                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
          Annunziata, Bumgardner, Frank, Humphreys, Clements and
          Senior Judge Coleman ∗
Argued at Richmond, Virginia


STEVEN CHRISTOPHER SEVACHKO
                                                 OPINION BY
v.   Record No. 2513-98-2                 JUDGE SAM W. COLEMAN III
                                                APRIL 24, 2001
COMMONWEALTH OF VIRGINIA


                       UPON A REHEARING EN BANC

         FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                   James M. Lumpkin, Judge Designate

            Edmund R. Michie for appellant.

            Kathleen B. Martin, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     Steven Christopher Sevachko was convicted by a jury of

perjury, in violation of Code § 18.2-434.     The basis for the

perjury conviction was that Sevachko had testified falsely under

oath at his trial for driving on a suspended license when he

testified that he had not been driving.    The Commonwealth

attempted to prove that Sevachko had testified falsely about not

driving by proving through the arresting officer that Sevachko


     ∗
       Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
was, in fact, driving at the time -- a fact the Commonwealth had

previously attempted to prove through the officer's testimony in

Sevachko's trial for driving on a suspended license.

     A panel of this Court unanimously reversed the perjury

conviction, holding that the Commonwealth was collaterally

estopped from relitigating whether Sevachko was in fact driving.

The panel, however, was divided upon the question whether the

prosecution should be dismissed or remanded for further

proceedings.   See Sevachko v. Commonwealth, 32 Va. App. 561, 529

S.E.2d 803 (2000).   We granted rehearing en banc to resolve that

question.

     Sevachko argues that the doctrine of collateral estoppel not

only precludes the Commonwealth, in the perjury prosecution, from

proving the underlying controverted fact from the original

prosecution that he was driving a motor vehicle on a particular

date, but also precludes the perjury prosecution altogether.    Upon

rehearing en banc, we hold that the Commonwealth was collaterally

estopped from proving in the perjury prosecution that Sevachko

drove his motor vehicle on the date in question.   Therefore,

because the Commonwealth introduced evidence to that effect and

undertook to relitigate that fact in the perjury prosecution, we

reverse the perjury conviction.   However, because the Commonwealth

is not collaterally estopped from proving that Sevachko perjured

himself in the prior proceeding as to a material fact by proving


                              - 2 -
facts other than that he was driving on the date in question, we

remand the case to the trial court for such further proceedings as

the Commonwealth may be advised.

     Additionally, Sevachko argues that the trial court erred in

the perjury prosecution by admitting the testimony of his former

attorney, who represented him in the driving on a suspended

license case.   Sevachko contends that allowing his former attorney

to testify about statements he had made to the attorney during the

course of the attorney's representation of him in the prior

proceeding violated the attorney-client privilege and, thus, was

inadmissible.   Because this issue is likely to arise again on

remand if the Commonwealth elects to pursue the prosecution, we

address that question.

                           I.   BACKGROUND

     Sevachko was charged with having driven on a suspended

license.   The general district court appointed an attorney to

represent Sevachko.   Prior to trial, the attorney informed the

trial court that she was confronted with a "dilemma," and the

trial court permitted her to withdraw.   Sevachko, who had a second

attorney appointed to represent him, was subsequently found not

guilty of the driving on suspended license charge after testifying

that he had not been driving on the date alleged.

     Several months before Sevachko's driving on a suspended

license trial, his first court-appointed attorney became


                                - 3 -
employed with the Albemarle County Commonwealth's Attorney's

Office, the same office that was prosecuting the driving on a

suspended license case against Sevachko.   Following Sevachko's

acquittal of those charges, the first court-appointed attorney

heard the case being discussed in the office.   She made "an

extemporaneous statement to [her] boss" that Sevachko "was a

former client of mine, I remember that case, he told me that he

was going to say he wasn't driving."   Sevachko's former

court-appointed attorney and the Commonwealth's Attorney then

consulted the Code of Professional Responsibility and concluded

that the Code required the attorney to disclose to the circuit

court what had occurred.    The attorney filed a report with the

Charlottesville Police Department and the City of

Charlottesville Commonwealth's Attorney's Office and, as a

result, the Commonwealth's Attorney indicted Sevachko for

perjury.

     At the perjury trial, Sevachko's former court-appointed

attorney testified voluntarily for the Commonwealth and did not

assert the attorney-client privilege on behalf of her client.

