Colman v. Heidenreich

• Decision Date: 13 October 1978
• Docket Number: No. 1078S221,1078S221
• Citation: 269 Ind. 419,381 N.E.2d 866
• Parties: David J. COLMAN, Appellant, v. Stephen HEIDENREICH, Appellee, and Michael Tabereaux and Charles Tabereaux, Appellees.
• Court: Indiana Supreme Court

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.

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 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 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 to hold inviolate the confidences and secrets of 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 National Bank, (Tex.Civ.App.1941) 147 S.W.2d 580; McCormick, Supra.

The record of this case shows that at attorney Colman's action for a Protective Order, he was examined exhaustively about this incident by all parties. Colman testified that he had represented the male client for some three years, that the male client lived some seventy miles from Colman's office in Bloomington, and that it was not unusual for Colman to go to the client's home and discuss legal matters with him. He also stated there were matters in which the male client and the client's female friend were both involved, and that they did come to his office together with a common problem. Colman had not seen or talked to the woman for a period of some eight months, although he said there were some matters involving her that could be considered continuing from his past representation of her. He talked to the man more than he did the woman, and he received his money from the man. He said when he received money from his male client he took it to be forthcoming for services rendered for the client's female friend too, although it was not expressed in that manner. There were times when Colman received a check from a third party that was payment of his fees for services rendered to both individuals. He said he did not send billings to either the man or the woman, but would collect fees from them when he found it necessary in the manner described above.

The conversation in which it was revealed to Colman that the woman was the driver of the car causing the injuries involved here, took place at the male client's residence and in the absence of the woman. The legal matters being discussed were those of the male client only, and did not involve the female. Colman's testimony on this question, at the hearing on the protective order, was as follows:

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 you 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.

Q. I assume they're friends of each other?

A. I believe so, yes.

Q. Is there any other...