State of Louisiana Versus Blaise Gravois

STATE OF LOUISIANA NO. 22-K-267

VERSUS FIFTH CIRCUIT

BLAISE GRAVOIS COURT OF APPEAL

STATE OF LOUISIANA

June 23, 2022

Susan Buchholz
First Deputy Clerk

IN RE BLAISE GRAVOIS

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT,
PARISH OF ST. JAMES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
KATHERINE TESS STROMBERG, DIVISION "C", NUMBER 84,79

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Robert A. Chaisson

WRIT GRANTED, IN PART; WRIT DENIED, IN PART; STAY
DENIED

Relator, Blaise Gravois, seeks expedited review and requests a stay of
execution of the district court’s June 2, 2022 ruling denying, in part, his motion to
quash a subpoena issued by the State in connection with this criminal case and
requiring relator to disclose to the State certain materials—including engagement
letters and billing invoices. For the following reasons, we grant relator’s writ in
part; deny the writ in part; and deny the request for a stay.

On September 8, 2020, relator, Mr. Gravois, the former director of
operations for the Parish of St. James, was charged by bill of information with five
counts of malfeasance in office for allegedly misappropriating Parish assets.1 On
January 7, 2022, the State filed a motion for the district court to determine if Mr.
Gravois’s Sixth Amendment right to conflict-free counsel has been violated on the
basis that his lead counsel, Matthew Chester, and associate counsel, Emily Kessler,
of the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. (the
“Firm”) have an actual conflict of interest in its representation of Mr. Gravois in
this criminal matter. The State alleges that a “conflict” exists because the Firm has
taken on the dual role of representing Mr. Gravois for the criminal charges brought
against him, as well as representing him in a civil matter demanding insurance
proceeds from St. James Parish Government’s insurer, Berkley Insurance
Company, who provides coverage for the payment of public employees’ criminal

1
The bill of information was filed after a previous grand jury indictment based on the same facts
was quashed without prejudice on March 11, 2020, as a result of grand jury secrecy violations.

22-K-267

attorneys’ fees, if the criminal matter is dismissed with prejudice or the defendant
employee is found not guilty after trial.2

On May 23, 2022, the district court held a status conference, setting hearing
dates for pending pre-trial motions. In connection with its conflict motion, the
State indicated at the status conference that it would be seeking a subpoena duces
tecum for issuance to the “custodian of records” for the Firm, seeking (1) all
retainer agreements between Gravois and lawyers at the Firm related to criminal
cases, civil claims for payment of attorneys’ fees, and claims against Berkley
Insurance Company; (2) billing records related to criminal proceedings against
Gravois and claims against Berkley Insurance Company; and (3) any and all
correspondence between the Firm and various attorneys and firms, who may have
represented Berkley Insurance Company as it relates to Mr. Gravois’ payment,
recovery, or collection of criminal attorney’s fees. The district court signed the
subpoena duces tecum.

Mr. Gravois filed a motion to quash the State’s subpoena duces tecum on
grounds that the State failed to make a prima facie showing of a conflict. Mr.
Gravois denied there was a contingency fee arrangement between him and the
Firm. He maintained that the State conceded it had no evidence and now seeks
production of the privileged records to support its conjecture. Mr. Gravois asserted
that the State failed to include correspondence to the St. James Parish Council,
which showed monthly invoices from the Firm based on hourly rates in differing
amounts. Mr. Gravois denied that his counsel represents him in connection with
his claims against the Parish Council’s insurer. Also, Mr. Gravois argued that the
State’s request for records concerning engagement letters and/or billing records
should be rejected because it seeks documents and information protected from
disclosure by the attorney-client privilege and/or work product protections. He
asserted that some of the requested information would reveal the work performed
by counsel, strategies pursued by counsel, and the nature of services rendered by
counsel.

