State of Louisiana Versus Blaise Gravois

STATE OF LOUISIANA NO. 22-K-428

VERSUS FIFTH CIRCUIT

BLAISE GRAVOIS COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 84,79, DIVISION "C"
HONORABLE KATHERINE TESS STROMBERG, JUDGE PRESIDING

February 28, 2023

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.

REVERSED; REMANDED
SJW
HJL
JJM

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Ricky L. Babin
Charles S. Long
Robin C. O'Bannon
Donald D. Candell

COUNSEL FOR DEFENDANT/RELATOR,
BLAISE GRAVOIS
Matthew S. Chester
Kenneth M. Klemm
Emily Olivier Kesler

WINDHORST, J.

Relator/defendant, Blaise Gravois, seeks review of the trial court’s August 23,

2022 verbal ruling admitting into evidence, subject to its in camera review, specific

sealed documents, i.e., retainer agreements, that this court previously held were

privileged for the purpose of determining whether defendant’s counsel has a conflict

as alleged by the State.1 For the following reasons, we reverse the trial court’s ruling,

and remand for further proceedings consistent with this opinion.

PROCEDURAL HISTORY
On September 8, 2020, the St. James Parish District Attorney’s Office charged

defendant, the former director of operations for the Parish of St. James, with five

counts of malfeasance in office for allegedly misappropriating Parish assets. 2 The

following numerous motions, hearings, rulings, and the previous writ disposition

from this court are relevant to the specific ruling now challenged by defendant in

this writ application.

The State’s conflict motion

On January 7, 2022, the State of Louisiana filed a motion to determine

whether the defendant’s Sixth Amendment right to conflict free counsel has been

violated on the basis that there is a “probability” that his lead counsel, Matthew

Chester, and associate counsel, Emily Kessler,3 of the law firm of Baker, Donelson,

Bearman, Caldwell & Berkowitz, P.C. (“the Firm”) have an actual conflict of interest

1 It is undisputed by the parties that the documents submitted into evidence subject to the trial court’s in
camera review are redacted invoices and three separate retainer agreements. Defense counsel contends
that since this court’s June 23, 2022 judgment, defendant has conceded that his redacted invoices were
provided to the Parish’s insurer, Berkley Insurance Company, a third party, and therefore, they are no longer
privileged. However, defendant contends that the retainer agreements have not been provided to any third
parties, and therefore, any privilege asserted has not been waived. Consequently, defendant contends that
only the retainer agreements are at issue herein.
2 This bill of information was filed after the trial court quashed the previous grand jury indictment based on
the same facts without prejudice as a result of grand jury secret violations on March 11, 2020.
3 Based on the allegations and exhibits therein, it appears that Mr. Chester and Kenneth Klemm are counsel
of record for defendant.

22-K-428 1

in their representation of defendant in this criminal proceeding (hereafter “the

conflict motion”).

In the conflict motion, the State alleged that it “appears” that Mr. Chester

entered into a contingency fee agreement with the defendant which is prohibited

pursuant to Louisiana Rule of Professional Conduct 1.5 (d). The State asserted that

the payment of Mr. Chester’s legal fee is contingent upon his obtaining on behalf of

defendant a not guilty verdict or a dismissal with prejudice. The State averred that

this creates a concurrent conflict of interest under Louisiana Rule of Professional

Conduct 1.7, placing a “material determination” on Mr. Chester’s ability to represent

defendant and his personal interest in collection of legal fees. The State alleged that

a conflict exists because the Firm has taken on the dual role of representing

defendant for the criminal charges brought against him as well as representing him

in a civil proceeding demanding insurance proceeds from St. James Parish

Government’s insurer, Berkley Insurance Company, who provides coverage for the

payment of public employees’ criminal attorney fees, if the criminal proceeding is

dismissed with prejudice or the defendant is found not guilty after a trial. The State

also alleged that independent counsel should be appointed because Mr. Chester has

consistently and erroneously advised defendant of an incorrect element of the

charged crime, rebuffed any cooperation by defendant with the State, and rejected a

misdemeanor plea for defendant.

The State’s order for subpoena duces tecum related to its conflict motion

At a May 23, 2022 status conference,4 the State indicated that it would be

seeking a subpoena duces tecum for defense counsel’s billing records and all retainer

agreements with defendant. Specifically, the State asserted that it could not prove

its conflict motion without the documents requested in the subpoena duces tecum.

