“Were you still working at Leggitt & Freeman when you began representing Mrs. Rena Richardson?” he asked.
“Yes, the Richardson family has been a client of Leggitt & Freeman for many years. Mr. Leggitt sent me to Greenville after Ms. Richardson’s husband was critically injured. There were questions about a durable power of attorney and health-care power of attorney signed by Baxter Richardson that affected decisions about his medical care.”
“Who is Baxter Richardson?”
“Rena Richardson’s husband.”
“During this time in Greenville, what contact did you have with Rena Richardson?”
“I saw her at the hospital and helped mediate several sessions involving Rena Richardson, the physicians treating Baxter, and Ezra Richardson, Rena’s father-in-law.”
“Please describe for the judge the formation of the attorney-client relationship between yourself and Rena Richardson.”
“At first, it was my goal to assist the entire Richardson family. However,—”
Movement over Sean’s shoulder caught Alexia’s eye. The back door opened, and a short man with a familiar disfiguring scar entered the courtroom. Detective Giles Porter walked up the aisle and took a seat on the bench behind Rena, who continued to look forward, unaware of his presence. Sean followed Alexia’s gaze and quickly glanced over his shoulder. Alexia shifted in the chair before continuing.
“It became obvious that a conflict of interest existed between Ms. Richardson and her father-in-law regarding control of medical and property issues. Ms. Richardson had a clear, reasonable expectation that an attorney-client relationship existed between us—”
“Objection, Your Honor,” Graham said, rising to his feet. “Ms. Richardson’s internal thought processes are outside the scope of this witness’s knowledge.”
“Sustained,” the judge replied before Sean could respond.
Alexia glanced again at Porter, who sat impassively behind Rena. He was wearing the same brown suit he’d worn when he appeared at the hearing to terminate Baxter’s life support.
“What discussions establishing the attorney-client relationship did you have with Mrs. Richardson?” Sean asked.
“First, she shared information with me that she considered confidential—”
“Objection, hearsay,” Graham interrupted.
The judge looked at Sean. “Is Ms. Richardson going to testify?”
“She’s here in the courtroom and available if necessary.”
Alexia saw fear flash across Rena’s face.
“You may present your proof however you like, Mr. Pruitt,” the judge responded, “but I’m going to sustain the hearsay objection.”
Sean didn’t immediately retreat. “Your Honor, the attorney-client relationship is a bilateral agreement. It would not be hearsay for Ms. Lindale to explain the basis upon which her side of the contract of representation was formed.”
“That’s not what I hear you asking,” the judge replied. “Mr. Graham is correct. You’re asking her to read Ms. Richardson’s mind.”
“May I rephrase the question?” Sean asked.
The judge looked down his nose at Alexia. “Did Ms. Richardson sign a contract of representation at the time you’re referring to?”
“No sir. That took place later in Santee.”
Sean continued, “But it’s not essential that the contract be formalized in a written document so long as confidential information is shared for the purpose of obtaining legal advice.”
“Maybe not, but I’m going to need more than supposition if you expect me to seriously consider your motion.” The judge waved his hand. “Move on to something relevant.”
Sean stepped back to the table and picked up a stack of papers. After they were marked by the court reporter, he furnished a copy to the solicitor and handed the originals to Alexia.
“Could you please identify those documents?”
“These are my billing records. The oldest ones are from Leggitt & Freeman and explicitly state that Rena Richardson is the client. After I left the firm, all bills were sent to Ms. Richardson from my office. Over half of the charges in this stack represent work performed weeks before Officer Dixon’s death. I’ve represented her on other matters, primarily related to her husband’s condition.”
“Did she seek your legal advice and counsel after Officer Dixon’s death?”
“Yes. She asked me to be with her when Detective Devereaux from the Charleston County Sheriff ’s Office interviewed her in Santee about the circumstances related to her car.”
“Please identify the bill for your services on that date.”
Alexia turned to the sheet and marked the entry with a yellow high-lighter.
“This is it,” she said. “It states, ‘Conference with client and Detective Devereaux at client’s residence. 1.5 hours.’”
“How else do your records support the existence of an attorney-client relationship between yourself and Mrs. Richardson as to any inquiry into Officer Dixon’s death?”
“I made phone calls to the Charleston County Sheriff ’s Office and wrote a follow-up letter to Detective Devereaux in which I identified myself as Ms. Richardson’s attorney.”
Sean returned to the table and picked up the phone records. He handed a copy to Graham. “First, the phone records. Please identify pertinent sections for the judge.”
Alexia walked the Court through tedious but irrefutable evidence, grateful that many a legal case has been won or lost based on a telephone bill. Interested only in documenting information to justify charges, the phone company keeps records with consistent impartiality. After the bills were admitted into evidence, Sean handed Alexia a copy of the letter she’d sent to the Charleston County Sheriff ’s Office.
“Please identify this document.”
