorney-client

communication has to help the client advance a criminal or fraudulent purpose. 6

The crime-fraud exception is based on the understanding that the privilege

should not apply where the attorney-client relationship is being “misused” or

“abused” to advance criminal ends. Id. at 909-10; see also id. at 908 (explaining

that the purposes of the attorney-client privilege “do not include concealing abuses

of the attorney-client relationship to further the commission of a crime or fraud”);

Clark v. United States, 289 U.S. 1, 15 (1933) (explaining that “[t]here is a privilege

5

See also Wigmore, supra § 2298 (“It has been agreed from the beginning

that the privilege cannot avail to protect the client in concerting with the attorney a

crime or other evil enterprise. This is for the logically sufficient reason that no such

enterprise falls within the just scope of the relation between legal advisor and client.”

(emphasis added)); Imwinkelried, supra § 6.13.2(d)(1) (“During an attorney-client

consultation, the client might mention his or her planned future crime without

seeking the attorney’s assistance in executing the plan. If so, the privilege would

still attach. The exception applies only when the communication itself was made in

furtherance of the crime or fraud.” (footnotes and internal quotation marks omitted)).

6

In re Sealed Case, 754 F.2d 395 (D.C. Cir. 1985), is a quintessential example

of the application of this exception. In that a case, a church involved in litigation

“embarked on a massive and systemic program to destroy and alter subpoenaed

evidence or evidence sought pursuant to civil discovery requests,” with the help of

outside counsel who facilitated the presentation of perjured testimony and filed (and

verified the authenticity of) false documents. Id. at 397, 402. Based on its

determination that counsel “were instrumentalities in the ongoing cover-up whether

they realized it or not,” and the attorneys’ “representation and advice . . . assisted

[the church] in carrying out its illegal and fraudulent scheme,” the court held that the

crime-fraud exception applied and that counsel could be compelled to testify before

a grand jury. Id. at 402.

74

protecting communications between attorney and client. The privilege takes flight

if the relation is abused. A client who consults an attorney for advice that will serve

him in the commission of a fraud will have no help from the law.”). In fulfilling

their obligation to serve as zealous advocates, lawyers may help their clients evade

civil and criminal liability by wielding all the tools of our adversarial system. But

they cannot help their clients commit new crimes.

III. The Application of the Privilege in Its Current Form to Mr. Moore’s

Communications with Mr. Harvey

The communications at issue in this case satisfied the criteria for the attorney-

client privilege in its current form, and the crime-fraud exception has no application.

Thus, under the law as it stood before the issuance of this opinion, Mr. Harvey

should not have been permitted to testify against Mr. Moore at Mr. Moore’s later

criminal trial for threats. The majority does not contend otherwise. Ante majority

at 11, 18. There would be no need for it to create its new threats exception to the

privilege if it did.

A. Procedural Preface About the Communications at Issue

Ordinarily, parties litigate whether the attorney-client privilege protects

sought-after communications before they are disclosed for use in court, cf. Mohawk

75

Indus., Inc. v. Carpenter, 558 U.S. 100, 110-12 (2009) (explaining that once an order

denying the protection of the privilege has been issued, a party can challenge that

order before those communications are elicited as evidence, which “provide[s]

assurances to clients and counsel about the security of their confidential

communications”). Thus, for example, in In re PDS, the parties litigated the

application of the privilege in the context of a motion to quash a subpoena for

counsel’s grand jury testimony, which was immediately appealed. 831 A.2d at 895-

97. This court explained that “the party seeking to overcome the claim of privilege[]

has the burden of proof,” and to meet that burden that party “must present the court

with evidence showing probable cause to believe the crime-fraud exception applies

to the communications in question.” Id. at 902. Observing in In re PDS that the

government had sought to carry that burden with “an unsworn narrative proffer,”

this court held that “an evidentiary submission, such as a sworn affidavit by a

competent affiant, should be the norm.” Id.

