297 GA. 501
FINAL COPY

                    S15A0011. NEUMAN v. THE STATE.


      HUNSTEIN, Justice.

      Appellant Hemy Neuman was indicted and tried for murder and firearm

possession in connection with the shooting death of Russell “Rusty”

Sneiderman. Neuman pled not guilty by reason of insanity, claiming that he

suffered from mental illness that rendered him incapable of distinguishing

between right and wrong in relation to his crimes. The jury found Neuman

guilty but mentally ill, and Neuman now appeals, contending that the trial court

erred in ruling on the admission and exclusion of certain evidence. Because the

trial court erred in admitting evidence, which was protected by the attorney-

client privilege, we now reverse.1

      1
        On February 8, 2011, a DeKalb County grand jury indicted Neuman for
malice murder and possession of a firearm during the commission of a felony. During
February 13 through March 15, 2012, Neuman was tried before a jury. On March 15,
2012, the jury returned a verdict of guilty but mentally ill on the count of malice
murder and guilty on the possession count. On the same day, the court sentenced
Neuman to life without the possibility of parole for the murder conviction and five
consecutive years to serve on the possession conviction. Neuman filed a motion for
new trial on March 20, 2012, which was subsequently amended. The trial court held
a hearing on Neuman’s motion for new trial on March 4, 2014, and denied the motion
in an order filed March 17, 2014. Neuman filed a notice of appeal on April 10, 2014.
The appeal was docketed to the January 2015 term of this Court and orally argued on
      Viewed in the light most favorable to the jury’s verdict, the evidence

adduced at trial established as follows. Shortly after 9:00 a.m. on November 18,

2010, Sneiderman was walking to his car outside of a Dunwoody daycare center

after having just dropped off his son, when Neuman approached and shot him

four to five times in the neck and torso. Sneiderman was pronounced dead

approximately an hour later.

      Neuman does not dispute that he planned and perpetrated Sneiderman’s

murder. He admitted that he had an affair with Sneiderman’s wife, planned

Sneiderman’s murder, purchased a disguise and a gun, rented a car, shot

Sneiderman, threw the gun in a lake, disposed of the disguise, asked the person

from whom he had purchased the gun to lie to the police, and lied to the police

himself. Additionally, witnesses from the scene at the daycare identified

Neuman as the shooter during trial. Ballistic evidence showed that the bullets

that killed Sneiderman matched the gun Neuman had purchased.

      At trial, both Neuman and the State presented expert witnesses who

opined on Neuman’s mental capacity at the time of the shooting. Neuman’s




January 20, 2015.
                                       2
experts concluded that he suffered from “bipolar disorder with psychosis,

experiencing delusions,” which made Neuman (1) incapable of distinguishing

between right and wrong, (2) believe he needed to kill Sneiderman in order to

protect Sneiderman’s children from harm by their father, and (3) lie to police

and take efforts to conceal his identity so that Sneiderman’s wife would not

know he killed her husband. Neuman’s experts concluded that he was not

malingering and had suffered depressive and manic episodes throughout his life

consistent with their diagnosis of bipolar disorder. In rebuttal, the State

presented experts who concluded that Neuman was able to distinguish right

from wrong at the time of the shooting and that the symptoms and behaviors he

reported were inconsistent with genuine mental illness. In particular, one of the

State’s experts believed Neuman was faking symptoms of mental illness, while

another State expert opined that Neuman showed no signs of mental illness,

hallucinations, or delusions while in jail. Additionally, the State presented

testimony from numerous friends and co-workers of Neuman who stated that

they had never witnessed any symptoms or behaviors consistent with a mental

illness involving manic episodes, delusional thinking, or hallucinations, and that

to the contrary, Neuman was high functioning.

                                        3
      1. Though Neuman has not enumerated the general grounds, we find that

the evidence as summarized above was sufficient to enable a rational trier of fact

to conclude beyond a reasonable doubt that Neuman was guilty of the crimes of

which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61

LE2d 560) (1979). The jury was likewise authorized to reject Neuman’s

insanity defense.2 See Choisnet v. State, 295 Ga. 568 (1) (761 SE2d 322)

(2014); Durrence v. State, 287 Ga. 213 (1) (b) (695 SE2d 227) (2010).

