Colman v. Heidenreich, No. 1078S221

Docket NºNo. 1078S221
Citation269 Ind. 419, 381 N.E.2d 866
Case DateOctober 13, 1978
CourtSupreme Court of Indiana

Page 866

381 N.E.2d 866
269 Ind. 419
David J. COLMAN, Appellant,
v.
Stephen HEIDENREICH, Appellee,
and
Michael Tabereaux and Charles Tabereaux, Appellees.
No. 1078S221.
Supreme Court of Indiana.
Oct. 13, 1978.

[269 Ind. 420]

Page 867

Paul J. Watts, Spencer, for appellant.

Don M. Robertson, Bunger, Harrell & Robertson, Bloomington, for appellee.

ON PETITION TO TRANSFER

PIVARNIK, Justice.

This case comes to us on a transfer petition from the Court of Appeals, First District. The Lawrence Circuit Court denied Attorney David Colman's Motion for Protective Order, relating to an assertedly privileged conversation with a client, on April 25, 1977. An interlocutory appeal was 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 the judgment of the Court of Appeals.

The sole question for review concerns the scope of the attorney-client privilege, as it relates to a conversation between Attorney Colman and one of his clients.

This case presents a rather unusual set of factual circumstances. Petitioner Steven Heidenreich, a long-distance runner for Indiana University's track team, was severely [269 Ind. 421]

Page 868

injured by a hit-and-run driver while running on a county road near Bloomington, Indiana. Both a criminal prosecution and a civil suit were initiated against one Michael Tabereaux for being the alleged hit-and-run driver. While these causes were pending, attorney David Colman informed the prosecuting attorney in the criminal trial that during the course of legal counselling with a male client of his, this client disclosed that a female friend of the male client's was actually the one who hit Heidenreich. The prosecutor informed Tabereaux and his attorney of this information. It appears that there were no eyewitnesses to the accident, but there were certain items of demonstrative evidence available. It is Colman's claim that the "female friend" is also a client of his, although Colman does not claim that he ever talked to her about this matter to this day. The prosecutor offered the anonymous female immunity from criminal prosecution if she would come forward, but Colman indicated that he never conveyed this offer to the female.

This action arises from an attempt by Tabereaux to discover who the female was in order to extricate himself from the predicament of both the criminal and civil suits. In response, Colman invoked the attorney-client privilege as to both the male client and the female friend, and sought a Protective Order to prevent discovery of the identities of both of these individuals. The trial court denied the protective order and Colman filed this interlocutory appeal. The Court of Appeals reversed the trial court and ordered it to invoke the protective order entirely. The order of the trial court of April 25, 1977, denying the protective order, provided for the time and place of an oral deposition, and ordered that Colman, if asked to do so, then reveal the name of his male client, the full conversation he had with this male client, and the name of the female friend his client had disclosed to him.

The attorney-client privilege is a very important provision in our law for the protection of persons in need of professional [269 Ind. 422] legal help. It makes provision for a person to give complete and confidential information to an attorney, so that the attorney may be fully advised in his services to the client. At the same time, it assures the client that these confidences will not be violated. Our system is also based on the need and desire to get to the truth in order to render justice to those seeking it and requiring it, and thus establishes legal processes for requiring those who have facts about an incident to come forward and state them. In the present case we have a unique and rather delicate confrontation of these very sound provisions in our law. One must yield to the other, even though in this particular case it may eventually cause distress to one not deserving of it.

Several Indiana statutes and rules codify the attorney-client privilege. Ind.Code § 34-1-60-4 (Burns 1973), provides in part:

"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."

This duty of attorneys is stated in the same language in the Oath of Attorneys, Ind.R.Adm. & Dis. 22. It is also stated and discussed in ABA Canons of Professional Ethics No. 11, at EC 4-1, which says:

"Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client. A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer

Page 869

to hold inviolate the confidences and secrets of [269 Ind. 423] his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance."

The Disciplinary Rules to this section, at DR 4-101(A), define a "confidence" and "secret" within the meaning of this ethical obligation and privilege as follows:

" '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 to be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."

