Beware of Unguarded Talk: A Cautionary Tale of Privilege Waiver in Wisconsin

Loose lips sink ships.

And, at least according to the Wisconsin Court of Appeals, they can sink the protections afforded to privileged communications.

A decision last week in a criminal case could have considerable effect on a client’s waiver of the attorney-client privilege, in civil as well as criminal cases.

In State v. Schmidt, No. 2015AP457, in an opinion by Judge Thomas Hruz, the court ventured into the mostly uncharted territory of interpreting the language of § 905.11 of the Wisconsin Statutes, which provides for waiver of any evidentiary privilege when its holder voluntarily discloses “any significant part” of the privileged matter. The Court gave a broad reading to what constitutes disclosure of a “significant part” of a privileged communication.

The relevant facts are that Daniel Schmidt was charged with first-degree intentional homicide for the deaths of Kimberly Rose and her brother. Schmidt had had an extramarital affair with Rose. At trial, the prosecution elicited testimony from Schmidt’s wife that, five days before the murders, Schmidt told her that he wanted “to shoot [Rose], then [himself].” The jury convicted Schmidt.

Schmidt argued on appeal that the circuit court had improperly concluded that he waived the marital privilege. The court had concluded that he waived the privilege with respect to the statement to his wife by subsequently explaining to police investigators that he had, in fact, told her that he wanted to kill himself. Schmidt argued that, because he only admitted to stating that he wanted to kill himself, while omitting the portion of his statement conveying his desire “to shoot [Rose],” he did not voluntarily disclose “any significant part of the matter or communication” about killing Rose. Thus, Schmidt maintained, the marital privilege still protected that part of the communication.

The Court of Appeals surveyed a barren landscape of Wisconsin case law delineating what constitutes the voluntary disclosure of a “significant part” of an otherwise privileged communication. While no case squarely addressed that question, the court, relying on the plain language of the rule, held that Schmidt’s disclosure to the police of only part of his statement to his wife amounted to a waiver of privilege as to the entire statement: “The controlling principle of waiver is the privilege holder’s voluntary disclosure of ‘any significant part’ of the matter or communication.” ¶ 50.

The court held that the statement about wanting to kill himself was a significant part of the overall statement to his wife because “[b]oth parts of the communication involved him killing someone[,]” the statement contained a sequencing element (i.e., “Schmidt wanted to first kill Rose, then kill himself”), and both parts related to the affair and corresponding marital difficulties that were central to the case. Thus, the two parts of the communication were not as easily separated as Schmidt contended. ¶ 51.

The court further held that § 905.11 does not impose a requirement that the “significant part” disclosed must be “the portion of the matter or communication that is most incriminating or otherwise harmful to the privilege holder.” ¶ 52. Instead, because § 905.11 simply requires the voluntary disclosure of any significant part, the court held that the legislature clearly contemplated communications with several significant parts—not just one “most” significant part. [In fact, it was the Supreme Court, not the legislature, that adopted § 905.11, along with the other rules of evidence, in 1973.]

As noted, § 905.11’s waiver rule is not limited to issues of marital privilege or disclosures to police investigators, but applies to voluntary disclosures of all privileged matters or communications—including communications protected by the attorney-client privilege. In the wake of the Schmidt, attorneys should instruct clients to maintain the confidentiality of privileged communications in their entirety. As Schmidt demonstrates, disclosing seemingly innocuous portions of a privileged communication may lead to a far-reaching waiver.