      2. Neuman contends that the trial court erred in its failure to quash the

subpoenas of Dr. Peter Thomas, a licensed psychologist, and Dr. Julie Rand

Dorney, a forensic psychiatrist. After Neuman entered a plea of not guilty, his

counsel began investigating Neuman’s psychological state at the time of the

shooting. At the request of Neuman’s attorneys, Dr. Rand Dorney and Dr.

Thomas met with Neuman to initially evaluate his psychological issues, and they

reported their findings to Neuman’s attorneys. Upon the advice of these

doctors, Neuman’s attorneys then hired an expert witness to conduct a forensic

psychological evaluation of Neuman to assess his criminal responsibility. After


      2
       See OCGA § 17-7-131 (c) (distinguishing between verdict of “not guilty by
reason of insanity” and verdict of “guilty but mentally ill”).
                                        4
this expert’s evaluation, Neuman changed his plea of not guilty to not guilty by

reason of insanity.

      Upon learning that both Dr. Rand Dorney and Dr. Thomas had met with

Neuman, the State sought the doctors’ records, over Neuman’s objections. After

two hearings, the court ordered that both Dr. Rand Dorney and Dr. Thomas

“turn over all records in [their] possession concerning [their] evaluation(s) and

interview(s)” of Neuman for an in camera review. After this review, the court

provided the State with the doctors’ notes concerning their evaluations of

Neuman and Neuman’s statements to them. It is undisputed that up until this

time, Neuman’s attorneys had never intended to call Dr. Rand Dorney or Dr.

Thomas to testify at trial. However, in light of the court’s rulings, the defense

anticipated that the State would call the doctors as rebuttal witnesses, and

therefore, needed to call them as part of the defense’s case-in-chief.3

      Neuman argues that the trial court erred in allowing the State access to the

doctors’ notes and evaluation of him and statements he made to the doctors



      3
        Before calling the doctors to testify, as well as throughout the trial, Neuman
reiterated his objections to the State having access to the doctors’ notes and records
and to presenting this evidence to the jury.
                                          5
because this evidence is protected by the attorney-client privilege.4 For reasons

explained below, we agree, and we reject the State’s contention that merely

raising an insanity defense waives the attorney-client privilege for these

communications.

      The attorney-client privilege is “the oldest of the privileges for

confidential communications known to the common law,” Upjohn Co. v. United

States, 449 U. S. 383, 389 (II) (101 SCt 677, 66 LE2d 584) (1981), and has long

been recognized in Georgia. See Fire Assn. of Philadelphia v. Fleming, 78 Ga.

733 (3) (3 SE 420) (1887). The privilege allows for open communications

between an attorney and his or her client, free from apprehension of compelled

disclosures, thereby enabling the attorney to gather complete and accurate

information about the client’s situation. See Paul S. Milich, Georgia Rules of



      4
        Although on appeal Neuman frames the trial court’s alleged error as a failure
to quash the doctors’ subpoenas, there was no express ruling by the trial court on
Neuman’s motion to quash the subpoena for Dr. Thomas and Neuman did not file a
motion to quash with regard to Dr. Rand Dorney. However, the court’s orders
directing that the doctors turn over their files were effectively the same ruling as a
denial of a motion to quash, and Neuman continued to object to the State’s access to
the doctors’ records and the admission of evidence at trial. Additionally, the State has
not argued that Neuman did not properly preserve this issue for appeal or otherwise
object to the manner in which the issue has been framed. Accordingly, we consider
Neuman’s enumeration of error on appeal to have been properly raised.
                                           6
Evidence, § 21:1, at 857-858 (2014-2015 ed.).

