The principle of Attorney-Client privilege is something that every lawyer and most non-lawyers understand. It is a sacred principle in the legal profession and one that is held above all others. A lawyer could arguably be forgiven more easily for doing a terrible job on a case than he could ever be for sharing privileged information. Client communications are privileged. Period.
How serious is the duty of Attorney-Client confidentiality? If I were to represent a client and he fired me, I would be forbidden from turning over my file on the client to his new lawyer until I had confirmed that client's permission to do so. It is so serious that the confidentiality begins as soon as the potential client first tells a prospective lawyer the facts of his case -- even if that client doesn't hire that lawyer, privilege exists because of communication in anticipation of hiring a lawyer.
It is so serious that the duty of Attorney-Client confidentiality survives even if the client dies.
Attorney-Client confidentiality is one of the most basic tenets of being a lawyer.
It just is.
On Saturday, May 8, 2010, a woman named Janet McAfee was shot and killed by her husband, Ken McAfee. After killing his wife, Ken McAfee engaged in a 3 hour SWAT standoff before shooting himself in the jaw. He would survive the injury and be charged with Janet's murder.
In the days that followed, it would come to be revealed that Janet McAfee had been in the process of divorcing Ken. According to a Houston Chronicle article, she had filed for divorce in March 2010. In the same article, it is mentioned that at some point, Janet had attempted to become legal guardian of her husband, Ken. That information was shared with the Chronicle by Janet's former lawyer, Jack Ogg.
Now, right off the bat, there is something suspect about a murder victim's former attorney giving information to the press about the nature of his representation. In my opinion, that seems like a breach of Attorney-Client confidentiality right there. At least Ogg declines to state Janet's reasons for seeking the guardianship.
But it seems as if Ogg clearly violates Attorney-Client privilege when he begins telling unflattering information about his now-deceased former client:
"I've heard that there were threats on both sides," Ogg said. "But that's not unusual when people are going through marital problems."Okay, so you have a former client who was initiating legal action against her husband and said husband has now murdered your former client. What better time to start sharing with the press that she had been making threats toward her killer? This type of sharing is certainly not acting in the best interest of your client. As a matter of fact, you are actually beginning to act in the interest of the man who killed her.
So what does that have to do with Kim Ogg? Well, it gets worse. A lot worse.
Ken McAfee's murder case landed in the 339th District Court and although he was initially appointed counsel, attorney Gerald Fry comes in on the case as retained counsel on May 13th, 2010. On July 6, 2010, Fry files the below "Ex Parte Motion to Acquire Records," asking Judge Maria Jackson to order the Ogg Law Firm to turn over their file on their deceased former client, Janet McAfee.
Now, normally, this would be the kind of thing that any self-respecting attorney would go to war over. Like a journalist who would go to jail in contempt of court before revealing their sources, an attorney would proudly go to jail for contempt rather than ever allow their privileged Attorney-Client communication to be turned over.
Seriously, folks. This is a huge deal and I personally know at least two criminal defense attorneys who were willing to go to jail rather than turn over their files to another lawyer without the client's permission.
In this case, you have Gerald Fry, Ken McAfee's attorney, asking for the confidential information shared between the Ogg Law Firm (by and through its representative, Kim Ogg) and their former client Janet McAfee, the murder victim of Fry's client.
Don't get me wrong -- there is no harm in Gerald Fry trying to get their file. He just should have expected Kim Ogg -- Victim's Right Advocate and former CrimeStoppers head -- to tell him to go to Hell. Even if Judge Jackson were to grant Fry's request and order the file, any self-respecting lawyer who has ever represented a client (especially one that has been murdered) would go to jail before complying with that order.
Quite frankly, there probably would have been no chance on Earth that Judge Jackson would have ever granted Fry's Motion, if it hadn't been for the "Certificate of Conference" he included at the end of his motion.
Um, holy betrayal, Batman.
The reason that Gerald Fry was filing the Motion to Acquire records was because he had already spoken to Kim Ogg eight days earlier and she had told him that she had no objection to turning over her file on Janet McAfee.
Kim Ogg agreed to turn over a murder victim's confidential file to the attorney representing the victim's killer. She just needed a judge to sign off on an order to cover herself.
And the order was signed and the Ogg Law Firm turned over their Attorney-Client Privileged file to the Defendant's attorney. Whether you are the most hard core of prosecutors or the most hard core defense attorney, this breach of confidentiality is stunning and mortifying. The information in the file was damaging to the reputation of Janet McAfee, and the defense was absolutely not entitled to it. Neither was the prosecution.
Nobody was entitled to see the information in the Ogg Law Firm's file on Janet McAfee. Why? It was privileged.
To her credit, Judge Jackson quickly realized that the file on Janet McAfee was not Ogg's to give. She ordered the Defense to return the file almost immediately. Gerald Fry complied with that order.
But why did Kim Ogg ever think it would be okay to turn over the file in the first place? Kim Ogg is many things, but she isn't stupid.
I've learned from credible sources that despite the fact that Jack Ogg was not currently representing Janet McAfee at the time of her death, he had hopes of representing her estate in a wrongful death lawsuit against Ken McAfee. That would explain why he took to talking to the media so quickly after the murder. But Janet McAfee's family didn't want the Ogg Law Firm to represent the estate. Janet had gone to high school with a lawyer and her family wanted that classmate to be the lawyer on the wrongful death case.
Probably because that classmate was Kelly Siegler.
When the Ogg Law Firm learned that they wouldn't be handling any further legal matters on behalf of the late Janet McAfee, I guess they felt safe in giving their files and communications to her killer's attorney. It seems like a very spiteful move from where I'm sitting.
Earlier this year, Ken McAfee was convicted of murder and sentenced to life in prison.
No thanks to Kim Ogg -- who would really appreciate your vote for District Attorney.