In this case, Mr. Harvey testified before a grand jury, an arm of the court,

United States v. Perkins, 433 F.2d 1182, 1187 n.38 (D.C. Cir. 1970), giving a

detailed narrative of Mr. Moore’s two sets of threatening statements in April and

June 2018, without anyone inquiring whether his testimony should be barred by the

attorney-client privilege. Mr. Moore was not given the opportunity to litigate

whether the privilege protected his communications with Mr. Harvey from

76

evidentiary use until he went to trial on threats charges, 7 at which point the

government used Mr. Harvey’s grand jury testimony to support its argument that the

attorney-client privilege did not apply to Mr. Moore’s communications with

Mr. Harvey.

This was wrong. The communications between Mr. Moore and Mr. Harvey

were presumptively privileged. See In re PDS, 831 A.2d at 903 (“The privilege

presumptively applies both to the verbal statements of Attorney and Client and . . .

to any documents conveyed by Client to Attorney for the purpose of securing legal

advice.”). Arguably the government or the court had some obligation either to

ensure that Mr. Moore had some ability to invoke the privilege or to invoke it on his

behalf. 8 See Restatement (Third) of the Law Governing Lawyers § 86(1)(c) (Am.

L. Inst. 2000) (providing that “the tribunal has discretion to invoke the privilege”

where no one else has done so). But in any event, Mr. Harvey had an obligation as

7

As the majority acknowledges, when finally given the opportunity to contest

the admission of Mr. Harvey’s testimony, Mr. Moore asserted that Mr. Harvey had

“flat[]out lied” about their communications and that he had never made threatening

statements about the contempt prosecutor to Mr. Harvey. Ante majority at 7-8

(alteration in original).

8

Notably, the government took care to advise Mr. Harvey of his rights before

he testified before the grand jury.

77

Mr. Moore’s former lawyer to claim the privilege on Mr. Moore’s behalf and allow

litigation (or waiver) of this issue before Mr. Harvey testified before the grand jury.

As recognized in the Restatement of the Law Governing Lawyers, “[a]

lawyer . . . from whom a privileged communication is sought must invoke the

privilege when doing so appears reasonably appropriate, unless the client . . . has

waived the privilege or . . . has authorized the lawyer . . . to waive it.” Id. § 86(1)(b);

see, e.g., In re PDS, 831 A.2d at 896 (agency employing counsel moved to quash

subpoena calling for counsel’s testimony before a grand jury on grounds of attorney-

client privilege). 9 This obligation persists even after the attorney-client relationship

has ended. See Wigmore, supra § 2292 (explaining privileged communications are

“permanently protected . . . from disclosure”); Restatement (Third) of the Law

Governing Lawyers § 77 (Am. L. Inst. 2000) (“Unless waived . . . or subject to

9

See also In re Sealed Case, 141 F.3d 337, 377 (D.C. Cir. 1998) (explaining

that a lawyer is “normally duty-bound to assert” “the privilege of [their] client”); In

re Search Warrant Issued June 13, 2019, 942 F.3d 159, 173 (4th Cir. 2019)

(explaining that, “in proceedings such as these [litigating a challenge to government

inspection of arguably privileged documents], lawyers are obliged to protect the

attorney-client privilege to the maximum possible extent on behalf of their clients,”

and stating that a “lawyer has a duty to invoke [a] claim of privilege on [their]

client’s behalf”); Schwimmer v. United States, 232 F.2d 855, 863 (8th Cir. 1956)

(“[T]he attorney has the duty, upon any attempt to require him to testify or produce

documents within the confidence, to make assertion of the privilege, not merely for

the benefit of the client, but also as a matter of professional responsibility in

preventing the policy of the law from being violated.”); accord Tillotson v.

Boughner, 350 F.2d 663, 665 (7th Cir. 1965); Hunter v. Kenney, 422 P.2d 623, 624-

25 (N.M. 1967).

78

exception . . ., the attorney-client privilege may be invoked . . . at any time during or

after the termination of the relationship between client or prospective client and

lawyer.”); id. § 77 cmt. c (“A lawyer for a client who has died has a continuing

obligation to assert the privilege.”). 10

Litigating the privilege issue without Mr. Harvey’s grand jury testimony and

with only the contemporaneous transcripts of Mr. Moore’s contempt trial in 2018

would have put this case in a very different light. Without Mr. Harvey’s after-the-

fact characterizations in the grand jury, the contemporaneous transcripts make it far

from clear that Mr. Harvey believed Mr. Moore had uttered any statement that

constituted a criminal threat or posed a danger—and instead paint a picture of an

attorney and client who simply did not get along.