“This is a letter I sent to Detective Byron Devereaux confirming information about our meeting with Ms. Richardson. As you can tell from the first line, I identified myself as Rena Richardson’s attorney. The letter goes on to state—”
“I can read the letter,” the judge interrupted. “It’s admitted into evidence as a business record. Hand it up to me.”
Sean took the letter from Alexia and passed it to the judge before continuing.
“At what point did you begin furnishing legal advice to Mrs. Richardson about the circumstances associated with Officer Dixon’s death?” Sean asked.
“On the same day it occurred.”
“When did you stop giving her legal advice about this matter?”
“I haven’t. Even after she retained you, I have continued to provide representation.”
“Do you have a written contract of representation with Mrs. Richardson?”
“Yes, and a letter that sets the amount of retainer required. My standard practice is to bill against a retainer.”
Alexia hoped to make it through this sticky point unscathed. The attorney-fee agreement Rena signed was general, not specific, and it didn’t mention representation in any criminal case prior to the date Alexia received the videotape. Sean handed Alexia a copy of the agreement.
“Is this the agreement?”
“Yes.”
“What services did you provide to Mrs. Richardson after she signed this agreement?”
Alexia counted off the items with her fingers. “I assisted her in decisions affecting her husband’s medical care, discussed legal issues related to her father-in-law, answered questions posed to her by a detective from Mitchell County, advised her about personal domestic matters, and counseled her regarding the situation we’re here about today.”
Alexia looked at Giles Porter as she spoke. Rena still hadn’t noticed her nemesis.
“How did you come to possess the videotape described in the subpoena?”
“Ms. Richardson gave it to me because she had questions about its legal significance. I viewed the tape with her and kept it for further evaluation.”
“What was your understanding of the reason for Mrs. Richardson’s de
cision to entrust the videotape to you?”
“She did so only after I assured her that I would keep it confidential.”
“Why did you refuse to deliver the videotape to the officer who served the subpoena?”
“Because my client gave it to me based on the fact that I am one of her lawyers. I could not obey the subpoena without violating my client’s Sixth Amendment right to counsel and the South Carolina ethical rule protecting privileged information shared by a client with an attorney.”
“I’ll be the one to decide if that’s the case,” Judge Moreau said.
“Yes sir,” Alexia replied.
Alexia knew that Sean had intended his question, not the judge’s comment, to be the final direct testimony offered by her. He stood still for a second. Alexia knew he was trying to decide if another question was necessary to end on a strong note.
“That’s all from this witness,” he said.
The judge looked toward Assistant Solicitor Graham.
“You may ask, Mr. Graham.”
Younger than Alexia, Joe Graham had shaggy brown hair, uncharacteristic for a prosecutor, and wore wrinkled slacks. Top law-school graduates did not generally seek assistant-solicitor positions, known for low compensation and miniscule raises. It was a great job, however, for a young lawyer who wanted to gain trial experience as rapidly as possible. After a few years in the trenches, most assistant solicitors migrated to firms where their courtroom skills commanded a much higher salary. Others who harbored political ambitions that could be advanced by the publicity available to a prosecutor remained in the solicitor’s office. Joe Graham didn’t look like judicial material.
“Ms. Lindale, does your client own a red convertible?”
“She did. I believe it was recently sold.”
“Did she still own it on the date of Officer Dixon’s death?”
“Yes.”
“Did she ever notify the Santee police department that the red convertible had been stolen?”
“That’s my understanding.”
“Was the vehicle, in fact, stolen?”
“Any conversation I had with her about the status of the car was related to my legal representation of her.”
Sean was on his feet. “And protected by the attorney-client privilege, Your Honor. We object to this line of questioning.”
The judge scowled at Sean. Alexia sat completely still. Graham had started with questions she’d not expected until later in his cross-examination.
“I’m going to sustain the objection at this time, but I may allow you to bring it back up, Mr. Graham.”
Graham didn’t appear upset by the judge’s ruling, and Alexia breathed a sigh of relief. He picked up the attorney-fee agreement signed by Rena and handed it to Alexia.
“Please point out the specific language in this agreement that states you are representing Ms. Richardson in a criminal investigation in Charleston County.”
“That is covered by the words ‘general representation,’ which includes any legal matters, civil or criminal.”
“Are you telling Judge Moreau that based on this agreement you would be willing to represent Ms. Richardson in any conceivable type of case?”
“Unless something came up outside my area of expertise.”
“Antitrust, patent infringement, estate planning? Are these covered?”
“Not specifically, but I could have at least pointed her in the right direction for any type of legal work.”
The assistant solicitor held up the fee agreement in his hand. “Is the language contained in this agreement identical to contracts signed by clients who specifically retained you in the past to represent them in criminal cases?”
“No,” Alexia admitted.
“How is it different?”
“Well, usually, the agreement identified the nature of the charges and the fee for my representation. In this case, representation began before Officer Dixon’s death, and my advice and counsel flowed out of my ongoing legal assistance to her.”
“But the agreement is completely silent about legal representation for criminal charges in the past, present, and future, isn’t it?”
