“Speak Up or Waive It” – The New Wisconsin Rule on Confidential Attorney–Client Communications During Remote Proceedings

Introduction

In State v. Kordell L. Grady, 2025 WI 22, the Wisconsin Supreme Court confronted the increasingly common problem of how to protect attorney–client confidentiality when a criminal defendant appears by video and counsel appears in-person. The majority held that due process is not violated, and attorney–client privilege is not triggered, when a defendant fails to affirmatively request a private channel before speaking to counsel in open court—even if the conversation occurs “off the record”.

The case arose out of a restitution hearing where Mr. Grady, appearing from prison via Zoom, interrupted counsel’s argument to confer with her. The circuit court warned him that everyone could hear; nevertheless, the State later used his statements to argue ability to pay, and the court ordered full restitution. Grady claimed a denial of due process and a breach of the statutory attorney–client privilege. The Supreme Court affirmed the lower courts, sharpening a rule that now places the burden squarely on defendants (and their lawyers) to request confidential accommodations in remote or hybrid hearings.

Summary of the Judgment

• No Due-Process Violation: Because the defendant never asked for privacy and was warned that “everybody could hear,” the proceeding was “fundamentally fair.”
• Privilege Not Invoked: Under Wis. Stat. § 905.03(2), communications are privileged only if “intended to be confidential.” The circuit court’s factual finding that Grady lacked such intent was not clearly erroneous.
• Ineffective Assistance Claim Rejected: Even if counsel stipulated to an arguably inflated restitution amount, Grady could not show prejudice; the record proved the damage figure was accurate.
• Precedential Holding: Courts need not proactively create private channels during virtual hearings; the defendant must request them. Absent such a request, statements audible to others lose confidentiality and privilege.

Analysis

1. Precedents Cited and Their Influence

• Mathews v. Eldridge, 424 U.S. 319 (1976) – Provides the flexible balancing test for procedural due process. The Court implicitly applied Mathews but concluded that the risk of erroneous deprivation was low because Grady could have asked for privacy.
• Strickland v. Washington, 466 U.S. 668 (1984) – Governs ineffective-assistance claims; used to reject Grady’s Machner-hearing demand.
• Wisconsin Cases on Attorney-Client Privilege – Lane v. Sharp Packaging, Meeks, and others reiterate that intent to keep communications confidential is essential. The majority found those cases dispositive of privilege.
• Statutory Framework – Wis. Stat. §§ 885.50-885.64 (videoconferencing) and § 885.54(1)(g) (private channel requirement). The majority silently limited their force by treating the right to a private channel as waivable by inaction.

2. The Court’s Legal Reasoning

The decision rests on two pillars:

1. Standard of Review Deference – Factual findings (intent) are reviewed for clear error. Once the circuit court found no intent, appellate review virtually ended.
2. Waiver Through Silence – Due process protects against actual unfairness, not hypothetical better practices. Because Grady did not request privacy, the court had no constitutional duty to stop the hearing, create a breakout room, or clear the courtroom.

3. Impact of the Judgment

• Remote Hearings State-Wide: Judges are no longer constitutionally obliged to create private channels sua sponte. Responsibility shifts to defense counsel to invoke § 885.54(1)(g).
• Attorney-Client Privilege Narrowed in Practice: Conversations over a courtroom’s public address or Zoom speaker, even when the judge says “off the record,” will not be protected unless an intent to exclude third parties is evident.
• Litigation Strategy: Defense lawyers must build an explicit record—ask for a breakout room or headset and note objections if denied.
• Judicial Administration: Although the concurring opinion offers “best practices,” they are advisory. The bar for constitutional error is now higher.

Complex Concepts Simplified

• Due Process (Procedural): The constitutional guarantee that legal proceedings will be fundamentally fair. It does not mandate perfect procedures—only that essential fairness is met.
• Clear-Error Review: Appellate courts accept a trial court’s factual findings unless there is no reasonable evidence to support them.
• Attorney-Client Privilege: A statutory rule that protects confidential communications for legal advice. If a third party can hear, the communication is usually not “confidential.”
• Machner Hearing: A Wisconsin evidentiary hearing where trial counsel testifies regarding ineffective-assistance allegations.
• Breakout Room (Zoom): A digital side-room where only specific participants can be heard, analogized to the hallway conference in physical court.

Conclusion

State v. Grady cements a pragmatic but defendant-unfriendly rule for the videoconference era: Confidentiality must be claimed, not presumed. Unless a litigant expressly requests a private line, statements made in a virtual courtroom are fair game for the State and unprotected by privilege. While concurring and dissenting opinions warn of the risks to fairness and propose best practices, the binding precedent is clear—silence equals waiver. Defense counsel and trial judges must adjust; otherwise, inadvertent disclosures will continue to shape outcomes, and appellate courts will likely uphold them under the deferential clear-error standard.