In its opposition to Mr. Gravois’ motion to quash, the State averred the
billing records related to Mr. Gravois’ criminal defense are not subject to the
attorney-client privilege citing In re Lavie, 00-2753 (La. 10/5/00), 772 So.2d 77.
The State argued that the issue in this case is not necessarily the manner in which
the Firm billed Mr. Gravois, but rather, the payment of the fees incurred.
According to the State, Mr. Gravois’ fees have not been paid because payment is
contingent on recovery from either the Berkley insurance policy or a St. James
Parish ordinance providing for reimbursement of attorneys’ fees for criminal
defendant employees should they be acquitted or the criminal matter against them
is dismissed with prejudice. The State argued that a conflict of loyalty has arisen
triggering the exception to the attorney-client privilege found in La. C.E. art.
506(C)(3).3
2
The State has alleged that an independent lawyer should be appointed because Mr. Chester has
consistently and erroneously advised Mr. Gravois of an incorrect element of the charged crime, rebuffed
any cooperation by Mr. Gravois with the State, and rejected a misdemeanor plea for Mr. Gravois.
3
Under Rule 1.5(d)(2) of the Louisiana Rules of Professional Conduct, a lawyer is prohibited from
entering into a contingency fee arrangement for representation of a defendant in a criminal case. Here,
the State contends there is a potential conflict of interest between the Firm and Mr. Gravois due to the
alleged contingency fee arrangement existing between them which could give rise to an actual conflict of
interest. Additionally, the State contends the Firm has breached its duty to provide conflict-free
representation in violation of Mr. Gravois’ Sixth Amendment rights and the Rules of Professional
Conduct 1.7(a) due to an actual conflict of interest that prohibits the Firm from rendering effective legal
assistance to Mr. Gravois.
2

Mr. Gravois’ motion to quash the State’s subpoena duces tecum came for
hearing on May 31, 2022, and, after hearing argument from counsel, the district
court took the matter under advisement. On June 2, 2022, the district court issued
a judgment with written reasons, granting Mr. Gravois’ motion to quash in part and
denying the motion in part. Mr. Gravois now seeks this Court’s review of the
district court’s judgment.

In ruling on Gravois’ motion to quash, the district court considered and ruled
as follows:

(1) Whether the State has made a showing that a potential conflict of
interest exists:
Based on its review of the exhibits attached to the State’s motion for the
district court to determine if Mr. Gravois’ Sixth Amendment right to conflict-free
counsel has been violated, the district court determined that the State’s allegations
of a potential conflict of interest between Mr. Gravois and his chosen counsel in
this criminal matter were not based on pure conjecture. Having concluded that the
State adequately established the possibility of a conflict of interest exists affecting
Mr. Gravois’ Sixth Amendment rights, the district court determined that it must
now decide whether separate counsel must be appointed for Mr. Gravois or
whether the potential risk of a conflict of interest is too remote to warrant separate
counsel. Further, the district court concluded that having been alerted to the
possibility of a conflict of interest, it must conduct an evidentiary hearing to
ascertain the existence and nature of the conflict, and to determine if Gravois’
Sixth Amendment right to conflict-free counsel has been violated, which warrants
discovery. See Holloway v. Arkansas, 435 U.S. 475, 484 S.Ct. 1173, 55 L.Ed.2d
426 (1978).4 Therefore, the district court denied Mr. Gravois’ motion to quash the
entire subpoena duces tecum.

(2) Whether the retainer agreements between Mr. Gravois and Mr.
Chester, the Firm, and Kerry Miller are privileged:
The district court determined that any contracts or engagement letters
responsive to numbers 1-4 in the State’s subpoena duces tecum5 are relevant to the
State’s conflict motion regarding Mr. Gravois’ Sixth Amendment rights, and are
excepted from the attorney-client privilege under La. C.E. art. 506(C)(3).
Consequently, the district court denied Mr. Gravois’ motion to quash as it relates to
number 1-4, and ordered him to produce to the State any retainer agreements
between Mr. Gravois and the Firm.

