State v. Catch the Bear

• Decision Date: 13 June 1984
• Docket Number: No. 14122,14122
• Citation: 352 N.W.2d 640
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Collins CATCH THE BEAR, Defendant, In the Matter of Civil Contempt Proceedings Against Witness Bruce ELLISON, Attorney At Law, Appellant.
• Court: South Dakota Supreme Court

Page 640

352 N.W.2d 640

STATE of South Dakota, Plaintiff and Appellee, v. Collins CATCH THE BEAR, Defendant In the Matter of Civil Contempt Proceedings Against Witness Bruce ELLISON, Attorney At Law, Appellant.

No. 14122.

Supreme Court of South Dakota.

Argued Sept. 14, 1983.

Decided June 13, 1984.

Mikal Hanson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Norton Tooby, Oakland, Cal., and Nancy Manning, Rapid City, Attorneys for appellant Bruce Ellison.

FOSHEIM, Chief Justice.

Attorney Bruce Ellison appeals a civil contempt order entered against him for refusing to submit to a court-ordered pretrial deposition. We affirm in part, reverse in part and remand.

Clarence Tollefson was shot and killed on July 21, 1982, on a ridge near the Yellow Thunder Camp, an American Indian encampment on Victoria Lake in the Black Hills National Forest (camp). Several hours later Bruce Ellison visited the camp.

The next morning Ellison gave a statement to a deputy sheriff at the Pennington County Sheriff's Office. He told the officer that upon returning from the federal courthouse in Rapid City a man informed him a shooting had occurred at the camp. Ellison drove directly to the camp and climbed to the top of the ridge where the victim had been shot. He said he saw the body and a vehicle on the ridge and asked if anyone had contacted law enforcement officers. Upon learning that this had not been done, he promptly sent someone to do so. Mr. Ellison further described what he observed and what he learned from talking to people at the camp about the shooting. After making the statement at the sheriff's office, Ellison gave out several press releases and other news media disclosures concerning the incident.

In preparing to prosecute the case against the crime suspect, Collins Catch The Bear, the State subpoenaed Bruce Ellison to submit to a pretrial deposition concerning his observations and discussions at the camp before law enforcement officials arrived. Ellison resisted the subpoena on the grounds the trial court was without statutory authority to order the subpoena and that professional ethics and the lawyer-client privilege prohibited him from testifying. Ellison had been counsel in federal court for the defendants in a case entitled: "United States of America, Plaintiff, v. William Means, Mathew King, a/k/a Noble Redman, Charles Abourezk, Russell Means and All Other Persons Occupying the Location called 'Yellow Thunder Camp['] at Victoria Lake in the Black Hills National Forest, Defendants." That is a civil action brought by the United States for declaratory and injunctive relief and is not related to the Catch The Bear criminal action. The trial court ruled against Ellison on both issues and ordered him to testify.

Ellison persisted in his refusal and the trial court committed him to the Pennington County Jail "until such time as he submits to a deposition as ordered by this Court or until the end of the [Collins Catch The Bear] trial ... whichever comes first ...." Execution of the order was stayed pending disposition of this appeal.

A mistrial was declared early in the Catch The Bear criminal trial, and the action was dismissed with prejudice. The State argues that the contempt order is consequently moot since the Catch The Bear dismissal automatically purged any contempt. This argument would have merit had the dismissal with prejudice prevailed. We have, however, reversed the prejudice part of that dismissal and remanded the case for a new trial. State v. Catch The Bear, 352 N.W.2d 637 (S.D.1984). The issues posed by the subpoena for a pretrial deposition therefore remain viable.

Specifically, we must decide (1) whether the court possesses authority to order the deposition; (2) whether principles of professional ethics prohibit a lawyer from disclosing client confidences even when required by court order; (3) whether a lawyer-client privilege exists between Bruce Ellison and Collins Catch The Bear; and (4) whether a lawyer-client privilege exists between Ellison and the other members of the camp.

I.

Ellison contends the trial court was without authority to order him to submit to a deposition because the State did not satisfy any of the requirements of SDCL 23A-12-6 for use of a deposition at trial, namely:

At a trial or any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears:

(1) That a witness is dead;

(2) That the witness is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition;

(3) That the witness is unable to attend or testify because of sickness or infirmity; or

(4) That the witness is confined in jail or prison outside the state.

....

Reliance on that statute is misplaced. It governs the use, not the taking, of a deposition.