4 The status conference was set for the purpose of scheduling pending motions filed by the State and
defendant.

22-K-428 2

Defense counsel stated he objected to the production of privileged documents and

he would be filing a motion to quash the subpoena duces tecum. The State’s motion

and order for subpoena duces tecum was filed and granted by the trial court the same

day.5

Defendant’s motion to quash the State’s subpoena duces tecum

On May 26, 2022, defendant filed a motion to quash the State’s subpoena

duces tecum, contending that the State failed to make a prima facie showing of a

conflict. Defendant argued that when a purported conflict is based on speculation

and conjecture, which is the case herein, no discovery is warranted and no inquiry

by the trial court is required. Defendant contended that the State could not under

any circumstance make a prima facie showing of a conflict, a fact defendant averred

was admitted by the State in seeking the subpoena duces tecum. Additionally,

defendant 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. Thus, defendant asserted that even if the State could make a prima facie

showing, which he denied, the information requested is not discoverable. Defendant

asserted that the State’s requested discovery should be denied. Defense counsel

adamantly denied that a contingency fee agreement existed between him and the

defendant and denied that he represented defendant as to defendant’s civil claims

against the Parish’s insurer, Berkley Insurance Company.

In opposition to defendant’s motion to quash and in support of its subpoena

duces tecum, the State asserted that any billing records related to defendant’s

criminal defense are not subject to the attorney-client privilege. The State alleged

5 The subpoena duces tecum was issued to the “custodian of records” for the Firm, seeking (1) all retainer
agreements between defendant 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 defendant 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 defendant’s payment, recovery, or collection of criminal attorney’s fees.

22-K-428 3

that defendant’s 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 attorney’s fees for criminal defendant employees should they

be found not guilty or the charges dismissed with prejudice. The State contended

that the breach of duty exception to the attorney-client privilege allows the State to

review the requested documents pursuant to La. C.E. art. 506 C(3).6 The State

further asserted that any privilege was waived by dissemination of the bills to a third

party, in this case, the St. James Parish Council.

May 31, 2022 hearing on defendant’s motion to quash the State’s subpoena
duces tecum and the trial court’s June 2, 2022 judgment

On May 31, 2022, after a hearing on the defendant’s motion to quash the

State’s subpoena duces tecum, the trial court took the matter under advisement. On

June 2, 2022, the trial court issued a judgment with written reasons, granting in part

and denying in part, defendant’s motion to quash. The trial court found that the State

was not required to show an actual conflict of interest at this point in the pre-trial

proceeding and that the State showed that a potential conflict of interest exists. For

that reason, the trial court denied defendant’s motion to quash the State’s entire

subpoena duces tecum. The trial court found that any retainer agreements responsive

to numbers 1-4 of the State’s subpoena duces tecum are relevant to the State’s

conflict motion. The trial court found that the retainer agreements are excepted from

the attorney-client privilege under La. C.E. art. 506 C(3) because they relate to an

alleged breach of defendant’s criminal attorney’s duties under Louisiana Rule of

Professional Conduct 1.5 (d). Consequently, the trial court denied defendant’s

motion to quash as to numbers 1 through 4 of the State’s subpoena duces tecum and

6 La. C.E. art. 506 C(3) provides, in pertinent part:

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.

22-K-428 4

ordered defendant to produce any retainer agreements between defendant and the

Firm to the State.7 The trial court also found that the billing records requested in

numbers 5 through 7 of the State’s subpoena duces tecum are not privileged and

ordered the production of the same to the State, subject to a redaction of “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.” 8 Thus, the

trial court denied defendant’s motion to quash the State’s subpoena duces tecum as

to numbers 1-7.

The trial court further found that the State did not demonstrate that the

requests for correspondence between defendant and various attorneys and firms in

numbers 8 through 14 of the State’s subpoena duces tecum were relevant, and

therefore, granted in part defendant’s motion to quash as to those requests. The trial

court denied defendant’s motion requesting a stay of the time for compliance with

the State’s subpoena duces tecum and any proceedings concerning the State’s

conflict motion.

