Colman v. Heidenreich, 1-477A92

Decision Date30 August 1977
Docket NumberNo. 1-477A92,1-477A92
Citation366 N.E.2d 686
PartiesDavid J. COLMAN, Appellant (Petitioner below), v. Stephen HEIDENREICH, Appellee (Plaintiff below), and Michael Tabereaux and Charles Tabereaux, Appellees (Defendants below).
CourtIndiana Appellate Court

Paul Joal Watts, Spencer, for appellant.

Donald Robertson, Bunger, Harrell & Robertson, Bloomington, for appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

This is an interlocutory appeal, pursuant to Ind. Rules of Procedure, Appellate Rule 4(B)(5), from the trial court's denial of appellant David J. Colman's petition for a protective order, which protective order was sought, pursuant to Ind. Rules of Procedure, Trial Rule 26(C), in order to prohibit the parties of a lawsuit from inquiring during discovery into certain matters which Colman deemed to be privileged, because certain information concerning such matters was obtained by Colman, an attorney, during a business conversation with a client.

FACTS

The case which underlies this interlocutory appeal is a personal injury action by plaintiff-appellee Stephen Heidenreich against defendants-appellees Michael and Charles Tabereaux (hereinafter Tabereaux). Heidenreich, a track star at Indiana University, alleges that, while running along a country road, he was struck and injured by a car driven by Michael Tabereaux and owned by Charles Tabereaux.

Sometime prior to the suit between Heidenreich and Tabereaux, attorney David J. Colman, who was not involved in the Heidenreich-Tabereaux case, was advising an unidentified male client concerning certain legal matters, which involved that unidentified client and a lady friend of that client. During the course of that consultation, which transpired in the home of the unidentified male client, the client mentioned that his lady friend, who was also one of Colman's clients, was the person driving the car that struck Heidenreich.

Colman had learned from certain newspaper accounts that possible civil action and criminal charges were likely to be brought against Tabereaux. With this knowledge in mind, Colman informed the Monroe County Prosecutor of the substance of the information which had been related to him by his unidentified male client, that is, that a lady friend of that male client was the person who struck Heidenreich. Colman refused to identify either the male client or the client's lady friend, the female client. The prosecutor subsequently informed Tabereaux's counsel of the information which Colman had given him. The prosecutor also Colman testified that he had never talked directly to his female client about the Heidenreich matter. Colman said that the male client seemed to be the spokesman for the pair. The male client asked Colman to keep his identity and that of his lady friend in confidence. In fact the male client said that his earlier communication concerning the woman's culpability was not true. It was Colman's opinion that, in spite of the later denial, the male client was telling the truth when he first spoke to Colman about the Heidenreich matter.

informed Colman that immunity from criminal prosecution would be given to his female client, if she would come forward and identify herself.

Tabereaux sought to discover from Colman the respective identities of Colman's unidentified male and female clients. Colman sought a protective order pursuant to TR 26(C), because he considered such information to be privileged in that it was obtained from a client within the scope of the attorney-client relationship. In denying Colman's protective order the trial court implicitly held that the communication from the male client to Colman was not a privileged communication and could therefore be discovered.

ISSUE

Several issues have been presented to this court for review; but since we have determined that the trial court erred on one of those issues, it is not necessary for us to address any other issue.

The issue to which we now address ourselves is whether the trial court erred in denying Colman's motion for a protective order, pursuant to TR 26(C).

DISCUSSION AND DECISION

Colman contends that the court erred in not granting his motion for a protective order, pursuant to TR 26(C). We agree.

Trial Rule 26 provides in part:

"(B) Scope of discovery. Unless otherwise ordered by the court in accordance with these rules, the scope of discovery is as follows:

(1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(C) Protective orders. Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is being taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . .." (Our emphasis)

The propriety of the trial court's denial of Colman's motion for a protective order hinges upon whether the information which Colman received from his unidentified male client arose from the attorney-client relationship, and was, therefore privileged. If the information were privileged, it would be outside the scope of discovery (TR 26(B)(1)), and would constitute good cause for which a TR 26(C) protective order should be granted.

IC 1971, 34-1-60-4 (Burns Code Ed.) provides in part:

"34-1-60-4 (4-7408). Duties of attorney. It shall be the duty of an attorney:

Fifth. To maintain inviolate the confidence, and, at every peril to himself, to preserve the secrets of his client."

The ABA Code of Professional Responsibility DR 4-101 provides in part:

"(A) 'Confidence' refers to information protected by the attorney-client privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:

(1) Reveal a confidence or secret of his client.

(2) Use a confidence or secret of his client to the disadvantage of the client.

(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.

(C) A lawyer may reveal:

(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.

(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.

(3) The intention of his client to commit a crime and the information necessary to prevent the crime.

(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct."

The duty of an attorney to not reveal the secrets and confidences of his client is a sacred trust based upon the necessity of having a free flow of information from the client to the attorney. Without that free flow of information the attorney would be greatly hampered in his efforts to defend or promote the interests of his client. In Baird v. Koerner (1960), 279 F.2d 623, 629-30 (9th Cir.), the following statement was made:

". . . While it is the great purpose of law to ascertain the truth, there is the countervailing necessity of insuring the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense. This assistance can be made safely and readily available only when the client is free from the consequences of apprehension of disclosure by reason of the subsequent statements of the skilled lawyer."

Based upon the policy arguments mentioned above, the need for the existence of the attorney-client privilege is readily discernible. However, it is a more difficult task to define the attorney-client privilege and to determine when it can be invoked. In VIII Wigmore, Evidence § 2292 (McNaughton rev. 1961) the following statement is found:

"(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived."

In the case at bar Colman contends that he was advising his unidentified male client concerning certain legal matters, when his client referred to the Heidenreich incident. Colman's testimony in that regard is as follows:

"Q. Have you had any conversations with that client which were not in the context of your relationship as attorney-client?

A. No. (Tr. p. 51, lns. 18-21)

Q. When the conversation on Heidenreich occurred, were you in the middle of your discussion with your client about his other problem or had that discussion terminated?

A. It was in mid-stream and it was something that he apparently considered to be relevant to the primary discussion.

Q. You mean your male client's problem had something to do with the Heidenreich matter?

A. No, but it had something to do with my female client which brought in the Heidenreich matter. (Tr. p. 66, lns. 20...

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3 cases
  • Jacobsen v. State
    • United States
    • Indiana Appellate Court
    • January 15, 1979
    ...facts of the identity of the client and the attorney, McCormick et al., Evidence, § 90, at 185-86 (2d Ed.1972); Colman v. Heidenreich (1977), Ind.App., 366 N.E.2d 686. Thus, the trial court did not err in finding appellant in contempt for refusal to answer a proper The third finding of cont......
  • Rocca v. Southern Hills Counseling Center, Inc.
    • United States
    • Indiana Appellate Court
    • October 18, 1996
    ...to "know" when such a heinous purpose will actually be carried out, for the client may have a change of mind. Accord Colman v. Heidenreich, 366 N.E.2d 686 (Ind.Ct.App.1977), vacated, 269 Ind. 419, 381 N.E.2d 866 (Code of Professional Responsibility DR 4-101(C)(3) allows that a lawyer may re......
  • Colman v. Heidenreich
    • United States
    • Indiana Supreme Court
    • October 13, 1978
    ...taken, in which the appellate court reversed the trial court and ordered that Colman's protective order be granted. Colman v. Heidenreich, (1977) (Ind.App.) 366 N.E.2d 686. Petitioner Heidenreich, a plaintiff in a personal injury case, asks this court to transfer the case and to set aside t......

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