CARSON CITY – The Nevada Supreme Court has reversed 13 felony convictions of a Las Vegas mother because her lawyer violated attorney-client confidence.
Marilyn M. Toston had been arrested in 2010 and sentenced to up 120 months in prison for forging documents to take money out of the trust fund of her son.
The court said that her lawyer, Althea Gilkey, testified that Toston said she had illegally taken the money from the $800,000 trust of her son, of which she was the trustee.
Gilkey was the attorney for Toston in medical malpractice suits in which there was a $1.6 million settlement. After attorney fees and costs, there was $800,000 left that was put into a trust.
Toston reportedly first told Gilkey that her husband had taken the money. Later she changed her story and said she had taken the funds.
Gilkey related those conversations when she was a witness for the prosecution.
The Supreme Court said a client has a privilege to prevent his or her attorney from disclosing confidential communications between them.
The court said the confidence was broken in this case. “Not only did the attorney reassure Toston that she was her attorney and would protect her confidence, she also had an ongoing attorney-client relationship stemming from two medical malpractice settlements and a third case that was still active.”
In arguing for the convictions to be upheld, the Clark County District Attorney’s Office maintained the confidence was broken when Toston claimed her lawyer — Gilkey — had allegedly stolen the money.
Toston and Gilkey were both ordered to appear before District Judge Michelle Leavitt to explain why an annual accounting of the trust fund had not been filed. Toston did not show up.
Gilkey appeared and said she did not know where the money had gone. She was ordered by the district judge to do an accounting of the trust fund. During the examination Gilkey discovered that her signature had been forged to withdraw funds.
Gilkey, according to court briefs, felt she would be in trouble if she did not turn the information over to the judge as she was ordered.
Judge Leavitt then submitted the information to Metro Police. At a subsequent hearing before Judge Leavitt, Toston accused her attorney Gilkey of pilfering the money from the trust.
The Supreme Court said District Judge Douglas W. Herndon was wrong in permitting Gilkey to testify at trial about the money.
Toston was convicted of theft, forgery, burglary, embezzlement and obtaining money under false pretenses.
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