      From a practical standpoint, lawyers could not represent the best interests

of their clients and gather complete and accurate information without assistance

from a variety of individuals. In order that the attorney may properly prepare

his or her case



      [i]t has long been the law of Georgia, in keeping with that of other

      United States jurisdictions, that the attorney-client privilege

      “includes, by necessity, the network of agents and employees of

      both the attorney and client, acting under the direction of their

      respective principals, to facilitate the legal representation.”



Davis v. State, 285 Ga. 343, 350 (676 SE2d 215) (2009) (Sears, C. J.,

concurring); see Taylor v. Taylor, 179 Ga. 691, 692-693 (177 SE 582) (1934);

Fire Assn. of Philadelphia, 78 Ga. at 738; Milich, § 21:3, at 861.

Consistent with this general principle, and after a review of authority from other

states on this issue, we join numerous other jurisdictions in holding that the

attorney-client privilege applies to confidential communications, related to the

                                        7
matters on which legal advice is being sought, between the attorneys, their

agents, or their client, and an expert engaged by the attorney to aid in the client’s

representation; the privilege is not waived if the expert will neither serve as a

witness at trial nor provide any basis for the formulation of other experts’ trial

testimony. See, e.g., United States v. Alvarez, 519 F2d 1036, 1045-1047 (3d

Cir. 1975) (attorney-client privilege applies to a defendant’s communications

with a non-testifying psychiatric expert); People v. Knuckles, 650 NE2d 974,

981 (II) (Ill. 1995) (attorney-client privilege “protects communications between

a defendant who raises an insanity defense and a psychiatrist employed by

defense counsel to aid in the preparation of the defense, if the psychiatrist will

not testify and the psychiatrist's notes and opinions will not be used in the

formulation of the other defense experts' trial testimony”); State v. Hitopoulus,

309 SE2d 747 (S.C. 1983) (a defendant’s communications to a psychiatrist

employed by the defendant’s attorney to aid in his defense are covered by the

attorney-client privilege); Houston v. State, 602 P2d 784, 789-790 (Alaska

1979) (in order for defense counsel to ascertain whether there is a valid insanity

defense, an expert’s examination of the defendant is protected by the attorney-

client privilege, as long as testifying experts do not rely upon that expert’s

                                          8
report); State v. Pratt, 398 A2d 421, 424 (Md. 1979) (in criminal cases,

“communications made by a defendant to an expert in order to equip that expert

with the necessary information to provide the defendant's attorney with the tools

to aid him in giving his client proper legal advice are within the scope of the

attorney-client privilege”); People v. Hilliker, 185 NW2d 831, 833-834 (Mich.

Ct. App. 1971) (confidential communications made to an attorney by a doctor

or psychiatrist on behalf of the client are protected by attorney-client privilege).5

If counsel later elects to call the expert as a witness at trial, the cloak of privilege

ends.

        Here, Neuman’s counsel engaged both Dr. Rand Dorney and Dr. Thomas

to assist in evaluating an insanity defense for Neuman. Neuman’s attorneys

called Dr. Rand Dorney and asked her to evaluate the case and assess whether

Neuman presented any psychological issues. Dr. Rand Dorney agreed to assist

Neuman’s attorneys, but only as a consultant and not as an expert witness, due

to her full practice load at the time. She understood her role as a consultant to



        Our holding accords with the view expressed by Professor Milich in his
        5


treatise on Georgia evidence. Milich, § 21:3, at 862 (“When the expert is not hired
to be a witness but only to assist the attorney or client with a legal matter, the expert
is part of the privileged network.”).
                                           9
entail working for Neuman’s attorneys as an agent for the defense team,

screening Neuman to assess whether there were any psychological issues, and

collecting objective testing to determine if there were mental issues that needed

to be explored further. Pursuant to her understanding of her role as a consultant,

she met with Neuman for a few hours for a screening in an effort to find major

areas of psychopathology; she did not perform a forensic evaluation for insanity

or review all of the evidence in the case.