“Except for the general-representation language.”
Alexia realized she shared with Graham an unwillingness to leave an issue until scoring a point by attacking it in slightly different ways. The next questions did not surprise her.
“And you referred Ms. Richardson to Mr. Pruitt to represent her in any criminal investigation, didn’t you?”
“But I remained cocounsel.”
Graham’s voice grew louder. “As a subterfuge, because you never legitimately undertook representation of Ms. Richardson in this matter but merely wanted to manufacture a way to block a grand-jury investigation into a police officer’s death.”
Alexia didn’t answer. It wasn’t a question.
“Isn’t that what’s really going on today, Ms. Lindale?” Graham persisted.
“Objection, argumentative,” Sean said.
“Overruled.”
“No,” Alexia said. “Ms. Richardson is my client, and she has repeatedly shared information with me as her attorney in confidence for the purpose of obtaining legal advice.”
“So, am I correct in stating that your discussions with Ms. Richardson about the contents of the videotape fall within the attorney-client privilege?”
Alexia hesitated. She didn’t want to agree with anything the prosecutor said but couldn’t see a way to deny the statement.
“Yes, that’s partially correct.”
“What part is incorrect?”
Immediately, Alexia wished she’d simply agreed. She’d fallen for the old trick of refusing to admit the obvious as a way to discredit a witness.
“I can agree with your statement.”
“Without reservation?”
“Yes.”
Graham looked down at the legal pad in his hand.
“Does the videotape contain confidential communications between yourself and Ms. Richardson?”
“What do you mean?”
“Are you talking with Ms. Richardson on the tape?”
“No.”
“Then shouldn’t the discussions about the videotape be protected from grand-jury investigation rather than the videotape itself?”
Alexia glanced at Sean, who stood up when she caught his eye.
“Objection, Your Honor. You will be the one to decide that issue.”
“Overruled. I’d like to know what Ms. Lindale thinks, since she’s the one asserting the privilege.”
Sean sat down. Alexia was on her own.
“No, because the videotape was entrusted to me by my client as part of a confidential communication, just as occurs with a document or other type of record.”
“Has Ms. Richardson discussed the videotape with anyone else besides yourself and Mr. Pruitt?”
Alexia felt her stomach sink.
“Not in my presence,” she answered.
“What about outside your presence? Has she mentioned discussing it with another attorney?”
“Only Mr. Pruitt.”
“Then who else is in the circle of information?”
“She told me as part of a confidential communication.”
Judge Moreau’s voice boomed from the bench before Graham could say anything else.
“Answer the question! If your client has discussed this matter with another person, it may waive her right to assert the attorney-client privilege now.”
Alexia was aware of the rule. She glanced at Sean, who wore his attorney game face in an effort to appear impervious to bad news. Alexia looked up at Judge Moreau.
“With her brother-in-law, Your Honor.”
“And what is his name?” Graham asked.
“Jeffrey Richardson.”
“Does he live in the Santee area?”
“Yes.”
“Where does he work?”
“With his father at Richardson and Company.”
A shar
p cry caused everyone in the courtroom to suddenly look toward the seating area. Rena was running from the courtroom. Alexia watched her retreating form. Giles Porter shrugged and rubbed the side of his face with a stubby finger.
“What’s the basis for this commotion?” the judge asked sharply.
Alexia was about to answer when she saw Sean stand up.
“Mrs. Richardson had to leave the courtroom. I’m not sure why and apologize for the interruption.”
“Do you want to proceed without her?” the judge asked.
Sean looked at Alexia, who nodded. Rena could not exist in the same confined space with the Mitchell County detective.
“Yes sir.”
“Very well. You may ask, Mr. Graham,” the judge said.
“Has your client discussed the contents of the videotape with anyone else besides her lawyers and brother-in-law?”
“Not to my knowledge.”
Graham flipped over another sheet of his legal pad.
“Ms. Lindale, isn’t it also true that documentation indicating the occurrence of future fraud or criminal activity is not protected by the attorney-client privilege?”
Alexia would not be trapped again by failing to admit the truth.
“Yes, but the tape does not contain information of future fraud or criminal activity.”
“That’s your opinion, but how can the grand jury make a determination without seeing the tape?”
Sean stood up. “Judge, I object to this line of questioning. It would be the Court’s prerogative to review the tape in private in order to make that decision.”
“Which is where this hearing is going regardless of any further testimony,” the judge replied.
Graham stepped away from the witness stand. “That’s all I have, Your Honor.”
Alexia returned to her seat at the counsel table.
The judge looked at Sean. “Do you have any other witnesses?”
Sean answered without consulting Alexia. “No sir. We will not be calling Mrs. Richardson to the stand.”
“Where is the videotape?” the judge asked.
“Ms. Lindale has it in her briefcase.”
“Hand it up,” the judge ordered.
Alexia opened her briefcase and gave the tape to Sean, who stepped forward and gave it to the judge.
“How long is the tape?” the judge asked.
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