Attorney Need Not Deliver Subpoenaed Transcript

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An attorney does not have to turn over the transcript of an interview with a son of his client, despite a grand jury subpoena, the Missouri Supreme Court ruled unanimously.

In a 6-0 decision, the state's high court ruled that the jury failed to show substantial need to have the transcript turned over and that the transcript is a product of attorney-client privilege.

The attorney, John Rogers, was representing a client who was a person of interest in the disappearance of the client's son. The client claimed his vehicle was stolen from a parking lot while his son, a 10-year-old with disabilities, was inside. The vehicle was later found, but the child's whereabouts remain a mystery. Rogers took the statement from his client's older son, while representing the client.

After receiving the subpoena, Rogers filed a motion to quash because he claimed it was an attorney work product and that it would be unreasonable and oppressive to release it.

The circuit court found that the transcript was not an attorney work product because it did not contain the attorney's opinions, theories or conclusions.
Because Missouri defines work product in criminal procedure only in regard to the attorney's opinions, theories or conclusions, the Missouri Supreme Court found that because grand jury proceedings do not take place before an indictment is filed, the discovery rules for criminal proceedings do not apply.
"Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients," Judge Patricia Breckenridge wrote. "In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. ... Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served."


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