concurring, in part, and dissenting, in part.
I agree with the majority in reversing Sevachko’s perjury conviction. I also agree that, in prosecuting the perjury charge, the Commonwealth is collaterally estopped from prov*570ing that Sevachko was driving on a suspended license because that fact was previously determined in Sevachko’s favor in the earlier proceeding. However, in my view, the majority extends the holding in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), too far by completely barring the perjury prosecution. Accordingly, I dissent from that aspect of the opinion and write separately due to my concern that the majority’s holding will be incorrectly interpreted by trial judges to bar meritorious perjury prosecutions.
Collateral estoppel is a doctrine of fact preclusion. As the Supreme Court stated in Ashe, “when 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.” 397 U.S. at 443, 90 S.Ct. at 1194. The doctrine does not operate, contrary to the majority holding, to preclude a party from 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 v. Commonwealth, 220 Va. 412, 258 S.E.2d 567 (1979). Only where proof of the estopped fact is essential to proving an element of the newly charged offense or cause of action, as in Ashe, 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. In Ashe, the state failed to prove, in the first of a series of prosecutions, that Ashe was the robber. Because proof of that fact was necessary and essential to prove the subsequent robberies, the Court held that the state was collaterally estopped from proving that element in the subsequent proceedings.
In Simon, the district court acquitted the defendant of driving under the influence based on a finding that the evidence failed to prove that he was intoxicated. In a subsequent prosecution for involuntary manslaughter, the Commonwealth sought to establish, as the predicate for the involuntary manslaughter offense, that the defendant was driving while intoxicated. The Virginia Supreme Court held that the Commonwealth was collaterally es-topped from proving that the defendant was legally intoxi*571cated. However, the Court remanded the case and held that the Commonwealth was not precluded from prosecuting the defendant for involuntary manslaughter based on proof of other wrongful or negligent acts, including proof that the defendant’s driving or judgment was impaired by drinking. In determining that the Commonwealth was permitted to proceed on an alternative theory of involuntary manslaughter, the Court stated that “in order to bar a subsequent prosecution for a different offense arising out of the same transaction, a necessary element of the offense in the second trial must have been clearly adjudicated in the earlier proceeding.” 220 Va. at 415, 258 S.E.2d at 570. The Court reversed the case and remanded for further proceedings.
In my opinion, we should reverse and remand this case as the Virginia Supreme Court did in Simon. 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 éssential element of the perjury prosecution and that fact could have been proven by evidence other than proof that Sevachko was, in fact, driving. A line of cases cited by Judge Annunziata in her concurring opinion support the rationale and result that I find to be most sound. The Commonwealth is only estopped from proving that Sevachko was, in fact, driving but is not precluded from proving that he perjured himself in other respects, such as by discrediting his alibi that he was having his car repaired or by an admission from him that he had perjured himself. Even though the fact finder may in such situations incidentally or necessarily conclude that Sevachko was driving based on other proof that he perjured himself, the Commonwealth does not violate the constitutionally based collateral estoppel doctrine by proving, by such other evidence, that Sevachko lied when he testified that he was not driving. In short, the only bar created by the collateral estoppel doctrine in this case is that the Commonwealth cannot prove Sevachko perjured himself by proving that he was, in fact, driving. See United States v. Carter, 60 F.3d *5721532 (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, 84 Ill.App.3d 523, 40 Ill.Dec. 265, 405 N.E.2d 1357 (1980).
I reject the proposition, which is central to both Judge Bumgardner’s and Judge Annunziata’s analyses, that because the fact finder necessarily determined Sevachko’s credibility and determined that he had testified truthfully, the Commonwealth is estopped by the acquittal of proving he perjured himself in that proceeding. Again, their approaches carry the holding in Ashe v. Swenson to an illogical extreme; the holding in Ashe precludes the Commonwealth from relitigating the fact that Sevachko was driving, but it does not prevent the Commonwealth from proving perjury by other means. It is not the fact that the fact finder may have made a credibility determination that precludes the prosecution, but the fact that an essential issue has already been litigated that precludes the prosecution. If the credibility of the defendant was a dispositive and critical factor, we would have the anomalous situation of the person who had been acquitted by virtue of his false testimony being immune from a perjury prosecution, but the defendant who was convicted and, thus, found not credible would remain subject to prosecution. I would remand the case for further proceedings, if the Commonwealth be so advised.
