State v. Ogle

• Decision Date: 15 May 1984
• Docket Number: No. CA,CA
• Citation: 297 Or. 84,682 P.2d 267
• Parties: STATE of Oregon, Respondent on Review, v. Mark Allen OGLE, Petitioner on Review. A26378; SC S30175.
• Court: Oregon Supreme Court

Page 267

682 P.2d 267

297 Or. 84

STATE of Oregon, Respondent on Review, v. Mark Allen OGLE, Petitioner on Review.

No. CA A26378; SC S30175.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 25, 1984.

Decided May 15, 1984.

Helen I. Bloch, Salem, argued the cause for petitioner on review. With her on the petition and brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

ROBERTS, Justice.

Defendant appeals his conviction for failure to appear in the first degree. He contends that testimony of his former counsel should have been excluded from evidence as violative of the attorney-client privilege. The testimony was that the former counsel had sent a letter to defendant notifying him of a court appearance date. We hold that the testimony falls outside the scope of the privilege and was therefore properly admitted into evidence.

Defendant was arrested and charged with two counts of forgery in the first degree. He was released pending arraignment after signing a Security Release statement. Subsequently, the date of his arraignment was set for July 1, 1981. Defendant failed to appear for arraignment. In August, 1982, defendant was arrested in California and extradited to Oregon. He was charged with failure to appear in the first degree.

At trial upon this charge, Alan Scott, defendant's counsel in 1981, testified, over objection by defendant's trial counsel on grounds of the attorney-client privilege, that he had sent a letter to defendant notifying him of the arraignment hearing date. The trial court admitted the testimony, but did not admit the letter, which included legal advice from Scott to defendant. The Court of Appeals affirmed. 65 Or.App. 169, 670 P.2d 222 (1983).

Whether the introduction of testimony of this nature violates the attorney-client privilege is controlled by OEC 503, which defines "confidential communication" as one which is "not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." OEC 503(1)(b).

The general rule of privilege is found in OEC 503(2)(a):

"A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(a) Between the client * * * and the client's lawyer * * *."

The rule thus prohibits the admission of a "communication not intended to be disclosed to third persons" which was "made for the purpose of facilitating the rendition of professional legal services." The application of the privilege hinges on both the intent of the parties to shield the communication from disclosure and the purpose for which the communication is made. Both factors must be met in order for defendant successfully to assert the privilege.

The question whether an attorney's testimony that he notified his client of a court date violates the attorney-client privilege has arisen on a previous occasion in Oregon. In State v. Bilton, 36 Or.App. 513, 585 P.2d 50 (1978), a decision which preceded enactment of the Oregon Evidence Code, the Court of Appeals held that such testimony was not privileged. The court applied an analysis similar to that found in United States v. Woodruff, 383 F.Supp. 696 (E.D.Pa.1974). ¹ The Court of Appeals stated in Bilton:

"The court [in Woodruff ] held that a communication between attorney and client in a criminal case as to the time and place of trial is not within the attorney-client privilege, since [it is] nonlegal in nature with counsel simply performing a notice function. Clearly, the date set for trial is a matter of public record and cannot conceivably be considered confidential." 36 Or.App. at 516, 585 P.2d 50. ² We have not previously interpreted OEC 503 in this particular context, and while the outcome of this case depends upon interpretation of that rule, we, nevertheless, examine for guidance cases that have dealt with the attorney-client privilege in similar circumstances.

The federal court reasoned in United States v. Freeman, 519 F.2d 67, 68 (9th Cir.1975):

"The district court did not err in requiring counsel to testify. The evidence sought to be elicited from him was not of a confidential nature and hence was not protected by the attorney-client privilege. It simply related to whether he had advised his client of the court's order to appear. We think the Second Circuit aptly appraised the matter when it said:

'The relaying of this message is not in the nature of a confidential communication. [Citations omitted.] Defense counsel served merely as a conduit for transmission of a message. * * * Defendant's counsel had a duty to relay the instructions to his client in his capacity as an officer of the court, and this in no way was inconsistent with his obligation to his client.'

