State ex rel. Sowers v. Olwell

• Decision Date: 30 July 1964
• Docket Number: No. 37212,37212
• Citation: 64 Wn.2d 828,394 P.2d 681
• Court: Washington Supreme Court
• Parties: , 16 A.L.R.3d 1021 The STATE of Washington on the relation of Leo M. SOWERS, Coroner for King County, Respondent, v. David H. OLWELL, Appellant.

Page 828

64 Wn.2d 828

394 P.2d 681, 16 A.L.R.3d 1021

The STATE of Washington on the relation of Leo M. SOWERS Coroner for King County, Respondent, v. David H. OLWELL, Appellant.

No. 37212.

Supreme Court of Washington, Department 2.

July 30, 1964.

Robert W. Fetty, Seattle, for appellant.

Charles O. Carroll, Prosecuting Atty., James E. Kennedy, Deputy Pros. Atty., Seattle, for respondent.

DONWORTH, Justice.

May an attorney refuse to produce, at a coroner's inquest, material evidence of a crime by asserting the attorney-client privilege or by claiming the privilege against self-incrimination on behalf of his client? These are the issues raised in this appeal.

September 18, 1962, a coroner's inquest was held for the purpose of investigating the circumstances surrounding the death of John W. Warren. Several days prior to the date of the inquest, appellant was served with a subpoena duces tecum, which said, in part:

'* * * bring with you all knives in your possession and under your control relating to Henry LeRoy Gray, Gloria Pugh or John W. Warren.'

Thereafter, at the coroner's inquest the following exchange took place between a deputy prosecutor and appellant:

'* * *

'Q. Now, Mr. Olwell, did you comply with that? [Subpoena]

'A. I do not have any knives in my possession that belong to Gloria Pugh, or to John W. Warren, and I did not comply with it as to the question of whether or not I have a knife belonging to Henry LeRoy Gray.

'Q. Now, I would ask you, do you have a knife in your possession or under your control relating to or belonging to Henry LeRoy Gray?

'A. I decline to answer that because of the confidential relationship of attorney and client; and to answer the question would be a violation of my oath as an attorney

'* * *

'Q. And for the record, Mr. Olwell, in the event you do have in your possession a knife or knives that would be called for under the subpoena duces tecum, I take it your answer would be that you received these at the time you were acting as the attorney for Mr. Gray, is that correct?

'A. That is correct.'

Further, on examination by the coroner, the following occurred:

'Mr. Sowers: * * * As the Coroner of King County I order you to do so [answer] under the provisions of the law set forth in the legislature under R.C.W. 36.24.050.

'Mr. Olwell: I decline to surrender any of my client's possessions, if any, because of the confidential relationship of attorney and client because under the law I cannot give evidence which under the law cannot be compelled from my client himself.'

The events preceding the issuance of the subpoena and the coroner's inquest (as shown by the record as supplemented by some undisputed statements in the parties' briefs) are substantially as follows: Henry LeRoy Gray and John W. Warren engaged in a fight on September 7, 1962, which resulted in Warren's being mortally injured by knife wounds. On or about September 8, 1962, Gray was taken into custody by the Seattle Police Department and placed in jail. During his incarceration, Gray admitted the stabbing of Warren and was willing to co-operate and to aid in the investigation of the homicide. According to a detective of the police department, Gray was not sure what became of the knife he had used in the fight with Warren.

September 10, 1962, David H. Olwell, appellant, was retained as attorney for Gray, who was still confined in jail. Mr. Olwell conferred with his client and then, between the time of that conference and the issuance of the subpoena duces tecum, he came into possession of certain evidence (a knife). It is not clear whether appellant came into possession of this knife through his own investigation while acting as attorney for Gray or whether possession of it was obtained as the result of some communication made by Gray to Olwell during the existence of their attorney and client relationship. This factor is important in determining whether the evidence could be considered as a privileged communication (which is discussed below.)

Therefore, at the time of the inquest, appellant was in possession of a knife that, at that time, was considered as a possible murder weapon. ¹ Thereafter, the coroner issued the subpoena duces tecum previously quoted.