10

See also United States v. Edgar, 82 F.3d 499, 508 (1st Cir. 1996) (explaining

in the context of former counsel being subpoenaed to testify before a grand jury:

“Generally, an attorney has an obligation to assert the privilege on behalf of the client

and not to disclose confidential information until there is a judicial determination

that there is no privilege. . . . Even if there is an assertion that there is no privilege

because the crime-fraud exception applies, the attorney is required to give notice to

the client.”); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 556 (2d Cir.

1967) (holding in a case involving the invocation of the privilege on behalf of a

former client that, “[n]ot only may an attorney invoke the privilege [o]n his client’s

behalf when the client is not a party to the proceeding in which disclosure is

sought, . . . but he should do so, for he is ‘duty-bound to raise the claim in any

proceeding in order to protect communications made in confidence.’” (quoting A.B.

Dick Co. v. Marr, 95 F. Supp. 83, 101 (S.D.N.Y. 1950))); accord McCormick on

Evidence § 92 nn.8, 14 (9th ed.).

79

After the first set of alleged threats, Mr. Harvey told the court that he might

“have an ethical issue” and asked for time to speak to “Bar Counsel,” seemingly

referring to the D.C. Bar’s Legal Ethics Counsel. 11 Thereafter, he sought to

withdraw from the case under D.C. R. Prof. Conduct 1.16(b), which provides

standard for terminating representation. Although the court pressed him for more

details, he repeatedly represented that he could not give the court more information,

even though under the ethical rules he could have made a disclosure if in fact he

“reasonably believe[d]” Mr. Moore was going to shoot the prosecutor. D.C. R. Prof.

Conduct 1.6(c) (authorizing an attorney “to reveal client confidences . . . to the

extent reasonably necessary . . . to prevent a criminal act that the lawyer reasonably

believes is likely to result in death or substantial bodily harm absent disclosure.”). 12

11

“Bar Counsel” is the old name for the Office of Disciplinary Counsel.

Office of Disciplinary Counsel: Purpose and Mission, DC Bar,

https://www.dcbar.org/attorney-discipline/office-of-disciplinary-counsel/purpose-

and-mission; https://perma.cc/D43X-XGRN. The D.C. Bar’s Legal Ethics Counsel

operates a telephone helpline to provide real-time ethics advice for attorneys. See

Ethics Advice, DC Bar, https://www.dcbar.org/for-lawyers/legal-ethics/ethics-

advice; https://perma.cc/28DC-J5QY.

12

Even if he had made a Rule 1.6(c) disclosure, that would not have been

dispositive of the application of the privilege. Because the duty of confidentiality

differs in scope and serves distinct purposes from the attorney-client privilege, it is

subject to its own distinct set of exceptions. See D.C. R. Pro. Conduct 1.6(c)-(e);

see also id. cmt. 6 (explaining that the ethical rules are “not intended to govern or

affect judicial application of the attorney-client privilege”). Moreover, although the

confidentiality of a communication at the time it is made is an essential criterion of

the privilege, the protection of the privilege is not lost if the attorney later breaches

80

Similarly, after the second set of alleged threats, Mr. Harvey’s focus was on

withdrawing from his representation of Mr. Moore. After Mr. Moore’s alleged

outburst, Mr. Harvey declared to the court: “I can’t represent him. And if you force

me to tell you, then I’ll just have to tell you this time,” seemingly invoking D.C. R.