      After this initial review, Dr. Rand Dorney called Dr. Thomas and asked

him to perform objective testing on Neuman to see if there were any signs of

major psychopathology or malingering. Dr. Thomas agreed to help Dr. Rand

Dorney but emphasized that “there was no way [he] could testify because this

[was not his] area.” Dr. Thomas spoke with Neuman’s attorneys and informed

them about the nature of his expertise and what he was willing to do, and

Neuman’s attorneys instructed Dr. Thomas to administer some tests to Neuman

and help them develop their case with a better understanding of Neuman’s

psychological issues. Dr. Thomas met with Neuman and explained to him that

he was there at the behest of his lawyers in order to help the lawyers develop

their case and that whatever Neuman discussed with Dr. Thomas was between

                                       10
Dr. Thomas, Dr. Rand Dorney, and Neuman’s attorneys. He performed a very

brief clinical interview of Neuman as well as a psychological personality

inventory. Dr. Thomas reported his results to Dr. Rand Dorney, who in turn met

with Neuman’s attorneys to discuss possible next steps.

      At the request of Neuman’s counsel, Dr. Rand Dorney and Dr. Thomas

then met with Neuman at the jail for approximately three hours to review some

of his test results. After this meeting, Dr. Rand Dorney informed Neuman’s

attorneys that further exploration of Neuman’s mental issues was necessary and

recommended doctors who might be able to serve as expert witnesses at trial and

conduct a full evaluation of Neuman. Thus, the doctors worked at the direction

of Neuman’s counsel to evaluate him and assess whether he presented any

psychological issues, and the doctors communicated their impressions and

assessments and Neuman’s own statements to his attorneys.

      Neither Dr. Thomas nor Dr. Rand Dorney conducted an independent

investigation of the facts of the criminal case, nor did they review any discovery.

Neither doctor prepared an evaluation of Neuman’s mental capacity with regard

to insanity to be used in court, nor did they professionally treat Neuman.

Finally, neither of Neuman’s expert witnesses at trial relied on Dr. Rand

                                        11
Dorney’s or Dr. Thomas’ notes in the formulation of their expert opinions.

      The State argues that communications between Dr. Rand Dorney, Dr.

Thomas, and Neuman are not protected by the attorney-client privilege because

they were not confidential. See Davis, 285 Ga. at 347 (letters were not protected

by the attorney-client privilege because they did not contain confidential

communications). The State contends that Neuman signed a form, presented to

him when Dr. Thomas and Dr. Rand Dorney met with him at the jail, waiving

any confidentiality. The form reads, in pertinent part, as follows:

             You have been referred by Mr. Robert Rubin [Neuman's trial
      counsel] for an independent medical examination. The purpose of
      this examination is to [sic] criminal responsibility & psych testing.
      The examination is not confidential, nor is it for the purpose of
      treatment. Anything we discuss in the examination may be included
      in the written report or may be disclosed in court. Therefore,
      nothing is off the record and anything you say or do during the
      evaluation is not a secret. When the evaluation is complete a written
      report will be provided to your attorney. You do not have to
      participate in the examination or answer any questions you do not
      wish to answer. If you have questions or concerns you may ask at
      any time and if you want to stop the examination, you may stop at
      any time.

            Importantly, Dr. Rand Dorney specifically explained to Neuman

      that she and Dr. Thomas were going to “explore . . . some of these issues

      on his testing, but also to report that information directly back to” only

                                          12
Neuman's attorneys, and his attorneys would then decide how to use the

information. Although the form states that the exam would not be

confidential, it also states that the exam is at the referral of Neuman’s

attorney and information would be reported to trial counsel. When a

client authorizes his lawyers or their agents, expressly or impliedly, to

waive his confidential communications as necessary to carry out his

representation, that does not authorize the other party to the litigation to

demand that the waiver be exercised. See Georgia Rules of Professional

Conduct, Rule 1.6 (a) (“[a] lawyer shall maintain in confidence all

information gained in the professional relationship with a client . . . except

for disclosures that are impliedly authorized in order to carry out the

representation”) and comment [6].