Appellant appeared at the coroner's inquest and the exchange between appellant, the deputy prosecutor, and the coroner took place as described above. At that time, appellant refused to comply with the subpoena duces tecum and raised the issues presented in this appeal. Thereafter, appellant was cited to appear in the Superior Court of King County, where he was found to be in contempt because of his actions at the coroner's inquest on September 18, 1962. Appellant was given 10 days within which to purge himself of contempt, and, upon his failure to do so, an order was entered adjudging him to be in contempt and directing that he serve two days in the county jail. From that order fainding him in contempt, Mr. Olwell appeals.

The attorney-client privilege is codified in RCW 5.60.060, which provides, in part:

'The following persons shall not be examined as witnesses:

'* * *

'(2) An attorney or counselor shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.'

To be protected as a privileged communication, information or objects acquired by an attorney must have been communicated or delivered to him by the client, and not merely obtained by the attorney while acting in that capacity for the client. Dupree v. Better Way, Inc., 86 So.2d 425 (Fla.1956). See, also, 97 C.J.S. Witnesses § 283. This means that the securing of the knife in this case must have been the direct result of information given to Mr. Olwell by his client at the time they conferred in order to come within the attorney-client privilege. Although there is no evidence relating thereto, we think it reasonable to infer from the record that appellant did, in fact, obtain the evidence as the result of information received from his client during their conference. Therefore, for the purposes of this opinion and the questions to be answered, we assume that the evidence in appellant's possession was obtained through a confidential communication from his client. ² If the knife were obtained from a third person with whom there was no attorney-client relationship, the communication would not be privileged, and the third person could be questioned concerning the transaction. ³ See 58 Am.Jur., Witnesses, § 492.

Further, communications concerning an alleged crime or fraud, which are made by a client to the attorney after the crime or the fraudulent transaction has been completed, are within the attorney-client privilege, as long as the relationship of attorney and client has been established. State v. Dawson, 90 Mo. 149, 1 S.W. 827 (1886); Atlanta Coca-Cola Bottling Co. v. Goss, 50 Ga.App. 637, 179 S.E. 420 (1935). See, also, 58 Am.Jur., Witnesses, § 516; 97 C.J.S. Witnesses § 285. Therefore, we find nothing significant in the fact that the communication was made after and concerned the events of a homicide. ⁴

In the present case we do not have a situation that readily lends itself to the application of one of the general rules applicable to the attorney-client privilege. Here, we enter a balancing process which requires us to weigh that privilege (which is based on statute and common law), and, as discussed later herein, the privilege against self-incrimination (which is constitutional), against the public's interest in the criminal investigation process. Generally speaking, the public interest at times must yield to protect the individual. State v. Kociolek, 23 N.J. 400, 129 A.2d 417, 425 (1956). Also, we must not lose sight of the policy behind the attorney-client privilege, which is to afford the client freedom from fear of compulsory disclosure after consulting his legal adviser.

We must remember, also, that the attorney-client privilege is not absolute, for it can be waived by the client. State v. Sullivan, 60 Wash.2d 214, 217, 373 P.2d 474 (1962); RCW 5.60.060. See cases cited in 51 A.L.R.2d 521 (1951).

On the basis of the attorney-client privilege, the subpoena duces tecum issued by the coroner is defective on its face because it requires the attorney to give testimony concerning information received by him from his client in the course of their conferences. The subpoena names the client and requires his attorney to produce, in an open hearing, physical evidence allegedly received from the client. This is tantamount to requiring the attorney to testify against the client without the latter's consent. RCW 36.24.080 makes testifying in a coroner's inquest similar to testifying in a superior court, and, therefore, the attorney-client privilege should be equally applicable to witnesses at a coroner's inquest. We, therefore, hold that appellant's refusal to testify at the inquest for the first reason stated by him was not contemptuous.

We do not, however, by so holding, mean to imply that evidence can be permanently withheld by the attorney under the claim of the attorney-client privilege. Here, we must consider the balancing process between the attorney-client privilege and the public interest in criminal investigation. We are in agreement that the attorney-client privilege is applicable to the knife held by appellant, but do not agree that the privilege warrants the attorney, as an officer of the court, from withholding it after being properly requested to produce the same. The attorney should not be a depository for criminal evidence (such as a knife, other weapons, stolen property, etc.), which in itself has little, if any, material value for the purposes of aiding counsel in the preparation of the defense of his client's case. Such evidence given the attorney during legal consultation for information purposes and used by the attorney in preparing...