In sum, the rule is "that when an attorney is consulted on business within the scope of his profession, the communications on the subject between him and his client should be treated as strictly confidential." Jenkinson v. State, (1840) 5 Blackf. 465, 466. See also Thomas v. State, (1969) 251 Ind. 546, 242 N.E.2d 919; Fluty v. State, (1946) 224 Ind. 652, 71 N.E.2d 565. See generally C. McCormick, Evidence §§ 87-95 (2d ed. 1972); VIII J. Wigmore, Evidence §§ 2290-2329 (McNaughton rev. 1961). As long as the communication is within this scope, it is of no moment to the privilege's application that there is no pendency or expectation of litigation. Bigler v. Reyher, (1873) 43 Ind. 112. Neither is it of any moment that no fee has been paid. Reed v. Smith, (1850) 2 Ind. 160. See also ABA Opinion 216 (1941). Rather, what is essential to the privilege is a "confidential relation of client and attorney." See Harless v. Petty, (1884) 98 Ind. 53, 57; Model Clothing House v. Hirsch, (1908) 42 Ind.App. 270, 85 N.E. 719. Within such a confidential relation, the privilege applies to all communications made to an attorney for the purpose of professional advice or aid, upon the subject of the client's rights or liabilities. Borum v. Fouts, (1860) 15 Ind. 50, 53. The burden of proof is on the person asserting the privilege to show that the consultation was a professional one. McKnew v. Superior Court, (1943) 23 Cal.2d 58, 142 P.2d 1; McGrede v. Rembert [269 Ind. 424] National Bank,...

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28 practice notes
  • Chandler v. Denton, No. 59516
    • United States
    • Supreme Court of Oklahoma
    • May 12, 1987
    ...27. 29 State v. Tensley, 249 N.W.2d 659, 661 [Iowa 1977]; State v. Moore, 45 Or.App. 866, 609 P.2d 866, 868 [1980]; Colman v. Heidenreich, 269 Ind. 419, 381 N.E.2d 866, 869 [1978]; Waldmann v. Waldmann, 48 Ohio St.2d 176, 358 N.E.2d 521, 523 [1976]; People v. Duarte, supra note 25 at 343, a......
  • City of Indianapolis v. Swanson, No. 2-1179A336
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1982
    ..."Departmental Correspondence" and copies were provided only to Department of Transportation officials. In Coleman v. Heidenreich, (1978) 269 Ind. 419, 381 N.E.2d 866, our Supreme Court noted that what is essential to the privilege is the confidential relationship of a client and attorney. "......
  • Brown v. State, No. 982S369
    • United States
    • Indiana Supreme Court of Indiana
    • April 27, 1983
    ...for the purpose of obtaining advice and aid upon the subject of the client's rights and liabilities. See, Colman v. Heidenreich, (1978) 269 Ind. 419, 381 N.E.2d 866. We identified the purpose of the privilege in Colman, supra, as "It makes provision for a person to give complete and confide......
  • Indiana State Highway Com'n v. Morris, No. 41S01-8809-CV-833
    • United States
    • Indiana Supreme Court of Indiana
    • September 22, 1988
    ...fully advised in serving the client while assuring the client that these confidences will not be revealed. Colman v. Heidenreich (1978), 269 Ind. 419, 381 N.E.2d 866. A state agency has the same need for confidential legal Other jurisdictions have recognized the attorney-client privilege be......
  • Request a trial to view additional results
28 cases
  • Chandler v. Denton, No. 59516
    • United States
    • Supreme Court of Oklahoma
    • May 12, 1987
    ...27. 29 State v. Tensley, 249 N.W.2d 659, 661 [Iowa 1977]; State v. Moore, 45 Or.App. 866, 609 P.2d 866, 868 [1980]; Colman v. Heidenreich, 269 Ind. 419, 381 N.E.2d 866, 869 [1978]; Waldmann v. Waldmann, 48 Ohio St.2d 176, 358 N.E.2d 521, 523 [1976]; People v. Duarte, supra note 25 at 343, a......
  • City of Indianapolis v. Swanson, No. 2-1179A336
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1982
    ..."Departmental Correspondence" and copies were provided only to Department of Transportation officials. In Coleman v. Heidenreich, (1978) 269 Ind. 419, 381 N.E.2d 866, our Supreme Court noted that what is essential to the privilege is the confidential relationship of a client and attorney. "......
  • Brown v. State, No. 982S369
    • United States
    • Indiana Supreme Court of Indiana
    • April 27, 1983
    ...for the purpose of obtaining advice and aid upon the subject of the client's rights and liabilities. See, Colman v. Heidenreich, (1978) 269 Ind. 419, 381 N.E.2d 866. We identified the purpose of the privilege in Colman, supra, as "It makes provision for a person to give complete and confide......
  • Indiana State Highway Com'n v. Morris, No. 41S01-8809-CV-833
    • United States
    • Indiana Supreme Court of Indiana
    • September 22, 1988
    ...fully advised in serving the client while assuring the client that these confidences will not be revealed. Colman v. Heidenreich (1978), 269 Ind. 419, 381 N.E.2d 866. A state agency has the same need for confidential legal Other jurisdictions have recognized the attorney-client privilege be......
  • Request a trial to view additional results

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