Prof. Conduct 1.6(e)(2)(A) (authorizing disclosure inter alia “when required by . . .

court order”)—not Rule 1.6(c). This statement prompted the court to issue a

disclosure order, whereupon Mr. Harvey told the court that “he’s threatening to

shoot her,” referring to the prosecutor, immediately followed by his declaration, “I

ain’t representing him. We are adversaries, but I respect [the prosecutor]. I’m not

representing that man.” His subsequent representations to the court arguably

reinforce a conclusion that he was largely motivated to disclose Mr. Moore’s

statements and pursue withdrawal because of the breakdown in his relationship with

Mr. Moore—not because of his concern that Mr. Moore had uttered “an objectively

credible threat.” In response to the court’s efforts to continue with the contempt trial

the client’s confidence and discloses the communication to a third party. Only the

possessor of the privilege—the client—can waive its protection. See Haines, 975

F.2d at 90 (“[The [attorney-client] privilege belongs to the client, and only the client

may waive it.”); In re von Bulow, 828 F.2d 94, 100 (2d Cir. 1987) (“Of course, the

[attorney-client] privilege belongs solely to the client and may only be waived by

him.”); In re EchoStar Commc’ns Corp., 448 F.3d 1294, 1301 (Fed. Cir. 2006)

(“This [attorney-client] privilege is at the discretion of the client.”); Wigmore, supra

§ 2321; D.C. R. Pro. Conduct 1.6 cmt. 7 (“The attorney-client privilege is that of the

client and not of the lawyer.”).

But the fact that Mr. Harvey did not make a Rule 1.6(c) disclosure provides

strong evidence as to his contemporaneous view of Mr. Moore’s statements.

81

with Mr. Harvey as Mr. Moore’s counsel, 13 Mr. Harvey told the court that his

relationship with Mr. Moore “ha[d] become toxic. Our ability to communicate–my

skin starts to boil and so does his. I do not believe that it is a healthy relationship.”

He further stated that his discussions with Mr. Moore “have been ugly but they’ve

only been discussions” and that he was “not accusing Mr. Moore of anything other

than the fact that he and my interactions have gotten to the point where[] both of us

don’t want to be in the same room with each other.”

Although the dissent recognizes that Mr. Moore has not raised this procedural

issue, we detail this contemporaneous record information to underscore the

procedural advantage the government gained by not being forced to litigate the

privilege issue before it put Mr. Harvey before the grand jury. 14 Our aim is (1) to

make clear that this court is not blessing the practice of putting a lawyer in front of

a secret grand jury to reveal presumptively confidential client communications

without giving the client a meaningful opportunity to invoke the attorney-client

privilege, and (2) to highlight counsel’s obligation to invoke the privilege on behalf

13

The court was skeptical both that Mr. Moore’s statements had irreparably

damaged Mr. Harvey and Mr. Moore’s relationship and, as the majority

acknowledges, ante majority at 6-7, that Mr. Moore truly meant to hurt the

prosecutor, see infra Part IV.A.

14

For its part, the government has not argued that the privilege was waived

once Mr. Harvey testified in front of the grand jury, presumably recognizing how

unfair it would be to deny Mr. Moore any opportunity to litigate this issue.

82

of current and former clients, particularly when those clients are not in a position to

do so themselves.

B. Mr. Moore’s Communications Related to a Legal Purpose.

Before the division of this court that initially heard Mr. Moore’s appeal, the

only question regarding the application of the attorney-client privilege was whether

Mr. Moore was seeking legal assistance when he made the statements to Mr. Harvey

that were subsequently prosecuted as criminal threats. 15 This question is easily

15

Before the en banc court the government argues for the first time that a

different criterion—requiring the communications be made in confidence—was not

satisfied with respect Mr. Moore’s second set of statements to Mr. Harvey, because

Mr. Harvey had warned Mr. Moore that he would withdraw if Mr. Moore made any

more threats. No member of this en banc court embraces this view, which would

still render the first set of statements privileged. See ante majority at 11, 18; see

generally ante McLeese, J., concurring at 42-47; ante Deahl, J., concurring at 47-

61.

Judge McLeese asserts in his concurrence that neither of Mr. Moore’s

statements were made in confidence, but for a different reason than the one briefed

by the government: Mr. Moore could not have reasonably believed his statements

would remain confidential because Mr. Harvey “had no fiduciary duty to keep

Mr. Moore’s repeated threats confidential.” Ante McLeese, J., concurring at 46.