Sevachko objected to her testifying on the ground that his

confidential discussions with his attorney were protected by the

attorney-client privilege.   The trial court ruled that the

privilege did not apply to protect a fraud that had been

perpetrated on the court.    The former attorney testified that,


                              - 4 -
during the course of her representation of Sevachko for the

driving on a suspended license charge, Sevachko admitted he was

driving.    She advised Sevachko to plead guilty based on his

admission.   She testified that Sevachko then stated, "What will

happen if I say I wasn't driving."      She advised Sevachko that

the statement would be perjury and that if he persisted in that

defense, she would seek leave to withdraw as his counsel.        She

testified that Sevachko said he was going to testify that he was

not driving.    The attorney then sought, and was granted, leave

to withdraw.

                             II.   ANALYSIS

                        A.   Collateral Estoppel

     We first consider whether the doctrine of collateral

estoppel precluded the perjury prosecution or merely precluded

the Commonwealth from proving that Sevachko was driving on the

date in question.

     Collateral estoppel is a doctrine of fact preclusion that

is "embodied in the fifth amendment protection against double

jeopardy."     Simon v. Commonwealth, 220 Va. 412, 415, 258 S.E.2d

567, 569 (1979).    "[W]hen an issue of ultimate fact has once

been determined by a valid and final judgment, that issue cannot

again be litigated between the same parties in any future

lawsuit."    Ashe v. Swenson, 397 U.S. 436, 443 (1970).    The

doctrine does not, however, operate to preclude a party from


                                - 5 -
proving the elements of a cause of action or offense by other

evidence independent of the fact which the party is collaterally

estopped from proving.    See Simon, 220 Va. at 419, 258 S.E.2d at

572.   Only where proof of the estopped fact is essential to

proving an element of the newly charged offense or cause of

action does the doctrine of collateral estoppel also preclude

proof of an essential element of the other offense, thereby

foreclosing a prosecution for the other offense.      See Ashe, 397

U.S. at 445–47 (holding that the state was collaterally estopped

from proving that the defendant was the robber in the subsequent

proceedings because the state failed to prove, in the first of a

series of prosecutions, that the defendant was the robber, and

proof of that fact was necessary and essential to prove the

subsequent robberies).   "The party seeking the protection of

collateral estoppel carries the burden of showing that the

verdict in the prior action necessarily decided the precise

issue he seeks to now preclude."      Rogers v. Commonwealth, 5 Va.

App. 337, 341, 362 S.E.2d 752, 754 (1987).

       In the trial for driving on a suspended license, the fact

about which Sevachko allegedly testified falsely was that he was

not driving on the offense date.      The dissenters reason that any

evidence which proved that Sevachko testified falsely as to that

fact must necessarily prove, at least by implication, that he

was driving on the offense date -- the very fact the


                              - 6 -
Commonwealth is estopped from relitigating.   However, that

reasoning by the dissenters would preclude every perjury

prosecution against a former defendant who was acquitted and who

testified falsely about an element of the Commonwealth's case.

That application of the doctrine of collateral estoppel would,

on the other hand, not preclude a perjury prosecution against a

defendant who had testified falsely but had been convicted.    The

doctrine of collateral estoppel is neither that restrictive nor

should it be applied in a manner to reach such an anomalous

result.

     Here, proof that Sevachko was driving on the date of the

charged offense was not a necessary and essential element to

prove the perjury offense.   Whether Sevachko testified falsely

about driving was the essential element of the perjury

prosecution and that fact could have been proven by evidence

other than proof that Sevachko was, in fact, driving.    While the

Commonwealth was estopped from proving in the perjury

prosecution the fact that Sevachko was driving, the Commonwealth

was not precluded from proving by other means that he perjured

himself, such as by discrediting his alibi that he was having

his car repaired, by an admission from him that he had perjured

himself, or perhaps by evidence that he admitted to others after

the fact that he had testified falsely.   Even though the fact

finder may, in such situations, coincidentally or necessarily


                             - 7 -
conclude that Sevachko was driving when the Commonwealth proved

that he testified falsely, the Commonwealth does not violate the

constitutionally based collateral estoppel bar by proving, by

such other evidence, that Sevachko implicitly lied when he

testified that he was not driving.     Therefore, the bar created

by the collateral estoppel doctrine in this case is that the

Commonwealth cannot, as it did here, prove Sevachko perjured

himself by relitigating and proving that he was, in fact,

driving.   See United States v. Carter, 60 F.3d 1532 (11th Cir.

1995); United States v. Haines, 485 F.2d 564 (7th Cir. 1973);

Adams v. United States, 287 F.2d 701 (5th Cir. 1961); State v.

Hutchins, 746 A.2d 447 (N.H. 2000); People v. Briddle, 405

N.E.2d 1357 (Ill. App. Ct. 1980).