(3) Whether the billing records related to criminal proceedings against Mr.
Gravois and claims against Berkley Insurance Company are privileged:

4
See also State v. Cisco, 01-2732 (La. 12/3/03), 861 So.2d 118, 132, cert. denied, 541 U.S. 1005,
124 S.Ct. 2023, 158 L.Ed.2d 522 (2004).
5
Items 1 through 4 of the State’s subpoena duces tecum request production of any retainer
agreements between Mr. Gravois and Firm related to (1) all pending criminal cases; (2) any civil claim for
payment of criminal attorney fees; (3) any claim for payment of attorney fees against Berkley Insurance
Company; and (4) any claim for payment of attorney fees against St. James Parish Government.

3

The district court determined that the billing records requested in numbers 5
through 7 of the State’s subpoena duces tecum6 are also not privileged under the
exception in La. C.E. art. 503(C)(3) and should be produced to the State. The
district court ordered that the records are to be produced after redacting and/or
excising all references to the nature of services, the reasons for seeking legal
advice, strategies pursued by counsel in anticipation of ongoing litigation, as well
as any mental impressions, conclusions, opinions, and legal theories of an attorney.

(4) Whether the State has demonstrated the relevance of the written
correspondence between the Firm and various attorneys and firms who
may have represented Berkley Insurance Company as it relates to Mr.
Gravois’ payment, recovery, or collection of criminal attorney’s fees:
Insofar as the documents requested by the State in items 8 through 14 of its
subpoena duces tecum,7 the district court granted Mr. Gravois’ motion to quash
production of those documents on the basis that the State failed to demonstrate
how the correspondence between Mr. Gravois’ counsel and third parties would be
relevant to demonstrating an irreconcilable conflict of interest.

In the instant writ application, Mr. Gravois’ counsel argues that the district
court erred in concluding that the State’s alleged “conflict” theory is more than
pure speculation and conjecture as it “is factually untrue, and is devoid of any legal
support whatsoever.” Further, Mr. Gravois argues the district court erred in
“ordering the production of privileged and confidential materials, including
engagement letters and partially-redacted billing invoices, on the basis of an
exception to the [attorney-client] privilege that has never been applied in
circumstances like those presented by this case.” According to Mr. Gravois, the
district court’s ruling has the potential to irreparably harm the attorney-client
privilege, the integrity of the proceedings, and the privilege itself.

At the hearing, the judge specifically asked defense counsel whether the
Firm engaged and agreed to represent Mr. Gravois in this criminal matter on a
contingency fee basis or an hourly basis. In response, defense counsel stated, as an
officer of the court, that the Firm is representing Mr. Gravois on an hourly basis
and that regardless of whether Mr. Gravois is convicted or acquitted, or the case is
dismissed with or without prejudice, he is responsible for paying the Firm the
attorneys’ fees that he has incurred. In other words, defense counsel represented to
the district court that payment of the attorneys’ fees Mr. Gravois has incurred is not
contingent on anything. Defense counsel urges here that simply because the
incurred fees may ultimately be paid in whole or in part by a third party, such as
Berkley Insurance Company or a former employer, under certain conditions, does
not transform the hourly billing arrangement between Mr. Gravois and the Firm
into a contingency fee arrangement. Consequently, defense counsel argues the
6
Items 5 through 7 of the State’s subpoena duces tecum request production of all billing records
for the Firm’s representation of Gravois in (5) all criminal proceedings in the Twenty-Third Judicial
District Court Parish of St. James; (6) all claims against Berkley Insurance Company for the payment of
any and all fees arising out of criminal charges out of the Twenty-Third District Court Parish of St.
James; (7) all criminal proceedings from the Parish of St. James.
7
Item 8 of the State’s subpoena duces tecum requests production of any and all correspondence
between the Firm and various other law firms and attorneys concerning payment, recovery, and/or
collection of criminal attorney’s fees on behalf of Mr. Gravois. Items 9 through 14 of the subpoena duces
tecum request production of any and all correspondence between the Firm and the St. James Parish
Council members concerning payment, recovery, and/or collection of Mr. Gravois’ criminal attorneys’
fees, and/or the drafting of, and/or the adoption of any ordinance for the payment for criminal attorney
fees for Mr. Gravois or any other person on behalf of Mr. Gravois or any other public official.
4

district court erred in ordering the Firm to produce privileged information relative
to its relationship with Mr. Gravois to assist the State to prove the existence of a
“conflict”.

