State v. Maxwell

• Court: Kansas Court of Appeals
• Writing for the Court: MEYER; The defendant's final argument is that the trial court judge; REES
• Citation: State v. Maxwell, 10 Kan.App.2d 62, 691 P.2d 1316 (Kan. App. 1984)
• Decision Date: 14 December 1984
• Docket Number: No. 56320,56320
• Parties: STATE of Kansas, Plaintiff-Appellee, v. Johnny Ray MAXWELL, Defendant-Appellant.

Page 1316

691 P.2d 1316

10 Kan.App.2d 62

STATE of Kansas, Plaintiff-Appellee, v. Johnny Ray MAXWELL, Defendant-Appellant.

No. 56320.

Court of Appeals of Kansas.

Dec. 14, 1984.

Review Denied Feb. 8, 1985.

Syllabus by the Court

1. Communications between an attorney and client are privileged when made in professional confidence. Communications not made in such confidence are not so privileged.

2. When information is disclosed within the confines of an attorney-client relationship, this imposes upon the attorney a general duty not to disclose this information.

3. If an attorney violates his duty of confidentiality, this cannot be said to waive his client's privilege.

4. Where two or more persons employ an attorney as their common attorney, their communications to him in the presence of each other are regarded as confidential so far as strangers to the conference are concerned.

5. The disclosure of privileged information by an attorney to counsel of actual or potential codefendants does not constitute a waiver of the attorney-client privilege.

6. The joint defense privilege encompasses shared communications to the extent that they concern common issues and are intended to facilitate representation in possible subsequent proceedings.

Roger L. Falk of O'Hara, Busch, Johnson & Falk, Wichita, for defendant-appellant.

Kimberly Gee Vines, Asst. Dist. Atty., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., for plaintiff-appellee.

MEYER, Judge:

This is an appeal by Johnny Ray Maxwell (defendant) from a jury trial finding him guilty of one count of the sale of marijuana (K.S.A.1983 Supp. 65-4127b[b] and K.S.A. 1983 Supp. 65-4105[d].

Defendant contends several errors occurred at the trial court level. Central to defendant's charges of error are alleged conversations made while defendant, Donnette Thomas, and Michael Thomas were represented by common counsel. Later, defendant obtained new counsel who represented him at trial.

Defendant claims that while all three parties were discussing the case with their original counsel, Donnette Thomas and Michael Thomas, on separate occasions, stated that defendant was not their usual supplier of marijuana and that the night defendant was arrested was the first time they had purchased any marijuana from him. At trial, both Donnette and Michael Thomas testified that defendant was their principal source of marijuana and had supplied it to them on previous occasions.

After Donnette so testified, defendant sought to introduce her prior inconsistent statement which had been made to the parties' original counsel.

Defendant argues that if there was an attorney-client privilege protecting the statement Donnette Thomas made to their original common counsel, it was later waived. Defendant claims this waiver occurred upon disclosure of this information by original counsel to the assistant district attorney. The trial court found that such disclosure by the attorney did not waive the attorney-client privilege held by Donnette Thomas and overruled defense counsel's request to impeach the witness by use of this earlier statement.

K.S.A. 60-426 sets forth the attorney-client privilege and the exceptions thereto. The general rule may be summarized as follows: (1) Where legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) communications made in the course of that relationship (4) made in confidence (5) by the client (6) are permanently protected (7) from disclosures by the client, the legal advisor, or any other witness (8) unless the privilege is waived. See 8 Wigmore on Evidence § 2292 (McNaughton rev.1961).

The rule has always been that communications between attorney and client are privileged when made in professional confidence. Communications not made in such confidence are not so privileged. McCormick on Evidence § 91 (2d ed. 1972); 8 Wigmore on Evidence § 2311. In the case at bar, Donnette and Michael Thomas allegedly made prior statements to their attorney inconsistent with their testimony at trial.

We will first consider whether original counsel's subsequent disclosure to the district attorney can be said to have waived his clients' privilege. Certainly the answer is no. The privilege belongs to the client. K.S.A. 60-426(a); State v. Wilkins, 9 Kan.App.2d 331, 333, 676 P.2d 159 (1984). Only the client can waive the privilege. When information is disclosed within the confines of the attorney-client relationship, this imposes upon the attorney a general duty not to disclose this information. Cranston v. Stewart, 184 Kan. 99, 334 P.2d 337 (1959). See also Hutton v. Hutton, 184 Kan. 560, 337 P.2d 635 (1959); Fisher v. Mr. Harold's Hair Lab, Inc., 215 Kan. 515, 519, 527 P.2d 1026 (1974). Accordingly, if an attorney violates his duty of confidentiality, this cannot be said to waive his client's privilege. This principle has been codified in K.S.A. 60-426(a)(3)(iii).

