## Facts

- Eric D. Miller, a post-doctoral research scientist, died on December 2, 2000, from arsenic poisoning after becoming ill following a bowling outing with his wife’s coworkers.
- At the bowling alley, Miller drank from a beer cup handed to him by Derril H. Willard and remarked it tasted “bad” or “funny.”
- Investigators interviewed all attendees except Willard, who could not be interviewed; the investigation revealed Willard and Miller’s wife had an extramarital relationship.
- Willard retained attorney Richard T. Gammon regarding possible criminal liability and, on counsel’s advice, declined a law-enforcement interview.
- Willard later died by suicide; the State sought disclosure of any information Willard communicated to Gammon about Miller’s death.
- The superior court ordered Gammon to submit an affidavit for in camera review disclosing information about Miller’s death obtained from Willard, based on an “interest of justice” balancing approach.

## Issues

1. Whether the superior court had authority to assume jurisdiction over the State’s petition seeking information held by a private attorney in an ongoing homicide investigation.
2. Whether the attorney-client privilege survives the client’s death.
3. Whether North Carolina recognizes a general “interest of justice” balancing exception that can override the attorney-client privilege in a criminal investigation.
4. Whether a trial court may require in camera disclosure of the substance of attorney-client communications to determine whether the privilege applies.
5. Whether client communications that relate solely to the interests or plans of a third party fall within the attorney-client privilege, and what standard governs any compelled disclosure.

## Decision

- The Supreme Court of North Carolina held the superior court could assume jurisdiction under its inherent authority when exigent circumstances are shown.
- The court held the attorney-client privilege survives the client’s death.
- The court rejected any free-form “interest of justice” balancing test as a basis to pierce the privilege.
- The court held a trial court may conduct an in camera inquiry into the substance of communications to determine whether, and to what extent, the privilege applies.
- The court held communications solely concerning the interests, motives, liabilities, or plans of a third party are not privileged; communications affecting the client’s own legal interests remain privileged, though “mixed” communications may be disclosed only upon a clear and convincing showing that disclosure will not expose the client to civil or criminal liability or harm reputation.
- The court remanded for an in camera review under the correct standards, rather than the trial court’s balancing approach.

## Legal Principles

- North Carolina’s attorney-client privilege survives the client’s death.
- Courts may not override the privilege through generalized balancing of investigative or public interests against confidentiality.
- The trial court, not the asserting attorney, decides whether privilege applies; in camera review of communication substance may be required to make that determination.
- Communications that relate solely to a third party’s interests or plans fall outside the privilege even if made in a confidential attorney-client setting.
- Communications that also bear on the client’s own rights, obligations, or liabilities are privileged; compelled disclosure of such mixed communications requires a clear and convincing showing that disclosure will not subject the client to liability or reputational harm.
- A superior court may invoke inherent authority to hear an extraordinary petition in an ongoing serious investigation when exigent circumstances exist.

## Conclusion

The court confirmed that the attorney-client privilege continues after a client’s death and cannot be breached by a general public-interest balancing test, while permitting in camera judicial review to separate nonprivileged third-party-only communications from privileged client-related communications and remanding for application of those standards.


In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (N.C. 2003)