      In addition, Dr. Rand Dorney testified that she was required to get

Neuman’s signature in order for him to discuss his psychological health

with her, and this form, which she typically used for forensic evaluations,

was the only form that she had at the time; she rarely did consulting work

and did not have a form specifically for a consultation. Based on her and

Dr. Thomas’ roles as consultants to the defense team and her explanation

                                     13
      to Neuman, Dr. Rand Dorney did not understand this form to be

      Neuman’s consent to a “full criminal responsibility evaluation.”

            After a review of this evidence, we conclude that the

      communications between Dr. Thomas, Dr. Rand Dorney, and Neuman at

      this jail meeting were intended to be confidential within the defense team

      and to be reported to Neuman’s attorneys to better assess how to prepare

      his insanity defense. Our conclusion is further supported by the fact that

      only after Dr. Rand Dorney communicated her assessment from this

      meeting to Neuman’s attorneys did his attorneys then seek out an expert

      witness to testify at trial and to conduct a forensic psychological

      evaluation of Neuman.

            Moreover, this form only covered the one jail meeting. It did not

      cover the prior meetings that each doctor had with Neuman or the

      communications between Dr. Rand Dorney, Dr. Thomas, and Neuman’s

      attorneys. There is no evidence to support a conclusion that these

      communications were intended to be anything but confidential.6

      6
       The State relies on Weakley v. State, 259 Ga. 205 (2) (378 SE2d 688) (1989),
to support its argument that the attorney-client privilege does not apply when an
expert’s report, material, or testimony does not contain confidential communications
                                            14
             We find that the communications between Neuman, Dr. Thomas,

      Dr. Rand Dorney, and Neuman’s attorneys were intended to be

      confidential because it would foster an environment in which the doctors

      could probe Neuman for the truth, as part of the attorneys’ assessment of

      the viability of an insanity defense. Thus, we conclude that the notes and

      records of Dr. Rand Dorney and Dr. Thomas, which the trial court ordered

      be turned over to the State, were protected by the attorney-client

      privilege.7

             The State asserts that Neuman waived all privileges by raising an



between the defendant and the defendant’s attorney. In Weakley, the attorney-client
privilege did not apply to the testimony of a firearms expert, who had been retained
by the defense, because we found that none of the testimony concerned confidential
communications between the defendant and the defendant’s attorney. 259 Ga. at 205.
Here, however, Drs. Rand Dorney and Thomas relayed Neuman’s own statements,
and their notes based on these statements, directly to Neuman’s attorneys. These
were confidential communications.
      7
        Our conclusion that the attorney-client privilege applies is not voided by the
defense’s decision to call the doctors to testify at trial. Neuman’s attorneys made a
strategic trial decision to call the doctors as part of their case-in-chief only after the
trial court ordered the doctors’ records be turned over to the State; they did so in an
effort to contain potentially damaging testimony, rather than waiting for the State
inevitably to call the doctors as rebuttal witnesses. See Harley-Davidson Motor Co.
v. Daniel, 244 Ga. 284 (2) (260 SE2d 20) (1979) (noting that once it is known that
the court will admit evidence over objection, trial strategy may include introducing
the highly prejudicial evidence to ameliorate its effect on the jury).
                                               15
      insanity defense.8 However, the attorney-client privilege is vital in cases

      such as this one where the defendant’s sanity is at issue because the

      privilege allows the attorneys to consult with the non-testifying expert in

      order to familiarize themselves with central medical concepts, assess the

      soundness and advantages of an insanity defense, evaluate potential

      specialists, and probe adverse testimony. Pratt, 398 A2d at 424. “‘Only

      a foolhardy lawyer would determine tactical and evidentiary strategy in

      a case with psychiatric issues without the guidance and interpretation of

      psychiatrists and others skilled in this field.’” Houston, 602 P2d at 790,

      n.11. Moreover, a blanket waiver of attorney-client privilege by raising

      an insanity defense would chill a defendant’s willingness to confide in his

      attorneys or any defense-employed consultants or experts. Knuckles, 650

      NE2d at 981; Houston, 602 P2d at 792; Pratt, 398 A2d at 424-425.



