Thursday, April 26, 2018

Attorney Not Compelled To Give Evidence Against Bail Jumping Client

The Montana Supreme Court granted a writ to prevent an attorney from providing testimony in a bail jumping case

Petitioner seeks a writ of supervisory control concerning the Third Judicial District Court’s order granting the State’s motion in limine that compels Shannon Sweeney (Sweeney), an attorney, to testify against her client, Dakota James McClanahan (McClanahan), on a bail jumping charge.

The story

In May 2016, Sweeney was appointed to represent McClanahan, who was charged with possession of dangerous drugs with intent to distribute. McClanahan pled not guilty and was ultimately released after he signed the District Court’s Release Order and Conditions of Release. McClanahan did not show up to the final pretrial conference on November 16, 2016, and was subsequently charged with bail jumping.

Ed Sheehy was appointed to represent McClanahan on the bail jumping charge, and he moved to dismiss. Sheehy argued McClanahan did not have notice of the November 16, 2016 hearing. Knowledge of the final pretrial conference is a necessary element of the bail jumping charge. The District Court denied McClanahan’s motion to dismiss, concluding that the State should be allowed to introduce evidence at trial as to what, if anything, Sweeney told McClanahan about appearing at the final pretrial conference on November 16, 2016. Shortly thereafter, Sweeney sent a letter notifying the State that she would assert attorney-client privilege for any line of questioning about communications with McClanahan and the preparation of his defense.

The State filed a motion in limine and the District Court determined that Sweeney would have to testify as to whether she told McClanahan about the final pretrial conference. The State issued a subpoena directing Sweeney to appear and testify at trial. Sweeney made a motion to quash the subpoena, which was denied by the District Court.

The attorney appealed and the court held

Regardless of whether the subject statements from counsel to client in this case constituted “advice given” for purposes of § 26-1-803(1), MCA, compelling counsel to testify under these circumstances would violate her duty of undivided loyalty to McClanahan.

Given that advising a client of a hearing date in a criminal case is inseparably intertwined with the concept of legal advice and that compelled inquiry of counsel to distinguish between advice and non-advice would vitiate counsel’s duty of undivided loyalty to the client, we hold that the District Court erred when it denied the motion to quash the subpoena compelling Sweeney to submit to examination on whether she advised her client of the fate of his final pretrial conference. Furthermore, § 26-1-803(1), MCA, prohibits the District Court from compelling Sweeney to testify about communications made with McClanahan without his consent when her testimony would prove the elements of a new charge against McClanahan. We expressly limit this holding to the unique facts and circumstances of this case.

Concurring opinion

My concern in this case is the statute’s prohibition on examination of an attorney about “the advice given to the client.” During oral argument, the State indicated that it wanted to ask Sweeney two questions. The first question was whether she had communicated the date of the final pretrial conference to McClanahan. I do not believe this to be legal advice. Our judicial system requires lawyers, as part of their duty of representation, to convey notice of court proceedings to their clients. If courts could not depend on this, service of notice would be required to be made personally upon all clients for all matters in every case. Consequently, it would be appropriate to ask McClanahan whether she had fulfilled this judicial function. Thus, I disagree with the Court’s conclusion that all the “statements from counsel to client in this case constituted ‘advice given’ for purposes of § 26-1-803(1), MCA.” Opinion, ¶ 14. In my view, this was a permissible inquiry.

However, at oral argument the State indicated it wanted to go further, and ask a second question—whether Sweeney had told McClanahan that he needed to attend the final pre-trial conference. An attorney’s communication about a client’s attendance at a proceeding, including whether, for whatever reason, the client should risk violating a release condition, falls into the realm of legal advice. For that reason, I believe the State’s proposed inquiry here was prohibited by the statute.

And a dissent from Justice McKinnon

I agree with the rationale employed by those courts and would hold that an attorney conveying the date of a hearing to her client is not “advice” protected by the attorney-client privilege. It is common practice for the court to notify counsel of a hearing and expect counsel to, in turn, notify her client of the proceeding. The date of a hearing is publicly available information that the attorney receives from the court, a third party. The date of a hearing does not encompass a client’s confidential information or an attorney’s advice in response thereto. Prohibiting disclosure of such information by precluding an attorney from ever being “examined” is contrary to the plain language of § 26-1-803(1), MCA...

I am mindful of the Court’s concern that the State is utilizing Sweeney, McClanahan’s attorney in the drug charge, to prove an essential element of the bail-jumping charge. Opinion, ¶¶ 14-15. I do not commend the practice of calling a defendant’s prior counsel as a witness in a bail-jumping trial. The State should make all attempts to avoid the need for such testimony. However, I can find no authority supporting the Court’s conclusion that requiring Sweeney to testify would violate her duty of loyalty to her client, and therefore cannot agree.

There seems to be a problem with the link. The case is Sweeney v. 3rd Judicial District.  (Mike Frisch)

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