Hueck v. State

• Citation: 590 N.E.2d 581
• Decision Date: 14 April 1992
• Docket Number: No. 82A010-9106-CR-184,82A010-9106-CR-184
• Parties: Gordon HUECK and John F. Davis, Attorney, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 581

590 N.E.2d 581

Gordon HUECK and John F. Davis, Attorney, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A010-9106-CR-184.

Court of Appeals of Indiana,

First District.

April 14, 1992.

Rehearing Denied June 1, 1992.

Stuart T. Bench, Bench Law Office, Indianapolis, for Gordon Hueck.

Robert Canada, Evansville, for John F. Davis.

Linley E. Pearson, Atty. Gen. of Indiana, Michael Gene Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for the State.

STATEMENT OF THE CASE

RATLIFF, Chief Judge.

Gordon Hueck ("Hueck") and John F. Davis ("Davis") appeal from an order denying attorney Davis's motion to quash a subpoena issued to him to testify against Hueck in a criminal case charging Hueck with Dealing in a Schedule II Controlled Substance, ¹ a Class B felony; and Conspiracy

to Deliver a Schedule II Controlled Substance, ² a Class B felony. We affirm.

ISSUE

Does the attorney-client privilege prevent Davis from disclosing the identity of a third party fee payer?

FACTS

Attorney Davis represented Phillip Johnson ("Johnson") in Vanderburgh Circuit Court, cause number 6756. The attorney fees for Johnson were paid by a third party. In a subsequent grand jury investigation, Johnson testified that Hueck had paid his attorney fees to Davis. Johnson also signed a limited waiver as to his attorney-client privilege with respect to his representation by Davis. Record at 197.

On December 14, 1990, a grand jury subpoena and a grand jury subpoena duces tecum were issued ordering attorney Davis to appear before the grand jury on December 18, 1990. Davis was to provide testimony and documents regarding the amount and source of attorney fees paid to him to represent Johnson. Davis filed a motion to quash the subpoenas contending that the attorney-client privilege prevented him from testifying. An in camera hearing was held on the motion to quash the subpoenas on December 19, 1990. The court accepted affidavits from Davis and Hueck and the State questioned Davis. On January 13, 1991, Hueck filed a third party petition to intervene. The petition to intervene was granted at a second in camera hearing held on January 18, 1991. At the second hearing, it was decided that the subpoenas would apply to depositions and trial as well as the grand jury proceedings. ³

On December 17, 1990, Hueck was indicted on various charges. Davis received two additional subpoenas: one to testify at a deposition and the other at trial in the case of State of Indiana v. Gordon Hueck, cause numbers 8542 and 8545. On April 2, 1991, Davis filed a motion to quash the subpoenas. A third count was filed against Hueck on May 3, 1991. Count three (3) of the indictment charged Hueck with conspiracy to deliver a Schedule II controlled substance. One of the overt acts alleged to support count three (3) was that on or about April or May 1988, Hueck paid attorney Davis to represent Johnson. Davis filed another motion to quash on May 10, 1991.

On May 16, 1991, the trial court entered findings of fact and conclusions of law and denied Davis's motions to quash the subpoenas. Davis filed a petition to certify the interlocutory order for appeal. We accepted jurisdiction on October 7, 1991.

DISCUSSION AND DECISION

Davis does not contend that his relationship with Johnson would prevent him from revealing the identity of the third party fee payer. Rather, Davis contends that his relationship with the third party fee payer constitutes an attorney-client relationship which precludes Davis from revealing the identity of the third party.

The attorney-client privilege applies in proceedings in which an attorney "... may be called as a witness or otherwise required to produce evidence concerning a client." Ind. Professional Conduct Rule 1.6. In addition, IND.CODE Sec. 34-1-14-5 states that "[t]he following persons shall not be competent witnesses: Third. Attorneys, as to confidential communication made to them in the course of their professional business, and to advice given in such cases." The attorney-client privilege establishes a provision for a person to give complete and confidential information to an attorney, so the attorney may be fully advised in his services to this client. Colman v. Heidenreich (1978), 269 Ind. 419, 422, 381 N.E.2d 866, 868. At the same time it assures the client that the confidences will not be revealed. Id. However, it has been cautioned that since the privilege prevents the disclosure of relevant information and impedes the quest for the truth, the privilege should be narrowly construed. In re Shargel (2d Cir.1984), 742 F.2d 61, 62; In re Special, September 1983, Grand Jury (Klein) (S.D.Ind.1985), 608 F.Supp. 538, 542, aff'd, 776 F.2d 628; accord Fisher v. United States (1976), 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39, 51.