      8
       The State contends that when a criminal defendant raises a defense challenging
his mental capacity, he waives any physician-patient privilege, and that confidential
communications between a psychologist and a client enjoy the same status as those
between attorney and client. See State v. Herendeen, 279 Ga. 323, 327 (613 SE2d
647) (2005). However, the issue of a physician-patient privilege is not before us
because the privilege only arises when the client is being seen for treatment, which
did not occur in this case. See Rogers v. State, 282 Ga. 659 (6) (b) (653 SE2d 31)
(2007).
                                            16
Additionally, without the protection of privilege, the defendant’s attorneys

run the risk that the psychiatric expert they have hired to evaluate the

defendant will render an opinion inconsistent with the defense’s insanity

theory and the expert will then be made an involuntary witness for the

State. Alvarez, 519 F2d at 1046-1047.9 We are mindful of the prejudice

that would result if the trier of fact learns that a mental health

professional, who is testifying for the State, was originally consulted and

then rejected by the defense. Knuckles, 650 NE2d at 981; Pratt, 398 A2d

at 425. The attorneys must be free to make an informed judgment about

the best course for the defense and should not be restricted from

consulting multiple experts holding possibly conflicting views due to the

fear that they are creating a witness for the State. Alvarez, 519 F2d at

1047; Knuckles, 650 NE2d at 981; Pratt, 398 A2d at 425.           For these

reasons, we align ourselves with other jurisdictions that have rejected a

waiver of attorney-client privilege merely because the defendant has

placed his sanity at issue. See Alvarez, 519 F2d at 1046-1047; Knuckles,



9
    As discussed infra, this is essentially what occurred here.
                                         17
      650 NE2d at 980-981; Houston, 602 P2d at 791-792; Pratt, 398 A2d at

      424-426.

             Finally, the State argues that any error in providing it access to the

      doctors’ files and in allowing them to testify was harmless. We disagree.

      The State used the evidence from Dr. Rand Dorney and Dr. Thomas to

      argue that Neuman was malingering and to impeach the statements

      Neuman made to defense expert witnesses who evaluated his sanity. The

      State cross-examined both doctors on the flaws in their assessments,

      including brevity and a lack of thoroughness, as well as on the issue of

      malingering. The State also quoted from Dr. Thomas’ notes during its

      closing argument to support the theory that Neuman was lying or faking

      his symptoms of mental illness.             In addition, the jury specifically

      requested to see Dr. Thomas’ notes, which contained statements that

      Neuman was possibly malingering and that Neuman had told Dr. Thomas

      that he knew what he had done was wrong.10 This evidence was directly

      10
        Neuman objected to sending these notes to the jury. After hearing argument
on the issue and further probing of the jury, the court seemed satisfied that the jury
no longer wanted to see the notes, and therefore, they were not sent out to the jury.
However, the jury’s specific request shows that Dr. Thomas’ evaluation may have
factored into their deliberations.
                                             18
      contrary to the conclusions reached by Neuman’s expert witnesses. In this

      way, Dr. Rand Dorney and Dr. Thomas, although engaged by the defense

      to evaluate Neuman, became involuntary witnesses for the State, whose

      testimony, at least in part, ultimately undercut Neuman’s defense. See

      Alvarez, 519 F2d at 1047; Knuckles, 650 NE2d at 981; Pratt, 398 A2d at

      425. Thus, we reject the State’s contention that Dr. Rand Dorney’s and

      Dr. Thomas’ testimony was merely cumulative of other evidence and that

      any error was harmless.

             Accordingly, we conclude that the trial court erred in disclosing to

      the State Dr. Rand Dorney’s and Dr. Thomas’ notes and records

      concerning Neuman. This evidence was not harmless, and therefore, we

      must reverse Neuman’s conviction.

