In the Supreme Court of Georgia



                                                     Decided: June 15, 2015


                   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
      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.



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
January 20, 2015.
                                         2
      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

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

                                        3
illness involving manic episodes, delusional thinking, or hallucinations, and that

to the contrary, Neuman was high functioning.

      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


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

psychological evaluation of Neuman to assess his criminal responsibility. After

this expert’s evaluation, Neuman changed his plea of not guilty to not guilty by

a 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

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

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 Ass’n 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



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

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 Ass’n 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 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

                                          7
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

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

                                        8
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

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



        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
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

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

                                       10
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

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

                                        11
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 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

                                       12
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 Rule of Professional

Responsibility 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 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

                                        13
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

      We find that the communications between Neuman, Dr. Thomas, Dr. Rand



      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
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.
                                        14
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 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

      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).
      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).
                                           15
attorneys to consult with the non-testifying expert in order to familiarize

themselves with central medical concepts, assess the soundness and advantages

of a 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. 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



      9
          As discussed infra, this is essentially what occurred here.
                                            16
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 1046-47; Knuckles, 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

                                       17
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 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

      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
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 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

      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.
      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.
                                           19
        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 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.


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


at OCGA § 24-5-501 (7).

       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)).
                                        20
                   S15A0011. NEUMAN v. THE STATE.


      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 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

                                      21
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 13. What matters is that this is the document that was

actually used, and that 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


                                         22
between Neuman and the doctors. Indeed, the prior communications between

Neuman and Drs. Rand Dorney and Thompson only served as the basis for any

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

majority’s efforts to mimimize 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 13.

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 Thompson 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

Thompson 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


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of the waiver form in an effort to broaden the scope of the 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 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) (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 Thompson were subject to the attorney-client

privilege under the circumstances of this case, I must respectfully dissent.




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