The privilege provides " '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 confidential.' " Colman, 269 Ind. at 423, 381 N.E.2d at 869, (quoting Jenkinson v. State (1840), 5 Blackf. 465, 466). The privilege applies to all communications to an attorney for the purpose of obtaining professional legal advice or aid regarding the client's rights and liabilities. Id.

Davis contends that the attorney-client privilege prevents him from revealing the third party's identity because at the time of the payment of fees, the third party sought legal advice and confidential communications were revealed. Thus, to reveal the third party's identity or the fee arrangement would be to reveal the substance of the confidential communications. State counters that no attorney-client privilege existed between Davis and the third party.

A trial court's decision to grant or deny a motion to quash a subpoena will be reviewed for an abuse of discretion. In re Grand Jury Subpoenas (Hirsch) (9th Cir.1986), 803 F.2d 493, 496; In re Grand Jury Subpoena for Reyes-Requena [I] (5th Cir.1990), 913 F.2d 1118, 1122, cert. denied, --- U.S. ----, 111 S.Ct. 1581, 113 L.Ed.2d 646. It is the burden of the person asserting the privilege to show an attorney-client relationship exists, and that a confidential communication is involved. Colman, 269 Ind. at 423, 381 N.E.2d at 869. Here, Davis was hired to represent Johnson. At least two of the three attorney's fee payments to Davis were made by the third party. In an affidavit for in camera examination, Davis stated that at the time the third party hired him and paid the attorney fees on behalf of Johnson, Davis believed that the transactions were confidential. Record at 58. However, Davis was not certain whether he related to the third party that he believed the payment of the fees was confidential and privileged. Record at 59. Moreover, Davis explained to the third party that if there was a conflict of interest between Johnson and the third party, his first responsibility would be to Johnson. Record at 59.

In an affidavit in support of the motion to quash, the third party alleged that he had sought Davis's advice regarding the delivery of money for Johnson's legal fees and discussed harassment by law enforcement officers and other matters. Record at 80. Further, the third party stated that Davis advised him that the attorney-client privilege prevented Davis from disclosing delivery of the fees. Record at 80. Neither affidavit revealed that the third party fee payer sought aid or advice for the matter in which the fee was paid. Davis's mistaken assertion that the attorney-client privilege prevented him from revealing the identity of a third party fee payer is not enough. Nor is the third party's bare assertion that he sought advice regarding the delivery of attorney fees. The attorney-client relationship does not exist where its only purpose is to gain confidentiality for the third party or to use the attorney as a mere conduit for the payment of money. In re Grand Jury Subpoenas (Hirsch), 803 F.2d at 499. It could be inferred from the evidence that the relationship between Davis and the third party was as payer-payee and not attorney-client. The trial court did not err in concluding that no attorney-client relationship existed, since the third party fee payer has not sustained his burden. See, In re Grand Jury Proceedings (Pavlick) (5th Cir.1982), 680 F.2d 1026, 1029 (Rubin, J. joined by Clark, J. and Randall, J., concurring in result) (even if fee payer sought legal advice and became attorney's client in regard to some matters, that did not establish he was attorney's client for the matters for which the fee was paid).

Assuming arguendo that an attorney-client relationship existed between Davis and the third party, it is still necessary to establish that the communications were privileged. Davis argues that identifying the third party payer or the fee arrangement violates the attorney-client privilege because the third party sought legal advice and confidential communications were revealed at the time of the payment of the fees.

As a general rule, information regarding a client's attorney fees is not protected by the attorney-client privilege because the payment of fees is not considered a confidential communication between attorney and client. Matter of Witness Before Special March 1980 Grand Jury (7th Cir.1984), 729 F.2d 489, 491. Likewise, the identification of a client is not usually considered privileged information. Colman, 269 Ind. at 427, 381 N.E.2d at 871.

As Davis and the third party correctly point out, courts have developed an exception to the general rule. Identity or fee arrangements may be privileged where revealing the third party's identity or the fee arrangement would be tantamount to the disclosure of a confidential communication. ⁴ Matter of Witnesses Before Special March 1980 Grand Jury, 729 F.2d at 491-95 (discussion of other circuits in agreement); see also, Colman, 269 Ind. at 427-28, 381 N.E.2d at 871 (client's...