On threats and the attorney-client privilege in Moore

The “attorney-client privilege” protects confidential communications between a client and their attorney.  

As an exception to the general rule that all relevant facts should be available in the truth-seeking process, the purpose of the privilege is to encourage clients to be open and honest with their lawyers.

The privilege belongs to the client, not the attorney.  It can cover oral, written, and even certain non-verbal communications.  It does not apply to non-legal communications or information shared with third parties.

D.C. courts generally follow the “Wigmore test” providing 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 advisor, (8) except the protection be waived.

There are also certain exceptions to the privilege; that is, instances in which the privilege either can be waived or does not apply.  For example, many courts recognize an exception to the attorney-client privilege where an attorney brings an action against their client for lack of payment.  In addition, a client is not allowed to use the attorney’s services to promote criminal activity. 

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The D.C. Court of Appeals recently issued a decision pertaining to felony threats and the attorney-client privilege in Brian Moore v. United States, __ A.3d __ (D.C. 2025). 

Criminal defense attorney John Harvey represented Moore in a criminal contempt proceeding.  After a hearing at which the D.C. prosecutor argued for more stringent pretrial release conditions, Moore expressed frustration to his attorney in the courtroom hallway.  Specifically, Moore promised multiple times to “fuck that bitch. Shoot that bitch.”

Harvey told Moore that he could no longer “be a part of this” and attempted to withdraw.  He also consulted D.C. bar counsel to learn that he was permitted to disclose the threats to the court but was not required to.

The trial court initially declined Harvey’s request to withdraw because Harvey “refused to explain why he wanted to withdraw and what Mr. Moore had said.” 

However, when Moore again threatened to kill the prosecutor at a subsequent hearing, Harvey again attempted to withdraw.  This time Harvey also disclosed the reason, and Moore was subsequently conviction of felony threats, with Harvey testifying against him at trial. 

The court held:

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.