Judge McLeese’s concurrence does not explain why the boundaries of the

fiduciary duty should dictate the contours of the privilege, particularly where the

boundaries of the ethical rule do not “govern or affect judicial application of the

attorney-client privilege,” D.C. R. Prof. Conduct 1.6 cmt. 6; see also ante McLeese,

J., concurring at 47, and the fiduciary duty and the ethical rule are so intertwined in

our caselaw, see Griva v. Davison, 637 A.2d 830, 846-47 (D.C. 1994) (explaining

that “a violation of the Code of Professional Responsibility or the Rules of

Professional Conduct can constitute a breach of the attorney’s common law fiduciary

83

answered. Mr. Moore’s statements clearly related to a legal purpose—a proposition

that no member of this en banc court contests. See ante majority at 11, 18; ante

Deahl, J., concurring at 53-55, 60; see generally ante McLeese, J., concurring at 42-

47.

As this court has previously explained, the attorney-client “privilege applies

if one of the significant purposes of a client in communicating with a lawyer is that

of obtaining legal assistance.” Jones, 828 A.2d at 175 (quoting Restatement (Third)

of the Law Governing Lawyers § 72 reporter’s note (Am. L. Inst. 2000)); see also

duty to the client”); Herbin v. Hoeffel, 806 A.2d 186, 195 & n.14, 197 n.17 (D.C.

2002) (citing the Rules of Professional Conduct for the standard of the fiduciary duty

of confidentiality); id. at 197 (quoting a lawyer discipline case for the proposition

that “disclosure of client confidences is ‘contrary to the fundamental principle that

the attorney owes a fiduciary duty to [her] client and must serve the client’s interest

with the utmost loyalty and devotion’” (quoting In re Gonzalez, 773 A.2d 1026, 1031

(D.C. 2001))).

Furthermore, Judge McLeese’s concurrence also does not explain why

Mr. Moore would not have “reasonably believed” his midtrial, private

communications with his lawyer were made in confidence. Jones v. United States,

828 A.2d 169, 176 (D.C. 2003) (explaining that, when determining whether a

communication was made in confidence, our focus is on what the client “reasonably

believed” at the time the communication was made); see also ante McLeese, J.,

concurring at 42-43; Rule of Professional Conduct 1.6 cmt 7 (a client generally “has

a reasonable expectation that information relating to the client will not be voluntarily

disclosed and that disclosure of such information may be judicially compelled only

in accordance with recognized exceptions to the attorney-client privilege and work

product doctrine”). Even assuming Mr. Moore should be deemed to have had

constructive knowledge of the boundaries of the fiduciary duty of confidentiality, as

Judge McLeese acknowledges, our court has never addressed “whether there is an

exception to the general fiduciary duty of confidentiality when a client makes serious

criminal threats.” Ante McLeese, J., concurring at 45.

84

Wigmore, supra § 2310 (“[T]he client cannot know what is necessary or

material . . . . The test is, therefore, not whether the fact or the statement is actually

necessary or material or relevant to the subject of the consultation, but whether the

statement is made as a part of the purpose of the client to obtain advice on that

subject.”). So construed, the “significant purpose” test sensibly operates in many

contexts to exclude communications that are only “tangentially related” to a legal

purpose, Att’y Gen. of U.S. v. Covington & Burling, 430 F. Supp. 1117, 1121 (D.D.C.

1977), particularly where the attorney and the client are mutually engaged in both

legal and nonlegal activities, see, e.g., Jones, 828 A.2d at 175 (“In the case of

someone seeking advice from a friend who is also a lawyer, the lawyer-friend must

be giving advice as a lawyer and not as a friend in order for the privilege to attach.”).

Accepting Mr. Harvey’s narrative, Mr. Moore’s statements were made with

the significant purpose of seeking legal assistance. Mr. Harvey was representing

Mr. Moore in a contempt proceeding after Mr. Moore was accused of violating an

order prohibiting him from having contact with his then-wife. Both sets of

statements related to Mr. Moore’s conditions of release; Mr. Moore was expressing

his strong emotions about the prosecutor’s efforts to restrict his liberty, as well as

his fear of losing his job. These statements, intemperate though they may have been,

fall within the heartland of the attorney-client privilege.

