Brief Fact Summary. Thomas Gionis (Defendant-Appellant) was convicted of conspiracy to commit an assault, conspiracy to commit a trespass, assault with a deadly weapon, and assault with a firearm. Defendant-Appellant appealed his conviction in state court, and the state Court of Appeal reversed. The prosecution filed a petition for review, which was granted and considered here.
Synopsis of Rule of Law. Communications made by a person to an attorney after the attorney expressly refuses to undertake representation of that person are not protected by the attorney-client privilege, as the person making the statements could not have a reasonable expectation of representation after the attorney has expressly refused to undertake such representation.
One year after marrying, Defendant-Appellant and Alissa Marie Wayne (Wayne) had a daughter, Anastasia. That same year, Wayne left Defendant-Appellant, taking Anastasia with her.
Wayne had Defendant-Appellant served with divorce papers and, upon receiving the papers, Defendant-Appellant called a friend and attorney, John Lueck (Lueck), and requested that Lueck come to his house.
Lueck went to Defendant-Appellant’s house after, “making it clear that he would not be willing to have any involvement as a lawyer” for Defendant-Appellant.
When Lueck arrived at Defendant-Appellant’s house, Defendant-Appellant appeared upset and, “displayed very wide mood swings, alternating between tears and anger.”
Defendant-Appellant at one point, “showed Lueck a declaration by Wayne in support of an order to show cause, and indicated he would like to change venue . . . .” Lueck told Defendant-Appellant, as a friend, that a change of venue may be appropriate, but at no time offered to file a motion with the court for the same.
Defendant-Appellant also, during Lueck’s visit, showed Lueck holes in the wall and a closet door that had been thrown off-track. Defendant-Appellant told Lueck that, “the altercation which resulted in the holes in the wall was nothing relative to what he was capable of doing” and also that, “Wayne ‘had no idea how easy it would be for [Defendant-Appellant] to pay somebody to really take care of her.’”
In 1988, Wayne began seeing a man named Roger Luby (Luby). After leaving an aerobics class together, Luby and Wayne returned to Luby’s home. Two men were waiting for them when they arrived, and when Luby and Wayne approached, the two men drew guns and struck Luby on the head, threatening to kill him if he yelled for help. Luby was handcuffed, and his face was smashed into the concrete floor; his Achilles tendon was also severed. Wayne was also threatened and her face also slammed into the concrete.
At Defendant-Appellant’s trial, Defendant-Appellant did not testify, but the prosecution did call Lueck, who testified as to the comments Defendant-Appellant had made to him concerning the holes in the wall and the relative ease with which Defendant-Appellant claimed he could have Wayne “taken care of.”
After being convicted, Defendant-Appellant appealed the conviction, arguing that the admission of Lueck’s statements was in violation of the attorney-client privilege. The Court of Appeal agreed and reversed Defendant-Appellant’s conviction, after which the prosecution filed a petition for review.
Issue. Was it error for the trial court to have excluded the statements made by Defendant-Appellant to Lueck?
Held. No; the statements made by Defendant-Appellant to Lueck were not privileged, as Defendant-Appellant did not make the statements while trying to retain a lawyer, and admission of the statements was not prejudicial to Defendant-Appellant.
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Justice Mosk dissented, writing, “I dissent from the majority and from Justice Kennard on the question of the admission of  Lueck’s testimony. The record in this case, despite Lueck’s and the majority’s self-serving characterization, shows that defendant consulted Lueck primarily in the latter’s capacity as an attorney, and that any statements made by defendant during the course of the consultation were privileged. The admission of this testimony over defendant’s objection was prejudicial error.” The dissent relied on the reason for the existence of the privilege, pointing out that, “‘[t]he basic policy behind the attorney-client privilege is to promote the relationship between attorney and client by safeguarding the confidential disclosures of the client and the advice given by the attorney. This policy supports a liberal construction in favor of the exercise of the privilege.’” (citations omitted). The dissent concluded that the relationship was primarily one that shoul
d trigger the privilege, and would have held that the statements were inadmissible.
Concurrence. Justices Kennard (writing) and Mosk dissented in part and concurred in part, writing, “I join the majority in reversing the judgment of the Court of Appeal. I write separately, however, to voice my disagreement with certain portions of the majority’s analysis of each of the two issues in this case.” Explaining in more detail, the separate opinion pointed out that, “[t]he majority upholds the trial court’s ruling that none of the conversation was protected by the attorney-client privilege. I disagree. Although the inculpatory statements themselves were not privileged, the privilege did apply to other portions of defendant’s conversation with Lueck.” Specifically, the separate opinion argued that, “Lueck testified that, in response to a specific inquiry by defendant regarding the advisability of asking the trial court to transfer the case from Orange County to Los Angeles County, he told defendant it might be appropriate to do so. In rendering this legal advice, Lueck was
acting in his ‘professional capacity’ as an attorney, thus triggering the attorney-client privilege as to this aspect of the conversation.”
Discussion. In reaching its conclusion, the court discussed the attorney-client privilege and when it applies. Specifically, the court explained:
We cannot endorse the Court of Appeal’s apparent view that the attorney-client privilege applies whenever issues touching upon legal matters are discussed with an attorney. That has never been the law. Significantly, a communication is not privileged, even though it may involve a legal matter, if it has no relation to any professional relationship of the attorney with the client. Moreover, it is not enough that the client seek advice from an attorney; such advice must be sought from the attorney “in his professional capacity.”
Finding that the statements made to Lueck by Defendant-Appellant did not constitute, “a situation in which an individual disclosed information while exploring the possibility of retaining the lawyer,” the court reversed the decision of the Court of Appeal, ultimately holding that Defendant-Appellant, “was told in no uncertain terms, prior to making any of the challenged communications, that Lueck wanted no involvement in the legal proceedings concerning [Defendant-Appellant] and Wayne.”