             3. We now address Neuman’s only other enumeration of error that

      may recur on retrial.11 Neuman argues that the trial court erred by not


      11
         To be clear, we do not address Neuman’s contentions that (1) the trial court
erred by failing to allow a witness to testify about what happened with Sneiderman’s
wife outside the courtroom after the witness testified; and (2) the trial court erred in
its failure to grant a new trial after it was disclosed that the State had used testimony
from Sneiderman’s wife during Neuman’s trial and that she was later convicted of
perjury for this testimony.
                                              19
      allowing the defense to introduce statements from Dr. George Warsaw, a

      psychotherapist. In the months prior to the shooting, Neuman and his

      wife participated in joint marital counseling sessions as well as individual

      counseling sessions with Dr. Warsaw. Neuman intended for his expert

      witness to state that she based her opinion in part on statements that

      Neuman’s wife made to Dr. Warsaw, which Dr. Warsaw then recorded in

      his files. Neuman contends that the statements were not hearsay because

      they were made for medical diagnosis or treatment, see former OCGA §

      24-3-4,12 and even if they were hearsay, his expert may rely on hearsay to

      form the basis for her opinions. See former OCGA 24-9-67.13

             However, we agree with the State that communications between Dr.

      Warsaw and Neuman’s wife were privileged. Former OCGA § 24-9-21

      (7),14 in effect during Neuman’s trial, protected as privileged

      communications between a patient and a licensed professional counselor


      12
        Effective for proceedings on and after January 1, 2013, this exception is now
codified at OCGA § 24-8-803 (4).

      Effective for proceedings on and after January 1, 2013, this is now codified
      13


at OCGA § 24-7-707.

      Effective for proceedings on and after January 1, 2013, this is now codified
      14


at OCGA § 24-5-501 (7).
                                            20
      during the psychotherapeutic relationship.15 The privilege is held only by

      the patient, and therefore, only the patient may waive it. Cooksey v.

      Landry, 295 Ga. 430 (2) (761 SE2d 61) (2014). It is clear from the record

      that although Neuman’s wife waived any privilege with regard to the joint

      counseling sessions she and Neuman attended with Dr. Warsaw, she did

      not waive any privilege regarding her individual sessions with Dr.

      Warsaw. Thus, statements she made during those individual sessions are

      privileged, and the trial court properly excluded them.

            Judgment reversed. All the Justices concur, except Melton, J., who

      dissents.




            MELTON, Justice, dissenting.

            Because there is nothing unclear about Neuman’s waiver of

      confidentiality with respect to his communications with Dr. Thomas and

      Dr. Rand Dorney, I cannot agree with the majority’s erroneous conclusion


       Dr. George Warsaw identifies himself as a psychotherapist with a Ph.D. in
      15


counseling and psychological services. Regardless of whether he is actually a
psychologist, psychiatrist, a social worker, or some other therapist, communications
between him and his patient would be covered by the privilege. See former OCGA
§ 24-9-21 (5)-(7) (now OCGA § 24-5-501 (5)-(7)).
                                            21
that these communications were protected by attorney-client privilege. I

therefore must respectfully dissent.

      As the majority points out, Neuman signed a form when he met with

Dr. Thomas and Dr. Rand Dorney at the jail, and this form stated in part:

      You have been referred by Mr. Robert Rubin for an
      independent medical examination. The purpose of this
      examination is to [sic] criminal responsibility & psych
      testing. The examination is not confidential, nor is it for the
      purpose of treatment. Anything we discuss in the examination
      may be included in the written report or may be disclosed in
      court. Therefore, nothing is off the record and anything you
      say or do during the evaluation is not a secret. When the
      evaluation is complete a written report will be provided to
      your attorney. You do not have to participate in the
      examination or answer any questions you do not wish to
      answer. If you have questions or concerns you may ask at any
      time and if you want to stop the examination, you may stop
      at any time.

This document speaks for itself, and the majority has not given any

persuasive reason to support its conclusion that the document would

somehow do anything other than convey a clear intention to show that the

communications between Neuman and Drs. Thomas and Rand Dorney

were “not confidential.” It does not matter that this form “was the only

[one] that [Dr. Rand Dorney] had [available] at the time.” Maj. Op. at 507.