85

Mr. Moore made the first set of statements about which Mr. Harvey testified

just after the prosecutor asked the court to order Mr. Moore to wear an ankle monitor

as a condition of release. When Mr. Harvey and Mr. Moore walked out into the

courthouse hallway after the hearing, Mr. Moore expressed his frustrations about the

prosecutor and her request, telling Mr. Harvey, “Fuck that bitch. I hate this bitch.”

Although Mr. Harvey acknowledged at trial that Mr. Moore’s feelings of anger were

“normal,” Mr. Harvey told Mr. Moore at the time that it was “just silly on his part to

be angry.” Not reassured by this response, Mr. Moore went further, saying, “Man,

fuck that bitch. Fuck that bitch. I’ll shoot that bitch. Fuck that bitch.” 16 When

Mr. Harvey asked, “Man, what are you talking about?” Mr. Moore responded,

“That’s right, Harvey, I’ll shoot that bitch.” And when Mr. Harvey told Mr. Moore,

“You starting to make me think you serious,” Mr. Moore answered, “God damn

right, Harvey. Fuck that bitch. I’ll shoot that bitch.” 17 But shortly thereafter,

16

Before the grand jury, Mr. Harvey testified that Mr. Moore’s statements

were more clearly conditional: “She keep fucking with me, I’m going to shoot this

bitch. I’ll fuck this bitch up.” Mr. Harvey also testified that, in response to his

attempt to defend the prosecutor (who Mr. Harvey identified as a friend to whom he

spoke every day), Mr. Moore asked, “What, are you trying to have sex with her or

something?”

According to Mr. Harvey’s grand jury testimony, Mr. Moore also told him

17

he owned guns (presumably in North Carolina). Ante majority at 4.

86

Mr. Moore told Mr. Harvey that he was “just bullshitting” and “didn’t mean it.” 18

Mr. Harvey said he would believe Mr. Moore if Mr. Moore ever “use[d] this kind of

language” again. Mr. Harvey further admonished Mr. Moore, “If you decide you

want to go shoot somebody, you need to keep that to yourself and don’t make me a

part of it.” 19 Mr. Moore assured Mr. Harvey that he would “say nothing like that

again” and repeated that he “was just bullshitting.”

Between this incident and the next, Mr. Moore started training for a new job

as a crane operator. This change made it even more difficult for Mr. Moore to travel

from North Carolina for his court dates because he was required to attend a certain

18

Mr. Harvey had seemingly already reached this conclusion, given that, as

noted above, see supra Part III.A, he asked the court to withdraw pursuant to

Rule 1.16. Even after consulting with Legal Ethics Counsel to determine the

circumstances under which he could disclose Mr. Moore’s statements to the court,

see ante majority at 4, he did not make a Rule 1.6(c) disclosure and repeatedly

asserted that he was not permitted to share what Mr. Moore had said absent a court

order.

The majority suggests that Mr. Harvey specifically invoked the provisions of

Rule 1.16(b)(1) and (2), which allow counsel to “withdraw from representing a client

if . . . [t]he client persists in a course of action involving the lawyer’s services that

the lawyer reasonably believes is criminal or fraudulent . . . [or] the client has used

the lawyer’s services to perpetrate a crime or fraud.” See ante majority at 4-5.

Although Mr. Harvey told the court presiding over the contempt trial that he “ha[d]

concerns” related to these rules, when he was asked at Mr. Moore’s threats trial if

he had sought to rely on these two provisions, he responded “no.” Instead, he

indicated that he was seeking to rely on “all five parts” of Rule 1.16(b) generally.

19

Before the grand jury only, Mr. Harvey testified that he told Mr. Moore that

if Mr. Moore “ever sa[id] anything like that to [him] again,” Mr. Harvey would “tell

the court that [he] said it.”

87

number of classes within a specified period of time. Mr. Harvey attempted to

convince the judge to allow Mr. Moore to be absent from some of the hearings, but

he was unsuccessful, and the court said that if Mr. Moore did not attend all of the

hearings in person, it would issue a bench warrant for Mr. Moore’s arrest.