Defendant’s writ application regarding the June 2, 2022 judgment

On June 13, 2022, defendant filed a writ application in this court seeking

expedited review of the trial court’s June 2, 2022 judgment denying in part,

defendant’s motion to quash and ordering the production of privileged documents to

the State. See State v. Gravois, 22-267 (La. App. 5 Cir. 06/23/22), 2022 WL 2253572,

writ denied, 22-1106 (La. 09/27/22), 347 So.3d 155. Specifically, defendant sought

7 The State’s subpoena duces tecum numbers 1 through 4 requested production of any retainer agreements
between defendant and the 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 for attorney fees against St. James Parish Government.

8 The State’s subpoena duces tecum numbers 5-7 requested production of all billing records for the Firm’s
representation of defendant 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 from the Twenty-Third District Court Parish of St. James; and (7) all criminal
proceedings from the Parish of St. James.

22-K-428 5

review of the trial court’s judgment ordering defendant to produce all retainer

agreements and billing records to the State. Defendant also sought a stay of execution

of the trial court’s judgment pending disposition of his writ application. Id.

Defendant’s compliance with trial court’s June 2, 2022 judgment

On June 22, 2022, defense counsel produced approximately 300 hundred

pages of redacted billing records and the retainer agreements (a total of three separate

agreements) between the Firm and defendant to the State. Defense counsel produced

the documents after the State demanded production of the documents pursuant to the

trial court’s June 2, 2022 judgment and under threat of filing a motion for contempt

against defendant for failure to comply with said judgment.

This court’s June 23, 2022 ruling on the trial court’s June 2, 2022 judgment

The following day, on June 23, 2022, this court granted in part and denied in

part defendant’s writ application. See Gravois, 22-267, supra. This court also

denied defendant’s request for a stay pending resolution of the writ application. Id.

Most significantly, this court held in pertinent part:
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.
* * *
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 . . .
* * *
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 Rules 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

22-K-428 6

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. art. 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.
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

22-K-428 7

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 is
denied. [Italic emphasis original; boldface emphasis added.]

The State and defendant’s response to this court’s June 23, 2022 writ

Based on this court’s ruling, counsel for defendant immediately contacted the

State, requesting the return or destruction of the documents it now improperly

possessed. On the same day as this court’s ruling and defendant’s request for the

return or destruction of the documents, the State filed into the record all of the

obviously privileged documents which had been produced to the State by defendant

in compliance with the trial court’s June 2, 2022 judgment, along with its

investigator’s return on the subpoena duces tecum. The next day, on June 24, 2022,

the State filed a document which it entitled “Notice of Defendant’s Compliance with

Trial Court and Fifth Circuit’s Order to Disclose Records in Which the Attorney-

Client Privilege has been Waived Due to their Submission to Third Parties”

(hereafter the “State’s notice”) in apparent disregard of this court’s writ.9

On July 21, 2022, the State sought review of this court’s June 23, 2022 ruling

(No. 22-267) with the Louisiana Supreme Court, which denied the State’s

application for writs September 27, 2022 (No. 22-1106).

Defendant’s emergency motion to strike the “State’s notice” and motion to
prohibit the State from utilizing privileged information

On June 28, 2022, defendant filed an emergency motion to strike the “State’s

9 Because this Court previously determined the sealed documents at issue are privileged under the facts
of this case, we have therefore not reviewed them.

22-K-428 8

notice” and a motion to prohibit the State from utilizing the privileged information.

Defendant asserted that while his writ application was pending in this court, on June

20 and 21, 2022 the State demanded production of the privileged documents

referencing the trial court’s June 2, 2022 judgment and threatened to file a rule for

contempt against defense counsel if defendant did not produce the documents

immediately. Defendant produced the documents to the State, but citing La. C.E.

art. 502, defendant insisted that his production of the documents was not voluntary.

Defendant asserted that because he was judicially compelled to produce the

documents to the State, he had not waived any privilege. Defense counsel stated

that after this court’s ruling, he requested that the State immediately return or destroy

the documents. Instead of complying with this request, defendant asserted that the

State “flagrantly disregarded” this court’s June 23, 2022 ruling by placing “clearly”

privileged information in the public record and improperly referred to the privileged

documents in the “State’s notice.” Defense counsel requested that the trial court

order the State to destroy the privileged records, strike the “State’s notice,” and

further to instruct the State that it may not make any use of the privileged information

in any proceedings.