To the extent the documents the district court ordered Mr. Gravois and the
Firm to produce violate a privilege that was not waived, we agree with Mr. Gravois
that the trial court erred.

Article 732 of the Louisiana Code of Criminal Procedure governs the
issuance of a subpoena duces tecum and provides:

A subpoena may order a person to produce at the trial or
hearing, books, papers, documents, or any other tangible
things in his possession or under his control, if a
reasonably accurate description thereof is given; but the
court shall vacate or modify the subpoena if it is
unreasonable or oppressive.

Generally, parties may obtain discovery regarding any matter which is
relevant to the subject matter involved in the pending litigation, however,
discovery of privileged information, including confidential communications
between a client and his lawyer, or records protected from disclosure by attorney-
work product protections is not allowed. See La. C.C.P. art. 1422. La. C.E. art.
506 codifies the attorney-client privilege in Louisiana and it states, in pertinent
part:

A. Definitions. As used in this Article:

(1) “Client” is a person … to whom professional legal
services are rendered by a lawyer, or who consults a
lawyer with a view to obtaining professional legal
services from the lawyer.
(2) “Representative of the client” is:
(a) A person having authority to obtain professional legal
services, or to act on advise so obtained, on behalf of the
client.
…
(3) “Lawyer” is a person authorized, or reasonably believed
by the client to be authorized, to practice law in any state
or nation.
(4) “Representative of the lawyer” is a person engaged by
the lawyer to assist the lawyer in the lawyer’s rendition
of professional legal services.
(5) A communication is “confidential” if it is not intended to
be disclosed to persons other than:
(a) Those to whom disclosure is made in furtherance of
obtaining or rendering professional legal services for the
client.
(b) Those reasonably necessary for the transmission of the
communication.
…

5

B. General rule of privilege. A client has a privilege to
refuse to disclose, and to prevent another person from
disclosing, a confidential communication, whether oral,
written, or otherwise, made for the purpose of facilitating
the rendition of professional legal services to the client,
as well as the perceptions, observations, and the like, of
the mental, emotional, or physical condition of the client
in connection with such a communication, when the
communication is:
(1) Between the client or a representative of the client and
the client’s lawyer or a representative of the lawyer.
(2) Between the lawyer and a representative of the lawyer.
(3) By the client or his lawyer, or a representative of either,
to a lawyer, who represents another party concerning a
matter of common interest.
(4) Between representatives of the client or between the
client and a representative of the client.
(5) Among lawyers and their representatives representing the
same client.
(6) Between representatives of the client’s lawyer.
C. Exceptions. There is no privilege under this Article as to
a communication:
…
(3) Which is relevant to an issue of breach of duty by a
lawyer to the client or by a client to the client’s lawyer.
D. Who may claim privilege. The privilege may be
claimed by the client, the client’s agent or legal
representative, or the successor, trustee, or similar
representative of a client that is a corporation, partnership,
unincorporated association, or other organization. The
person who was the lawyer or the lawyer’s representative at
the time of the communication is presumed to have authority
to claim the privilege on behalf of the client, former client,
or deceased client.

Here, the State argued—and the district court agreed—that the privileged
documents it seeks to have Mr. Gravois and the Firm produce are not protected
from discovery under the exception to the attorney-client privilege found in La.
C.E. art. 506(C)(3) as “they relate to an alleged breach of [Mr. Gravois’] criminal
attorney’s duties under Rule of Professional Conduct 1.5(d).” We disagree and
hold that La. C.E. art. 506(C)(3) does not apply to exempt the requested documents
from the protection of the privilege under the facts presented by this case. The
State fails to allege the most essential element of its assertion that the requested
documents are excepted from the attorney-client privilege—that is, that the State, a
third party, has standing to claim the privilege under La. C.E. art. 506(D) or to
claim applicability of the exception to the privilege under La. C.E. art. 506(C)(3).
A clear reading of La. C.E. 506 et seq. reveals that it relates solely to the “Lawyer-
client privilege.” Nowhere in La. C.E. 506 does it provide authority for a third
party, such as the State, to obtain privileged documents by asserting applicability
of an exception of the attorney-client privilege. The trial court erred in concluding
otherwise.