United States v. Hall, 346 F.2d 875, 882 (2d Cir.1965); see also United States v. Woodruff, 383 F.Supp. 696, 698 (E.D.Pa.1974)."

The facts in this case demonstrate the defendant's former attorney's common practice for notifying clients of court dates. Scott testified:

"Q. As part of your standard procedure do you do anything upon receipt of [the court appearance date from the court] to notify the client * * * of the date that is announced * * *?

" * * *

"A. Just to save time. I set the cases with the docket clerk. The docket clerk and I sit down and pick days that are appropriate to try various cases. I get a list of those cases and my secretary then sends out notices from that.

" * * *

"Q. What--according to the procedure that you use in your office, what sort of notices are sent?

"A. Well, generally a letter is sent to the client indicating a particular court appearance or some such thing."

As United States v. Bourassa, 411 F.2d 69, 74 (10th Cir.1969), points out:

"It is also argued that it was error to permit appellant's former attorney to testify that he notified appellant to be present for his first trial * * *. Relating such notice to the client was counsel's duty as an officer of the court, and was not within the privilege. * * * "

In this case, the trial judge noted the practice that defense counsel carries out for the court the duty of notifying clients of court dates. Our trial courts routinely require defense counsel to notify their clients of court appearance dates and defense counsel carry out this duty as officers and agents of the court. ³ We are not persuaded that this notification task implicates confidential communications as defined in our evidence code merely because it occurs between attorney and client. When an attorney notifies a client of a court date set for the client, it is not "for the purpose of facilitating the rendition of professional legal services." OEC 503(2). The lawyer is acting merely as an agent for the court in communicating the court date to the client. The attorney's later disclosure of the fact that he or she performed this function is not privileged. ⁴ Defendant argues that the critical feature of his former counsel's testimony was not that it disclosed the fact that defendant's arraignment date had been set, but that it disclosed that his counsel had communicated that fact to him. The statute under which defendant was convicted makes criminal intentional failure to appear, ORS 162.205, ⁵ thus necessitating that the state prove that defendant knew he was supposed to appear, not merely that a court date was set and defendant missed it. Defendant makes several policy arguments in support of his position. He argues that admission of such testimony will engender distrust between attorneys and clients, weaken the attorney-client relationship and impinge on defendant's right to counsel.

In a case involving a tax investigation rather than a charge of failure to appear, the Court of Appeals for the Ninth Circuit identified the rationale for the privilege, stating that because

" * * * the effect of the assertion of the attorney-client privilege is to withhold relevant information from the finder of fact, the privilege is to be applied only when necessary to achieve its purpose of encouraging clients to make full disclosure to their attorneys." United States v. Osborn, 561 F.2d 1334, 1339 (9th Cir.1977).

A Seventh Circuit case determined that a grand jury could require testimony from an attorney concerning his representation of a client who disappeared after the client testified before the grand jury. In so holding, the court stated:

"Once the attorney-client relationship is established, inquiry will focus upon the nature of the communication or information sought. The relationship itself does not create '[a] cloak of protection [which is] draped around all occurrences and conversations which have any bearing, direct or indirect, upon the relationship of the attorney with his client.' United States v. Goldfarb, 328 F.2d 280, 281-82 (6th Cir.), cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964). The privilege 'protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.' Fisher v. United States, 425 U.S. [391,] 403, 96 S.Ct. [1569,] 1577 [,48 L.Ed.2d 39 (1976) ]." Matter of Walsh, 623 F.2d 489, 494 (7th Cir), cert. denied, sub. nom. Walsh v. United States, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980).

The facts of the instant case do not establish that the goal of full disclosure by the client to his attorney has been adversely affected. The admission of testimony by the attorney of his notification to the client of a court date does not impede communication from client to attorney or vice versa. We find no indication of a...