Hearing on defendant’s emergency motion to strike the “State’s notice” and
motion to prohibit the State from utilizing privileged information

The same day, on June 28, 2022, the trial court held a hearing. The State

asserted that it was not prepared to have arguments on the emergency motion to

strike. However, the State argued that defendant voluntarily disclosed the

documents, that defendant did not file anything to protect the records, and that the

documents were redacted. The State also asserted that defendant waived any

privilege as to the retainer agreements because they had been disseminated to a third

party, i.e., the State. The State averred that its investigator picked up the documents

and placed them in the record. Defendant argued that he was compelled to produce

22-K-428 9

the documents and that it was not voluntary. Defendant maintained that the State

improperly placed the documents in the record and improperly referred to those

documents in the “State’s notice.” Defense counsel emphasized that he was

concerned about the three retainer agreements he was forced to produce to the State

in compliance with the trial court’s order. He requested that the trial court protect

the documents until the parties could argue the matter.

After further argument, the trial court placed the “State’s notice” and the

privileged documents placed in the public record under seal until the next hearing.

The trial court further ordered the State to destroy the retainer agreements that it

received from the defense and ordered the State to provide a certification that it had

complied. The trial court did not address whether the documents were improperly

placed in the public record and did not rule on defendant’s motion.

Defendant’s motion for sanctions against the State re. privileged documents

On July 13, 2022, defendant filed a motion for sanctions against the State for

improperly placing “clearly privileged” information in the public record and using

the same in pleadings after this court’s June 23, 2022 judgment finding that the

documents were privileged. Defense counsel argued that the State’s actions in

intentionally placing the privileged documents in the record is misconduct subject

to sanctions. The trial court has not ruled on defendant’s motion.

The State’s supplement to its conflict motion

While this court’s June 23, 2022 ruling was pending with the Supreme Court,

and despite defendant’s pending emergency motion to strike, motion to prohibit, and

motion for sanctions against the State regarding the privileged documents, the State

filed a supplement to its conflict motion on July 22, 2022. Defendant objected to

this supplement based on the State’s use of privileged information in the supplement.

22-K-428 10

Defendant’s second emergency motion regarding privileged documents

On July 26, 2022, defendant filed another emergency motion (1) to strike the

State’s supplement to its conflict motion; (2) to require enforcement of prior orders;

and (3) to order the State to not use privileged information. The trial court has not

ruled on this motion.

The State’s motions to dismiss

Also, on July 26, 2022, the State filed a motion to dismiss defendant’s June

28, 2022 motion to strike and motion to prohibit. On July 28, 2022, the State filed

a motion to dismiss defendant’s July 26, 2022 emergency motion to strike. The trial

court has not ruled on the State’s motions.

July 28, 2022 hearing

On July 28, 2022, the trial court held another hearing. The court ordered the

State’s supplement to its conflict motion to be placed under seal. Defendant

requested that the documents placed under seal be removed from the public record.

The State argued that it “legally reviewed the documents” that the defense provided,

and it recognized the “contingent fee contract in it.” The State claimed that defense

counsel misled the trial court and this court and thus, immediately advised his

investigators to make a return of all the documents into the public record to “be

preserved as evidence before it gets destroyed.” The State maintained the documents

were properly placed in the public record and mentioned that it was seeking review

of this court’s June 23, 2022 ruling regarding the retainer agreements with the

Louisiana Supreme Court. The State asserted that the documents at issue are in the

record, and therefore, the trial court had authority to review them in camera. The

State also informed the trial court and defense counsel that as ordered by the trial

court, it destroyed the retainer agreements in its possession. Defense counsel

responded that there was no rule or authority requiring all the documents subject to

the subpoena to be placed in the public record.

22-K-428 11

The trial court stated that it had not reviewed any of the documents under seal

and that they would remain sealed until it received guidance from the higher courts.

The trial court did not rule on defendant’s pending emergency motions and motion

for sanctions regarding the privileged documents or the State’s motions to dismiss

defendant’s motions. However, at the conclusion of the hearing, after instructing

the parties not to refer to any of the alleged privileged documents currently being

reviewed by the Louisiana Supreme Court, the trial court scheduled the State’s

conflict motion for August 23, 2022.