Nevertheless, we must reverse the conviction, in my opinion, due to trial court error in admitting the testimony of Officer A.J. Gluba that Sevachko was driving on a suspended license on December 24, 1995. I agree that Ashe precludes use of Officer Gluba’s testimony that Sevachko was driving in order to prove Sevachko had testified falsely. The Commonwealth is estopped from proving or litigating a second time whether Sevachko was driving at the time of the charged offense. Thus, I would reverse on that ground and remand rather than dismiss.
*573Because I would reverse and remand this case, I find it necessary to address the question whether the trial court erred by admitting the testimony of Cynthia Murray, over Sevachko’s objection that her testimony was protected by the attorney-client privilege and thus, inadmissible. The facts viewed in the light most favorable to the Commonwealth, the prevailing party, proved that after Sevachko was charged with having driven on a suspended license, the general district court appointed Cynthia Murray to represent him. Prior to trial, Murray 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 a suspended license charge after testifying that he had not been driving on the date alleged.
Several months prior to Sevachko’s trial on the driving on a suspended license charge, Murray became employed with the Albemarle County Commonwealth’s Attorney’s office, the office that was prosecuting the driving case against Sevachko. Subsequent to Sevachko’s acquittal of those charges, Murray 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.” Murray and the Commonwealth’s Attorney then consulted the Code of Professional Responsibility and concluded that the Code required Murray to disclose to the circuit court what had occurred. Murray 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. Murray testified at trial voluntarily and did not assert the attorney-client privilege on behalf of her client. Sevachko objected, arguing that his confidential discussions with his attorney were protected by the attorney-client privilege. The trial judge ruled that Murray’s testimony did not violate the attorney-client privilege because it came within the crime-fraud exception, requiring disclosure of a party’s intention to commit a crime or a fraud upon the court.
*574The 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).
Murray disclosed two confidences that her client, 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 informed her that he was driving the automobile on the date charged. Second, she also disclosed that Sevachko told her he intended to testify untruthfully that he was not driving and, as a result of that disclosure, she sought and obtained leave of court to withdraw as Sevachko’s court-appointed attorney. We do not decide whether these disclosures to her employer violated the Code of Professional Responsibility DR 4-101 (1999); however, the disclosure to her employer resulted in Murray voluntarily disclosing the same evidence in the perjury prosecution against her former client. Thus, the issue on appeal is whether the disclosures and 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.
Clearly, Sevachko’s disclosure to Murray that he was driving on the date of the charged offense was the primary issue in the case and was made in relation to and during the attorney’s representation of her client. In my opinion, that communication was confidential and privileged and not subject to disclosure. See DR 4-101. The trial judge erred, in my *575opinion, by failing to recognize the attorney-client privilege and to sustain Sevachko’s objection to having his attorney disclose the confidence.
As to Murray’s testimony that Sevachko told her he was going to testify falsely, Murray would have been required by DR 4-101 to have disclosed any crime or fraud which Sevachko perpetrated upon the court during the course of Murray’s representation of him. Had she continued to represent Sevachko and had Sevachko persisted in the fraudulent or criminal course, Murray would have been required by DR 4-101 to prevent a crime or fraud from being perpetrated upon the court by disclosing the fraud to the court. However, here the crime or fraud that Sevachko allegedly perpetrated on the court occurred after, not during, Murray’s representation of Sevachko. Accordingly, the crime-fraud exceptions to the attorney-client privilege, which are embodied in DR 4-101(C)(3) and (D)(4), do not apply. Thus, in my opinion, the communications by Sevachko to Murray, which included his future intentions concerning the case, were still privileged. The trial court erred by holding that the communications were not protected by the attorney-client privilege.
In summary, because the Commonwealth was estopped from proving by Officer Gluba that Sevachko was driving and because Murray’s testimony was privileged, I concur in reversing the perjury conviction, but I dissent from the majority s holding that Sevachko’s acquittal of the driving on suspended license charge collaterally estopped the Commonwealth from prosecuting Sevachko for perjury. In my view, the Commonwealth could proceed with the perjury prosecution, provided it could do so without proving and relitigating the fact that Sevachko was driving. I would remand the case for such further proceedings as the Commonwealth may be so advised.