State v. Branham

Michael Branham (defendant) was personal friends with attorney W. James Kelly. Branham had also hired Kelly to represent him in a few civil matters. However, Kelly was friends with both Branham and Branham’s wife and had refused to represent either spouse in their pending divorce. During a social visit at Branham’s house, Branham and Kelly were discussing personal matters. Branham then asked Kelly if Kelly was his attorney. Kelly told Branham that he was, and Branham said that he planned to kill his wife. Kelly told Branham not to talk that way and did not give Branham any legal advice or other assistance regarding the proposed murder. Branham told Kelly about his murder plans a few more times, and Kelly told Branham’s wife what Branham had said. Branham then killed his wife, claiming that he acted in self-defense because she attacked him. Before Branham was indicted for murder, Kelly was ordered by a judge to disclose his conversations with Branham about Branham’s plans to murder his wife. After Branham was indicted, he claimed that his communications with Kelly were protected by the attorney-client privilege and could not be introduced during his trial. The trial court found that Branham had relied on Kelly’s response that he was Branham’s lawyer when he made the statements to Kelly about killing his wife. The trial court further ruled that Branham’s reliance on his belief that an attorney-client relationship existed meant that the attorney-client privilege protected the statements. The court of appeal agreed to review the privilege issue.