August 23, 2022 hearing on the State’s conflict motion

On August 23, 2022, the trial court held a hearing on the State’s conflict

motion. The State claimed that defense counsel voluntarily produced the retainer

agreements and billing records and pursuant to La. C.Cr.P. art. 736, its investigator

was required to file a return, including all the documents received from defendant,

in the public record. The State argued that the trial court could inspect the documents

in camera, citing to “Keith vs. Keith.”10 The State contended that the trial court has

a duty to determine whether there is an “actual conflict of interest,” which would

violate defendant’s right to conflict free counsel. The State averred that the retainer

agreements would corroborate its own evidence and show a contingency fee

arrangement between defendant and his counsel. Afterwards, the State informed the

trial court that it wished to offer, file, and introduce the sealed documents received

from the subpoena duces tecum into evidence as State’s Exhibit 22.

In response, defense counsel maintained that this court found that the retainer

agreements are privileged and as such, they should be removed from the public

record. Defendant also argued that the State should not be allowed to introduce them

into evidence because the State was never entitled to the privileged documents.

10 Keith v. Keith, 48,919 (La. App. 2 Cir. 5/15/14), 140 So.3d 1202, 1208.

22-K-428 12

Defendant asserted that this court already held that the conflict motion was

“speculative” and “pure conjecture.” Under the law of the case, defense counsel

argued that the privileged documents should not be viewed unless the Louisiana

Supreme Court granted writs finding that the documents are not privileged.11

The trial court inquired as to whether the Louisiana Supreme Court was still

reviewing this court’s June 23, 2022 ruling, which found that the documents at issue

were privileged, and the State confirmed that its writ application was still pending.

Without ruling on defendant’s and the State’s pending motions concerning the

privileged documents, and without ruling on whether the privileged documents

under seal were legitimately placed in the public record, the trial court orally ruled

that it would allow the sealed privileged documents to be admitted as evidence,

subject to its in camera review of the documents for use in determining the merits

of the State’s conflict motion. Defendant indicated that he would be seeking a writ

with this court regarding the trial court’s ruling. The trial court stated that it would

not review the sealed privileged documents until it received “guidance from the

appellate court” and would not rule on the merits of the State’s conflict motion until

after this issue was resolved.

Defendant’s current writ application

On September 12, 2022, defendant filed a notice of intent to apply for

supervisory writs regarding the trial court’s August 23, 2022 oral ruling. Defendant

timely filed the instant writ application.

DISCUSSION

In this writ application, defendant contends that the trial court’s August 23,

2022 ruling should be reversed for two reasons. First, although a trial court has

discretion to review privileged documents in camera, defendant asserts that the

11 As stated above, the Louisiana Supreme Court denied writs, September 27, 2022, No. 22-1106.

22-K-428 13

jurisprudence mandates that the proponent seeking the review must make a threshold

showing that it is needed due to the “inherent dangers of invading a party’s

evidentiary privileges.” He avers that the State cannot make this showing because

this court has already held that the conflict theories raised by the State are

“speculative at best” and based on “nothing more than pure conjecture.” Defendant

contends that neither the State nor the trial court explained why an in camera

inspection was needed. Defendant further maintains that the arguments advanced

by the State are based on its review and improper use of the privileged documents.

Defendant further argues that this court has already reviewed the State’s conflict

motion and rejected the trial court’s reasoning that it should review the privileged

records because a conviction could result in “possible reversal and retrial.”

Secondly, defendant argues that there is no case authority permitting the

State’s improper actions following this court’s ruling on June 23, 2022. He asserts

that the State’s actions in “repeatedly trampling on his rights and privileges can only

be described as sanctionable, and the trial court should not reward the State for its

“misbehavior,” especially since this court has ruled that no conflict exists.

Defendant contends that the trial court should not be allowed to review in camera

privileged documents, i.e., the retainer agreements, improperly placed in the public

record, and accordingly, the trial court’s judgment should be reversed.

In opposition, the State maintains that defense counsel voluntarily produced

the retainer agreements and billing records pursuant to the trial court’s June 2, 2022

judgment regarding defendant’s motion to quash the State’s subpoena duces tecum.