At the next hearing, the prosecutor succeeded in convincing the court, over

Mr. Harvey’s objection, to order Mr. Moore to wear an ankle monitor. But because

the Friday afternoon hearing had run late, Mr. Moore was ordered to return on

Monday for the monitor’s installation. Mr. Moore was extremely upset because he

would have to stay in the District for multiple more days and miss one of his trainings

on Monday. As soon as they exited the courtroom, Mr. Moore told Mr. Harvey,

“Harvey, Harvey, if I lose my job, I’m going to bust a cap in this bitch, I’m going to

bust a cap in this bitch.” When Mr. Harvey asked, “Man, what are you doing?”

Mr. Moore responded “Man, fuck this bitch,” and repeated, “If I lose my job, I’m

going to bust a cap in this bitch,” punctuating his statement with a shooting gesture.

Mr. Harvey then said, “I told you what I was going to do if you ever said something

like that to me again,” which prompted a “fuck her, fuck you” response from

Mr. Moore. 20

There is no trial evidence that Mr. Harvey had told Mr. Moore what he

20

would do if Mr. Moore made these statements again. See supra note 19. As it

88

The heated manner in which Mr. Moore asked Mr. Harvey for help with his

conditions of release does not defeat the application of the attorney-client privilege

to his exchanges with counsel. Imposing formalistic requirements about how one

must request advice for the privilege to apply would blink reality and be antithetical

to the purposes of the privilege. Practicing attorneys represent their clients in all

sorts of stressful situations where strong emotional reactions are to be expected.

From a utilitarian perspective, we want people to voice their frustrations to their

attorneys—including their frustrations about how their case is being handled. See

supra Part I; see also Imwinkelried, supra § 6.11 (acknowledging that in any

privileged relationship there must be some “‘space’ [for the relationship] to flourish”

(citation omitted)); 1 Paul R. Rice, Attorney-Client Privilege in the United States

§ 5:21 (2023) (“[A]n open, dynamic, and unguarded atmosphere” is the “very goal”

of the attorney-client privilege.); ante Deahl, J., concurring at 54 (agreeing that “[a]n

effective attorney needs to have a holistic understanding of their client, complete

with an understanding of their circumstances, worries, goals, and frustrations” and

attorney-client “communications thus must veer well outside the strict bounds of

discrete legal advice” and “cover things like rapport-building and personal

happened, Mr. Harvey returned to the judge, told her he could not represent

Mr. Moore, and said if she forced him to, he would disclose Mr. Moore’s statements

to her. See supra Part III.A.

89

communications that foster and undergird the relationship”). 21 And, normatively,

we want all laypeople—regardless of their innate abilities to navigate the legal

system or their emotional resilience at any particular time—to be able to rely on

expert legal advisors to level the playing field in our adversarial justice system.

Because Mr. Moore’s statements met all the criteria for protection under the

attorney-client privilege, Mr. Harvey should not have been permitted to testify about

these statements unless an exception to the privilege applied.

C. The Crime-Fraud Exception Does Not Apply.

The only previously recognized exception to the attorney-client privilege in

the District, the crime-fraud exception, does not apply to the statements Mr. Moore

conveyed to Mr. Harvey. As noted above, attorney-client communications must be

“in furtherance of an ongoing or future crime” to fall under this exception. In re

PDS, 831 A.2d at 895; see also supra Part II. Here, the crime Mr. Moore was

charged with committing was the crime of threats, which, as interpreted by this court,

requires proof that the defendant (1) “uttered words to another person” (2) “with a

21

The dissent welcomes Judge Deahl’s affirmative embrace of this broad

view of privileged communications and shares his understanding that a majority of

the en banc court has rejected the “impoverished . . . view” of the privilege espoused

by the Eighth Circuit in United States v. Ivers, 967 F.3d 709 (8th Cir. 2020), and the

Ninth Circuit in United States v. Alexander, 287 F.3d 811 (9th Cir. 2002). Ante

Deahl, J., concurring at 54; see also id. at 60.

