Nester v. Jernigan
| Docket Number: | 2004-IA-00704-SCT | |
| Supreme Court: |
Opinion Date: 08-04-2005 Opinion Author: DICKINSON, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Slander - Attorney-client privilege - M.R.E. 502 Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson, Graves and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Bench Trial Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 03-05-2004 Appealed from: Forrest County Circuit Court Judge: Robert Goza, Jr. Disposition: Trial Court required Nester to provide certain information in discovery Case Number: CI97-0219 |
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| Note: | Nature of Case - Slander | |
| Party Name: | Attorney Name: | |||
| Appellant: | KATHRYN N. NESTER |
FELECIA PERKINS |
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| Appellee: | JAY JERNIGAN | PRO SE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Slander - Attorney-client privilege - M.R.E. 502 |
| Summary of the Facts: | Attorney Kathryn Nester represented Greg Alston, one of four defendants in a criminal case in Forrest County Circuit Court. During a hearing on various motions, Nester informed the trial judge that she had filed a motion to compel production of the psychiatric or psychological records of one of the State’s witnesses. Nester requested that she be allowed to discuss the motion at the bench. The trial judge refused the request and required Nester to announce her motion in open court. She then stated that it was her understanding that one of the State’s witnesses is or has been at some point on psychiatric medication. The judge asked her specifically about whom she was talking and she indicated that it was Jay Jernigan. Jernigan then filed a suit against Nester for slander, and he served discovery requests for the identity of the person who supplied her the information that Jernigan may have been on psychiatric medication. Nester moved to dismiss, asserting that her statements in court were privileged and that she was protected by immunity. Jernigan filed a motion to compel responses to the discovery requests which the court granted. The trial court granted Nester’s permission to file an interlocutory appeal, and the Supreme Court granted Nester permission to bring this interlocutory appeal. |
| Summary of Opinion Analysis: | The attorney-client privilege under M.R.E. 502 relates to and covers all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client. Included are communications made by the client to the attorney and by the attorney to the client. The identity of a client is not generally protected by the attorney-client privilege. The Fifth Circuit has recognized a narrow exception to this general rule when revealing the identity of the client would itself reveal a confidential communication. According to Nester, requiring her to respond to Jernigan’s discovery requests would be tantamount to forcing her to reveal both a confidential communication and the identity of her client. Jernigan argues that neither Nester nor her client can assert the privilege solely to protect the client’s identity. The transcript of the hearing confirms that Nester revealed neither her client’s identity nor the communication between them. Rather, she received information from her client which prompted her to file the motion to compel the production of certain records which she believed would aid her client’s defense. Nester was doing no more than what lawyers frequently do. Nester’s attempts to pursue the motion at the bench – without fanfare – were reasonable, are commendable, and belie any claim that she had a hidden agenda. The information or communication Nester received from her client is privileged. Much of what an attorney does in investigating and pursuing a claim for a client is based on unsubstantiated information received from the client. The trial court may not compel Nester to disclose either the identity of, or communication from, her client. |
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