The circumstances which warrant taking a deposition are identified in SDCL 23A-12-1:

Depositions shall not be ordered for discovery or any other purpose except as specifically provided by statute or rule.

Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition ... [emphasis added]

SDCL 23A-12-1 was adopted from Rule 15(a) of the Federal Rules of Criminal Procedure. Federal courts universally hold that discovery matters under Rule 15 are committed to the sound discretion of the trial courts and are reversible only upon a showing of abuse of discretion. United States v. Mann, 590 F.2d 361 (1st Cir.1978); United States v. Richardson, 588 F.2d 1235 (9th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979); United States v. Rosenstein, 474 F.2d 705 (2d Cir.1973); United States v. Puchi, 441 F.2d 697 (9th Cir.1971), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971); and United States v. Linton, 502 F.Supp. 871 (D.C.Nev.1980). Consistent with this construction, we have held that the extent of discovery permitted by either side rests in the discretion of the court. State v. Means, 268 N.W.2d 802 (S.D.1978); State v. Wade, 83 S.D. 337, 159 N.W.2d 396 (1968).

The State's Attorney conceded that the Ellison deposition would involve discovery. The trial court nevertheless found that "exceptional circumstances" existed which made it "in the interest of justice" to preserve Mr. Ellison's testimony for trial pursuant to SDCL 23A-12-1. Mr. Ellison's assertion of the lawyer-client privilege and the extensive time needed to resolve that complex issue convinced the court that it should best be heard and decided in advance of trial. The court reasoned it would not be conducive to an expeditious trial to have jurors impaneled, jeopardy attach, and everyone sit idle while court and counsel were engrossed in preliminary matters. Moreover, it would divert the attention of all involved in the trial from the central issue of guilt or innocence. We recognize the legitimacy of these concerns. Consequently, the trial court did not abuse its discretion in ordering the pretrial deposition.

II.

Ellison next argues that professional ethics prohibit him from submitting to the deposition. He quotes the attorney's oath: "I will maintain the confidence and preserve inviolate the secrets of my client..." SDCL 16-16-18. Additionally, SDCL 16-18-18 provides: "It is the duty of an attorney and counselor at law to maintain inviolate the confidence, and at any peril to himself to preserve the secret of his client." These maxims were adopted by supreme court rule in 1939.

Under these rules attorneys were conceivably willy nilly required to obey a subpoena to testify, thus exposing themselves to charges of unethical conduct, or to disobey the court at the risk of a contempt citation. See Dike v. Dike, 75 Wash.2d 1, 448 P.2d 490 (1968); American Bar Foundation, Annotated Code of Professional Responsibility 173 (1979). That unreasonable dilemma was resolved, however, by adoption of the Code of Professional Responsibility on July 21, 1970. SDCL ch. 16-18, Appx., specifically, DR 4-101(C)(2) in connection with DR 7-102(A)(3). SDCL 16-19-32 requires attorneys to follow its provisions.

Disciplinary Rule 4-101(C)(2) of the Code now provides: "A lawyer may reveal ... [c]onfidences or secrets when permitted under Disciplinary Rules or required by law or court order " (emphasis added). The permissive language of this rule becomes mandatory when set in juxtaposition with Disciplinary Rule 7-102(A)(3): "In his representation of a client, a lawyer shall not ... [c]onceal or knowingly fail to disclose that which he is required by law to reveal." In re Kerr, 86 Wash.2d 655, 548 P.2d 297 (1976); see also United States v. Mackey, 405 F.Supp. 854 (E.D.N.Y.1975); Annotated Code of Professional Responsibility, supra, at 174. It is clear that under the Code of Professional Responsibility, as adopted, no ethical principle prohibits an attorney from submitting to a court-ordered deposition designed to discover client confidences. The most recent supreme court rule on the subject, DR 4-101(C)(2), relieves the strict ethical prohibitions of the past.

III.

Even though an attorney may be ethically free to testify, his client nevertheless holds an independent confidentiality privilege. Pursuant to SDCL 19-2-4, it was the law of this state that every communication which a client made to his attorney in the course of professional employment was privileged. Schutterle v. Schutterle, 260 N.W.2d 341 (S.D.1977); see also State Highway Comm. v. Earl, 82 S.D. 139, 143 N.W.2d 88 (1966); Austin, Tomlinson & Webster Mfg. Co. v. Heiser, 6 S.D. 429, 61 N.W. 445 (1894). Ellison relies heavily on SDCL 19-2-4 and that line of cases. In 1979, however, SDCL 19-2-4 was repealed...