90

result that ‘the ordinary hearer [would] reasonably . . . believe that the threatened

harm would take place,’” and (3) “with the purpose to threaten or with knowledge

that his words would be perceived as a threat.” 22 Carrell, 165 A.3d at 320, 324

(alterations in original) (footnote omitted) (quoting In re S.W., 45 A.3d 151, 155

(D.C. 2012)). But nothing that Mr. Harvey did or said furthered Mr. Moore’s

commission of the crime of threats. He did not, for example, endorse and encourage

repetition of Mr. Moore’s hotheaded statements, offer to convey them to the

prosecutor, or give advice as to how Mr. Moore could more effectively intimidate

the prosecutor. To the contrary, Mr. Harvey, in keeping with his duties as

Mr. Moore’s counsel, attempted (albeit arguably ineffectually) to get Mr. Moore to

stop his rants and calm down. Because Mr. Moore did not “obtain[] from his lawyer

the assistance he s[ought] to commit a crime or fraud,” In re PDS, 831 A.2d at 909—

he never even sought assistance from counsel for a criminal or fraudulent purpose;

he was seeking assistance to address his conditions of release in his ongoing

contempt case—his communications with Mr. Harvey do not fall within the crime-

fraud exception to the privilege. Cf. United States v. Chase, 340 F.3d 978, 982 (9th

Cir. 2003) (explaining that threats made by an individual to his therapist were

privileged because “[o]nce [he] finished uttering the threats, the charged crime was

22

Whether proof of recklessness towards the possibility that one’s words

would be perceived as a threat is sufficient remains an open question. Carrell v.

United States, 165 A.3d 314, 324 (D.C. 2017).

91

completed, and the psychiatrist was in the same position she would have occupied

had her patient described a bank robbery in which he had participated a week

earlier”).

Judge Deahl takes issue with this analysis and concludes in his concurrence

that Mr. Moore’s statements to Mr. Harvey fall under the crime-fraud exception

simply because Mr. Harvey heard them. But this view is based on a

misunderstanding of In re PDS and an unpersuasive assertion that a “capacious

understanding of the attorney-client privilege,” ante Deahl, J., concurring at 53,

which the concurrence endorses, must be coupled with an equally capacious

understanding of the crime-fraud exception.

Judge Deahl’s concurrence disputes that In re PDS recognized what he labels

“an assistance requirement” for the crime-fraud exception to apply and asserts that

such a requirement is “largely of the dissent’s own invention.” Id. at 50. It is not.

In re PDS expressly held that “the crime-fraud exception is applicable where a client

‘consults a lawyer for the purpose, later accomplished, of obtaining assistance to

engage in a crime or fraud,’” meaning that “the privilege is lost once the client

obtains from his lawyer the assistance he seeks to commit a crime or fraud.” 831

A.2d at 909 (emphasis added) (quoting Restatement (Third) of the Law Governing

Lawyers § 82(a)); see also id. (explaining that “the exception should operate, for

92

example, where the attorney is duped into unwittingly facilitating the client’s

unlawful scheme”); 23 id. at 910 (explaining that “[t]he government does not have to

show that the intended crime or fraud was accomplished, only that the lawyer’s

advice or other services were misused” (emphasis added)); id. (holding that the

crime-fraud exception did not apply because the Attorney “renounced” the client’s

plan in their communications and subsequently did not do “anything to advance

Client’s fraudulent plan after they conferred”). 24

To support its claim that the crime-fraud exception recognized by In re PDS

encompasses a client’s otherwise privileged, threatening statements to counsel

simply because counsel heard them, the concurrence relies on language in In re PDS

that communications between a client and their attorney are not privileged “if the

23

The concurrence’s criticism of the dissent for “limit[ing] the crime/fraud

exception to those instances where the attorney directly furnishes advice in

response” to a client’s communication is misplaced. Ante Deahl, J., concurring at

55. We understand In re PDS to hold that the crime-fraud exception applies once

the attorney has assisted the crime or fraud in some way—not necessarily only by

providing advice. In re PDS, 831 A.2d at 910 (explaining that “[t]he government

does not have to show that the intended crime or fraud was accomplished, only that

the lawyer’s advice or other services were misused” (emphasis added)).

24

This understanding of the crime-fraud exception aligns with its black letter

conception, as evidenced by In re PDS’s reliance on the Restatement. See 831 A.2d

at 906, 909; see also Imwinkelried, supra § 6.13.2(d)(1) (“During an attorney-client

consultation, the client might mention his or her planned future crime without

seeking the attorney’s assistance in executing the plan. If so, the privilege would

still attach.”).

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