The State contends that prior to this court’s June 23, 2022 ruling, the ordered

documents were “voluntarily” produced fully redacted of all attorney-client

information, without reservation and without a privilege log.12 Additionally, the

12 The State argues that the documents were redacted when produced. However, a review of the trial
court’s June 2, 2021 judgment reflects that the trial court only specified redaction of the billing records, not
the retainer agreements.

22-K-428 14

State argues that the retainer agreements do not contain privileged information. The

State asserts that the sole issue before this court is whether a trial court may review,

in camera, documents which may contain privileged information in determining the

merits of the State’s conflict motion. The State contends that the “mode and method

of obtaining the records here is irrelevant.” The State argues that the trial court

determines what evidence is necessary for its consideration in a disqualification of

counsel inquiry and that the trial court is authorized to conduct in camera inspections

of documents protected by the attorney-client privilege for this purpose.

In reply, defendant contends the State’s argument that he waived his privilege

is meritless. Defendant asserts that the retainer agreements he produced were not

redacted and that the State’s placement of the privileged material into the record was

not excused by the Louisiana Code of Criminal Procedure.

Issues and Analysis

The question before this court is whether the trial court erred in allowing the

sealed privileged documents, i.e., the retainer agreements, to be admitted as

evidence, subject to an in camera review by the trial court for the purpose of

determining the merits of the State’s conflict motion.13 For the following reasons,

we find the trial court abused its discretion in admitting into evidence the sealed

privileged documents, even subject to an in camera review.

Based on a review of the record, it is undisputed that defendant continuously

and strenuously opposed production of the privileged documents, i.e., the retainer

agreements, to the State. Despite defendant’s objection to production of the

privileged documents pursuant to the State’s subpoena duces tecum, the trial court

denied defendant’s motion to quash the subpoena duces tecum with regard to the

retainer agreements, and the trial court ordered defendant to produce the privileged

13 The parties do not dispute that the sealed documents subject to the trial court’s in camera review, i.e.,
the retainer agreements, are the same documents challenged in Gravois, supra.

22-K-428 15

documents to the State. Defendant sought a stay with the trial court, which was

denied, and requested expedited supervisory review and a stay with this court. While

defendant’s writ application was pending with this court, the State made repeated

demands to defendant for the immediate production of the privileged documents

pursuant to the trial court’s order and stated that failure to produce would result in

the State filing a motion for contempt against defendant. In response, defense

counsel sent a letter advising this court of this “development to the extent it impacted

the Court’s review of [defendant’s] request for a temporary stay order and/or request

for expedited treatment in connection with the pending Writ Application.”

On June 22, 2022, pursuant to the trial court’s order and in light of the State’s

demands, defense counsel produced the privileged documents to the State.

Nevertheless, the State has since continually maintained that defendant’s production

of the privileged documents was voluntary, and therefore, any privileged was waived

by producing the documents to a third party, in this case, the State. Contrary to the

State’s assertion, defendant’s production of the privileged documents to the State

clearly was not voluntary, and defendant continuously opposed production of the

documents at all times. The privileged documents were produced solely in

compliance with the trial court’s June 2, 2022 order. Judicially compelled disclosure

of privileged documents does not constitute a waiver. La. C.E. art. 502 B.14

The day after producing the documents, on June 23, 2022, this court issued its

ruling, granting in part and denying in part defendant’s writ application. In Gravois,

supra, this court clearly held that the retainer agreements compelled by the State’s

subpoena duces tecum, and the subject of this writ application, were protected by the

attorney-client privilege under the facts of this case, and were not exempt from the

attorney-client privilege under La. C.E. art. 506 C(3). This court explicitly stated

14 La. C.E. art. 502 B provides:
Disclosure under compulsion or without opportunity to claim. A claim of privilege is not defeated
by a disclosure which was compelled or made without opportunity to claim the privilege.

22-K-428 16

that La. C.E. art. 506 did not “provide authority for a third party, such as the State,

to obtain privileged documents by asserting the applicability of an exception of the

attorney-client privilege. The trial court erred in concluding otherwise.”

As to the State’s conflict motion, this court found that the conflict theory

asserted by the State is “speculative at best and is based on nothing more than pure

conjecture.” This court stated that “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.”