6

The attorney-client privilege, one of the oldest and most venerated of the
common law privileges of confidential communications, serves important interest
in our judicial system. See Upjohn Co. v. United States, 449 U.S. 383, 389, 101
S.Ct. 677, 66 L.Ed.2d 584 (1981). The purpose of the privilege is to encourage the
client to confide fully in his counsel without fear that his disclosures could be used
against him by his adversaries. State v. Green, 493 So.2d 1178, 1189 (La. 1986);
Keith v. Keith, 48,919 (La. App. 2 Cir. 5/15/14), 140 So.3d 1202, 1208.

After careful review of the record, contrary to the district court’s ruling, we
find that the “conflict” theory posited by the State is speculative at best and is
based on nothing more than pure conjecture. To infringe upon the attorney-client
privilege existing between Mr. Gravois and his attorney by ordering the production
of documents that are clearly protected by this privilege—or by the work-product
privilege, or any other privilege that may apply in this case—based on the
possibility that if Mr. Gravois is convicted, he may in the future file an ineffective
assistance of counsel claim due to a possible conflict of interest, would have a
chilling effect on confidential communications between a client and his lawyer,
and tend to erode the purpose of the attorney-client privilege.

We note that after dismissal of Gravois I, Mr. Gravois submitted a request to
Berkley Insurance Company, the insurer for the St. James Parish Council, for
reimbursement of fees he incurred under Section 78-3 of the St. James Parish Code
of Ordinances, which allows for reimbursement of incurred fees for Parish
employees under certain circumstances, including where the hourly rates charged
were reasonable and the hours spent were necessary. In his request, Mr. Gravois
included a summary invoice, including no narrative description of the legal work
performed. Pursuant to La. C.E. art. 502(A), “A person upon whom the law
confers a privilege against disclosure waives the privilege if he … voluntarily
discloses or consents to disclosure of any significant part of the privileged matter.”
Thus, with regards to the billing invoices that Mr. Gravois (or his counsel on his
behalf) previously submitted to the Parish Council or its insurer, any privilege as to
these invoices was effectively waived and, thus, we find no basis to overturn the
district court’s judgment insofar as it ordered Mr. Gravois to produce these
invoices to the State.

For the foregoing reasons, we grant Mr. Gravois’ writ application in part and
reverse that portion of the district court’s June 2, 2022 judgment that denied the
motion to quash production of Items 1-7, and deny the writ in part to the extent that
the attorney-client privilege has been waived as to certain documents that fall
within Items 1-7. Mr. Gravois and the Firm are ordered to produce only those
documents in Items 1-7 for which the attorney-client privilege has been waived
due to their submission to third parties. Mr. Gravois’ request for a stay

Gretna, Louisiana, this 23rd day of June, 2022.

SMC
MEJ
RAC

7

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 06/23/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-K-267
E-NOTIFIED
23rd Judicial District Court (Clerk)
Hon. Katherine Tess Stromberg (DISTRICT JUDGE)
Matthew S. Chester (Relator) Charles S. Long (Respondent)
Robin C. O'Bannon (Respondent) Emily Olivier Kesler (Relator)
Lindsey D. Manda (Respondent)
Donald D. Candell (Respondent)

MAILED
Kenneth M. Klemm (Relator) Honorable Ricky L. Babin (Respondent)
Attorney at Law District Attorney
201 Saint Charles Avenue 23rd Judicial District Court
Suite 3600 Post Office Box 1899
New Orleans, LA 70170 Gonzales, LA 70707