Defendant argues, however, that the communication involved falls within the exception to the attorney-client privilege provided in K.S.A. 60-426(b)(5). This exception is only applicable when there is an action between the clients. The case at bar is a suit by the State of Kansas against defendant. Donnette and Michael Thomas are not parties to this lawsuit; therefore, this exception is inapplicable. Defendant attempts to circumvent the clear statutory language, however, by arguing that, although Donnette and Michael Thomas are not defendant's adversaries, they are openly hostile and antagonistic, and that their interests are, in effect, aligned with the State. In light of the unambiguous statutory language, this argument is not persuasive.

It is next contended that because defendant was present at the time Donnette and Michael Thomas made disclosures to counsel, this constitutes a waiver by the Thomases of their attorney-client privilege. The trial court found the presence of the defendant, when all three persons were being represented by the same counsel, did not prevent the meeting from being confidential and thus did not waive the attorney-client privilege. We agree.

At the time Donnette and Michael Thomas communicated to their original counsel, they and defendant were his clients. Where two or more persons employ an attorney as their common attorney, their communications to him in the presence of each other are regarded as confidential so far as strangers to the conference are concerned. Annot., 141 A.L.R. 553, 562. When a controversy arises between third persons and the several clients, communications made by the clients to their common attorney are entitled to the protection from disclosure which the attorney-client privilege affords. 81 Am.Jur.2d, Witnesses § 189.

The rule goes further and provides that where several persons employ an attorney and a third party seeks to have communications made therein disclosed, none of the several persons--not even a majority--can waive this privilege. 81 Am.Jur.2d, Witnesses § 189. These rules are based on a "joint defense privilege" which extends the attorney-client privilege to communications made in the course of joint defense activities. Where two or more persons jointly consult an attorney concerning mutual concerns, their confidential communications with the attorney, although known to each other, will be privileged in controversies of either or both of the clients with the outside world. Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21 (N.D.Ill.1980). See United States v. McPartlin, 595 F.2d 1321 (7th Cir.), cert. denied 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979); United States v. Bigos, 459 F.2d 639 (1st Cir.), cert. denied 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88 (1972); International Bro. of Teamsters, Etc. v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971); People v. Kor, 129 Cal.App.2d 436, 277 P.2d 94 (1954).

We next address whether the original counsel's disclosures to defendant's present counsel waived the attorney-client privilege held by the Thomases. As stated above, when Donnette and Michael Thomas communicated to their original counsel, they did so in the course of their confidential attorney-client relationship. There is no evidence proving otherwise. When original counsel told defendant's trial counsel certain information which had been told to him by the Thomases, he breached his attorney-client relationship as there had been no consent to such disclosure by the Thomases. In K.S.A. 60-426(a), it is provided that a client has a privilege to prevent a witness from disclosing a communication the client had with his or her attorney if the communication "came to the knowledge of such witness ... (iii) as a result of the breach of the lawyer-client relationship."

It is hard to imagine a situation more closely applicable under this statute than the facts of the present case. Because defendant's trial counsel received his information from defendant's original counsel and thus through a breach of the attorney-client privilege between original counsel and the Thomases, it cannot be said it was error for the trial court to refuse to allow defendant's present counsel to withdraw and to testify as to this communication or to overrule defendant's motion for mistrial.

Furthermore, federal courts have endorsed the joint defense exception to the general rule that no privilege attaches to communications made in the presence of third parties. The disclosure of privileged information by an attorney to counsel of actual or potential codefendants does not constitute a waiver of the attorney-client privilege. See, e.g. Wilson P. Abraham Const. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir.1977); Hunydee v. United States, 355 F.2d 183 (9th Cir.1965); Continental Oil Company v. United States, 330 F.2d 347 (9th Cir.1964); Matter of Grand Jury Subpoena, Etc., Nov. 16, 1974, 406 F.Supp. 381 (S.D.N.Y.1975).

The joint defense privilege encompasses shared communications "to the extent that they concern common...