What matters is that this is the document that was actually used, and that

                                    22
this specific document signed by Neuman informed him that “nothing

[was] off the record and anything [he said] or d[id] during the evaluation

[was] not a secret.” Nor does it matter that the written report from the

evaluation was to be provided to Neuman’s attorneys, because the form

clearly stated that anything included in the written report from the

evaluation may also “be disclosed in court.” The fact that the attorneys

would receive the report first is to be expected, but it does nothing to

change the fact that the waiver form indicated that any such report could

also be later disclosed in court and would not otherwise be confidential.

      Furthermore, because Dr. Rand Dorney and Dr. Thomas met with

Neuman at the jail to specifically discuss Neuman’s test results that were

included in their records and notes, it cannot be said that the form’s

statement that “[a]nything . . . discuss[ed] . . . may be included in [a]

written report or may be disclosed in court” was not broad enough to

cover the entirety of the communications between Neuman and the

doctors. Indeed, the prior communications between Neuman and Drs.

Rand Dorney and Thomas only served as the basis for any written

materials that the waiver form made clear would not be confidential. The


                                   23
majority’s efforts to minimize the impact of this waiver form are

unpersuasive.

      In this connection, contrary to the majority’s reasoning, the waiver

form simply does not say that Neuman was only waiving “his confidential

communications as necessary to carry out his representation.” Maj. Op. at

507. The form states much more broadly that the communications were

“not confidential” and that “[a]nything” discussed “may be disclosed in

court,” without specifying that only Neuman’s attorneys would be

authorized to make such court disclosures. Further underscoring the broad

nature of the waiver, the form then goes on to indicate that “nothing is off

the record” and that anything said or done with Drs. Rand Dorney and

Thomas would “not [be] a secret.” In the absence of this waiver form

signed by Neuman, I would agree with the majority that the

communications between Neuman and Drs. Rand Dorney and Thomas

were protected by attorney-client privilege. However, I cannot ignore the

plain language of the broadly drafted waiver form indicating otherwise.

The majority, on the other hand, is straining to narrowly interpret the plain

language of the waiver form in an effort to broaden the scope of the


                                     24
attorney-client privilege here when we should instead be construing the

attorney-client privilege as narrowly as possible:

      The attorney-client privilege protects communications
      between the client and the attorney that are intended to be
      confidential; the protection does not extend to
      communications which are not of a confidential nature. . . .
      Indeed, the statutes outlining the attorney-client privilege are
      not broadly construed; the attorney-client privilege embodied
      in [former] OCGA § 24-9-24 has been confined “to its
      narrowest permissible limits.” Inasmuch as the exercise of the
      privilege results in the exclusion of evidence, a narrow
      construction of the privilege comports with the view that the
      ascertainment of as many facts as possible leads to the truth,
      the discovery of which is the object of all legal investigation.

(Citation and punctuation omitted; emphasis supplied.) Davis v. State, 285

Ga. 343, 347 (6) (676 SE2d 215) (2009) (Letters that did not contain

confidential information and were not between client and his attorneys,

but were between private investigator and client’s attorneys, were not

protected by attorney-client privilege). Because I believe that the majority

is incorrect for having concluded that the notes and records of Drs. Rand

Dorney and Thomas were subject to the attorney-client privilege under the

circumstances of this case, I must respectfully dissent.




                                    25
    Decided June 15, 2015 – Reconsideration denied July 13, 2015.

      Murder. DeKalb Superior Court. Before Judge Adams.

      Miller & Key, J. Scott Key; Peters, Rubin & Sheffield, Douglas N.

Peters, Robert G. Rubin, for appellant.

      Robert D. James, Jr., District Attorney, Anna G. Cross, Deborah D.

Wellborn, Assistant District Attorneys; Samuel S. Olens, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Clint C. Malcolm, Assistant

Attorney General, for appellee.




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