This court further held that only billing records, which had already been

produced to third parties, had to be produced to the State. Gravois, supra. Thus,

this court found that the trial court erroneously compelled defendant to produce the

privileged documents, i.e., the retainer agreements, at issue in this writ application.

The State sought review of this court’s June 23, 2022 ruling with the Louisiana

Supreme Court, which was denied on September 27, 2022. State v. Gravois, 22-

1106 (La. 09/27/22), 347 So.3d 155.

Upon review of the writ application, opposition, reply, and exhibits attached

thereto, we find that the trial court abused its discretion in admitting into evidence

the privileged documents (i.e., the retainer agreements), subject to an in camera

review for the purpose of determining the merits of the State’s conflict motion. This

court in Gravois, supra, ruled that defendant’s production of the retainer agreements

to the State for the purpose of the State’s conflict motion was erroneously compelled

by judicial order of the trial court. This ruling was upheld by the Louisiana Supreme

22-K-428 17

Court. Id. Because the privileged documents were erroneously compelled by

judicial order, compliance with the trial court’s order did not constitute a waiver of

any privilege. La. C.E. art. 502 B. Consequently, the State did not have any legal

authority (1) to review the documents, (2) utilize the contents of the documents in

any manner, (3) place the documents in the public record,15 or (4) to offer, file, and

introduce the documents into evidence at the conflict motion hearing.

Moreover, the trial court abused its discretion in admitting the retainer

agreements into evidence, because the State’s conflict motion was “speculative at

best and is based on nothing more than pure conjecture,” there was no need for —

or right to — an in camera review for the purpose of determining the merits of the

State’s conflict motion. On June 23, 2022, this Court granted defendant’s motion to

quash in part and determined that defendant did not have to provide the retainer

agreements to the State. Further, the Louisiana Supreme Court denied the State’s

writ application seeking review of this Court’s June 23, 2022 ruling.

15 La. C.Cr.P. art. 734 provides in pertinent part:
A. When the district attorney is involved in the investigation or prosecution of a criminal
case, investigators who are employed by that district attorney and who are P.O.S.T.
certified commissioned law enforcement officers may serve any subpoena or subpoena
duces tecum which is issued in that case. Each investigator who serves a subpoena or
subpoena duces tecum under the provisions of this Article shall execute the return of
service provided for in Article. 736. [Emphasis added.]
La. C.Cr.P. art. 736 provides in pertinent part:
The sheriff shall endorse on a copy of the subpoena date, place, type of service, and
sufficient other data to show service in compliance with law. When the witness cannot be
found, the sheriff must set out in his return every fact that in his opinion justifies the return.
He shall sign and return the copy promptly after the service to the court that issued the
subpoena. The return, when received by the clerk, shall form part of the record and shall
be considered prima facie correct.
Under the plain language of La. C.Cr.P. art. 736, contrary to the State’s assertion, the law does not require
that all documents received in compliance with a subpoena must be filed in the public record with the return.

22-K-428 18

DECREE

For the reasons stated herein, this writ application is granted, the trial court’s

ruling is reversed. Accordingly:

IT IS ORDERED that the retainer agreements shall be:
1. Inadmissible in evidence in this case;
2. Returned by the trial court to the defense counsel; and
3. Returned by the District Attorney to defense counsel, and no copies
thereof shall be retained or again obtained. The District Attorney is
also prohibited from using or referencing the substance of or
information obtained from the retainer agreements.

This case is remanded for further proceedings consistent with this opinion and

with this court’s supervisory writ to the trial court in State v. Gravois, 22-267 (La.

App. 5 Cir. 6/23/22), 2022 WL 2253572; writ denied, 22-1106 (La. 09/27/22), 347

So.3d 155.

REVERSED; REMANDED

22-K-428 19

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 28, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-K-428
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HON. KATHERINE TESS STROMBERG (DISTRICT JUDGE)
CHARLES S. LONG (RESPONDENT) DONALD D. CANDELL (RESPONDENT) ROBIN C. O'BANNON (RESPONDENT)
EMILY OLIVIER KESLER (RELATOR) KENNETH M. KLEMM (RELATOR) MATTHEW S. CHESTER (RELATOR)

MAILED
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23RD JUDICIAL DISTRICT COURT
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