     At trial, the Commonwealth introduced Officer A.J. Gluba's

testimony that Sevachko was driving on a suspended license,

along with his former attorney's testimony, to prove that

Sevachko testified falsely in the prior proceeding.    Because we

hold that the Commonwealth is estopped from proving that

Sevachko was driving, we find that the trial court erred in

admitting Gluba's testimony.

     Accordingly, we reverse the conviction and remand the case

for further proceedings if the Commonwealth be so advised.     See

Simon, 220 Va. at 419-20, 258 S.E.2d at 572-73 (remanding case

and holding that Commonwealth is not precluded from prosecuting


                               - 8 -
the defendant in a subsequent prosecution based on other

evidence independent of the fact which the Commonwealth is

collaterally estopped from proving).

                    B.   Confidential Communication

        "The attorney-client privilege is the oldest of the

privileges for confidential communications known to the common

law."     Upjohn v. United States, 449 U.S. 383, 389 (1981).

"Confidential communications between attorney and client made

because of that relationship and concerning the subject matter

of the attorney's employment 'are privileged from disclosure,

even for the purpose of administering justice.'"      Commonwealth

v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301 (1988)

(citations omitted).

             The relationship between an attorney and
             [her] client is a sacred one. In that
             relationship, the client must be secure in
             the knowledge that any information he
             reveals to counsel will remain confidential.
             The confidentiality of the attorney-client
             relationship is severely compromised, if not
             destroyed, when, after representing a
             client, a lawyer joins in the criminal
             prosecution of that client with respect to
             the identical matter about which the
             attorney originally counseled the client.
             Such switching of sides is fundamentally
             unfair and inherently prejudicial. Without
             question, the client's right to a fair
             trial, secured by the due process clauses of
             the fifth and fourteenth amendments, is
             compromised under these circumstances.

United States v. Schell, 775 F.2d 559, 565 (4th Cir. 1985).

"The proponent has the burden to establish that the

                                - 9 -
attorney-client relationship existed, that the communications

under consideration are privileged, and that the privilege was

not waived."    Edwards, 235 Va. at 509, 370 S.E.2d at 301.

     Sevachko's former attorney disclosed two confidences that

Sevachko had confided in her concerning the subject of the

litigation.    First, she disclosed to her employer, the Albemarle

County Commonwealth's Attorney, that Sevachko admitted to her he

was driving the automobile on the date charged.    Second, she

disclosed that Sevachko told her he intended to testify

untruthfully that he was not driving.   As a result of that

disclosure, she sought and obtained leave of court to withdraw

as Sevachko's court-appointed attorney. 1   Thus, the issue on

appeal is whether the communications by Sevachko to his attorney

were privileged and whether the trial judge erred by admitting

the evidence over Sevachko's objection in violation of that

privilege.


     1
       A lawyer is prohibited from knowingly revealing a
confidence or secret of her client, except, among other things,
where the client has expressed his intention "to commit a crime
and the information is necessary to prevent the crime" or where
the lawyer has information which "clearly establishes that the
client has, in the course of the representation, perpetrated a
fraud related to the subject matter of the representation upon a
tribunal." Code of Prof. Resp. DR 4-101(C), (D) (1999). We do
not decide whether counsel's disclosures violated DR 4-101. See
Fisher v. Commonwealth, 26 Va. App. 788, 794, 497 S.E.2d 162,
165 (1998) (questioning "'the propriety of equating the force of
a disciplinary rule with that of decisional or statutory law'"
(citation omitted)).



                              - 10 -
     We hold that Sevachko's disclosure to his attorney that he

was driving on the date of the charged offense was made in

relation to and during the course of the attorney's

representation of her client and that the communication was

confidential and privileged and not subject to disclosure.     See

Edwards, 235 Va. at 508-09, 370 S.E.2d at 301.   However, we hold

that Sevachko's disclosure to his attorney that he was going to

testify untruthfully that he was not driving was not privileged,

and, thus, the statement was admissible under the crime-fraud

exception to the privilege.

     "[I]t is settled under modern authority that the

[attorney-client] privilege does not extend to communications

between attorney and client where the client's purpose is the

furtherance of a future intended crime or fraud."   1 McCormick

on Evidence § 95, at 380 (John W. Strong, ed., 5th ed. 1995).

