Colman v. Heidenreich, No. 1-477A92

• Docket Nº: No. 1-477A92
• Citation: 366 N.E.2d 686
• Case Date: August 30, 1977
• Court: Court of Appeals of Indiana

Page 686

366 N.E.2d 686 David J. COLMAN, Appellant (Petitioner below),
v.
Stephen HEIDENREICH, Appellee (Plaintiff below),
and
Michael Tabereaux and Charles Tabereaux, Appellees (Defendants below). No. 1-477A92. Court of Appeals of Indiana, First District. Aug. 30, 1977.

Page 687

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

Page 688

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

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.

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."

Page 689

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.

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