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

18 May 2016 Wisconsin Appellate Law Blog

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.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights

Lacktman, Ferrante Cited in mHealth Intelligence About Ryan Haight Act
19 September 2019
mHealth Intelligence
Vernaglia Comments on AHA v Azar Decision
18 September 2019
MedPage Today
Tinnen Discusses How Viewpoint Diversity Helps Businesses Thrive
18 September 2019
InsideTrack
Lach Comments on Launch of New Group
16 September 2019
BizTimes Milwaukee
MedTech Impact Expo & Conference
13-15 December 2019
Las Vegas, NV
Review of 2020 Medicare Changes for Telehealth
11 December 2019
Member Call
BRG Healthcare Leadership Conference
06 December 2019
Washington, D.C.
CTeL Telehealth Fall Summit 2019
04-06 December 2019
Washington, D.C.