The Supreme Court in Seventh District Committee v. Gunter, 212

Va. 278, 183 S.E.2d 713 (1971), applying this principle, held

that "[t]he protection which the law affords to communications

between attorney and client has reference to those which are

legitimately and properly within the scope of a lawful

employment and does not extend to communications made in

contemplation of a crime, or perpetration of a fraud."     Id. at

287, 183 S.E.2d at 719 (emphasis added) (citing Strong v. Abner,

105 S.W.2d 599 (Ky. 1937)).


                              - 11 -
     In Gunter, the defendant, an attorney, was charged with

malpractice and unethical and unprofessional conduct.    The

Seventh District Committee of the Virginia State Bar (Committee)

was assigned to investigate the alleged misconduct.   Gunter

employed counsel to represent him at the Committee hearing to

defend the allegations of malpractice and unethical and

unprofessional conduct.   During his strategy meetings with his

attorneys, Gunter intentionally misrepresented to his attorneys

a material and critical fact.   Believing their client's

representation, Gunter's attorneys perpetuated the

misrepresentation to the Committee.    Gunter was fully aware of

his attorneys' intended representations and was fully apprised

of their strategy.   Before final resolution of the matter before

the Committee, Gunter's attorneys learned of their client's

misrepresentation and sought leave to withdraw.   At a subsequent

hearing before the Committee, after Gunter's counsel withdrew,

Gunter told the Committee that he initially considered

misrepresenting the facts to the Committee but that he changed

his mind and was coming forward with the truth of his own

volition.   As a result of these developments, the Committee

filed a complaint against Gunter alleging that he, for the

purpose of misleading the Committee, altered, changed, and

falsified a date upon a statement, which was material to the

Committee's investigation of Gunter.


                             - 12 -
     At trial, the court admitted evidence from Gunter's

attorneys detailing communications Gunter had with his attorneys

which would prove that Gunter was aware of their strategy and

that Gunter gave his attorneys false information knowing that

the attorneys would misinform the Committee.    The Supreme Court

affirmed the trial court's ruling that the evidence was

admissible, finding that the "communications alleged to be

privileged were made in the furtherance of the commission of an

intended fraud on the Committee."     212 Va. at 288, 183 S.E.2d at

719-20.   The Supreme Court stated, "'[T]he perpetration of a

fraud is outside the scope of the professional duty of an

attorney and no privilege attaches to a communication and

transaction between an attorney and client with respect to

transactions constituting the making of a false claim or the

perpetration of a fraud.'"   212 Va. at 287, 183 S.E.2d at 719

(quoting Kneale v. Williams, 30 So.2d 284, 287 (Fla. 1947) (en

banc)).

     Here, Sevachko's disclosure to his attorney regarding his

intent to commit perjury was made prior to trial and in

contemplation of committing perjury and a fraud upon the court.

The privilege does not permit a litigant to commit a fraud upon

a court and, therefore, to that end, the privilege does not

apply to communications, which if not revealed would hamper the

administration of justice.   See Gunter, 212 Va. at 287-88, 183


                             - 13 -
S.E.2d at 719.   Accordingly, the attorney-client privilege did

not attach to Sevachko's statement to his attorney pertaining to

his intent to commit perjury; therefore, the statement was

admissible in the perjury prosecution.

     Accordingly, we hold that the trial court erred by admitting

Sevachko's communication to his attorney that he was, in fact,

driving, because the communication was made in the course of the

attorney-client relationship and it concerned the subject matter

of the attorney's employment; thus, it was privileged from

disclosure.   However, Sevachko's communication to his attorney

that he intended to commit perjury was not protected by the

attorney-client privilege because the statement was made in

contemplation of a crime and, thus, was admissible.

                                            Reversed and remanded.




                             - 14 -
Bumgardner, J., with whom Benton, Annuziata and Clements, JJ.,
 join, dissenting.

     I respectfully dissent from the decision to permit another

trial.   The unusual procedural posture of this case dictates

dismissal.   The general verdict rendered in criminal trials is a

curtain that shrouds the components of the decision returned.

Normally, a trial record would not reveal whether the trial

resolved a single issue and a single fact.   However, this record

is an exception.

     The sole issue at the first trial was whether the defendant

drove his automobile on December 24, 1995.   In the perjury

trial, the Commonwealth had to prove the defendant made a false

statement under oath.   The only evidence offered to prove the

defendant lied at the first trial was the admission to his

attorney that he did drive.   That was the sole specification of

perjury alleged, argued, or attempted at trial.

     Dismissal would not, as the majority suggests, preclude

every perjury prosecution of a defendant who testified falsely.

Dismissal would simply acknowledge that collateral estoppel must

bar retrial in the rare situation that permits ascertaining a

single fact was disputed in each prosecution, and that fact was

the same in both.

     I do not address the issue of attorney-client privilege

because collateral estoppel precludes another trial.



                              - 15 -
