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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SUSAN E. DOWNIE, )
Assistant Public Defender, )
) Court of Appeals No. A-5611
Appellant, ) Trial Court No. 4FA-94-1396 GJ
)
v. ) O P I N I O N
)
SUPERIOR COURT, )
)
Appellee. ) [No. 1389 - January 26, 1995]
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Richard D.
Savell, Judge.
Appearances: Lance C. Parrish, Parrish
Law Office, Fairbanks, for Appellant. James
P. Doogan, Jr., Assistant District Attorney,
Harry L. Davis, District Attorney, Fairbanks,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee. Marcia E. Holland,
Assistant Public Defender, Fairbanks, and
John B. Salemi, Public Defender, Anchorage,
for the Public Defender Agency as amicus
curiae.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Assistant Public Defender Susan E. Downie appeals an
order of the superior court holding her in contempt of court for
refusing to testify at a grand jury hearing. We affirm the
superior court's order.
This case presents the question of whether a defense
attorney may be compelled to testify concerning whether she
informed her client of the client's trial date. These are the
underlying facts:
In 1994, the Public Defender Agency was appointed to
represent a man named Warren Strickland who was accused of
kidnapping and assault in State v. Strickland, case number 4FA-94-
1396 CR. Susan Downie was the assistant public defender assigned
to Strickland's case. Unable to secure bail release, Strickland
was in custody at the Fairbanks Correctional Center awaiting
trial.
The case was initially set for trial in open court;
Strickland was present and heard the announced trial date. But
on May 16, 1994, the defense peremptorily challenged the trial
judge. A new judge was assigned, and Strickland's trial was
rescheduled for the week of August 22, 1994. The court sent
written notification to the attorneys, apprising them of the new
judicial assignment and of the new trial date.
Strickland appeared in court on three subsequent
occasions (hearings in which he sought modifications of his bail
conditions so that he might secure his pre-trial release).
However, in none of these appearances was Strickland's trial date
announced, confirmed, or otherwise referred to. Moreover, there
was no indication that Strickland ever received notification of
the new trial date through jail personnel.
The superior court issued an order allowing Strickland
to be released daily from the Fairbanks Correctional Center so
that he could attend work. On July 2, 1994, Strickland failed to
return to the Correctional Center at the end of the day. He
remained a fugitive throughout the rest of the summer, and he
failed to attend his trial on August 22, 1994. Strickland was
ultimately arrested in Texas on October 24, 1994; the State
initiated extradition proceedings to secure his return to Alaska.
The State also began grand jury proceedings against Strickland
for failure to appear, AS 12.30.060(1).
Because Strickland was apparently never apprised of his
August 22, 1994 trial date in open court, the State asked the
superior court to issue a subpoena to Downie (Strickland's
attorney), compelling her to testify as to whether she informed
Strickland of the revised trial date. See Alaska Professional
Conduct Rule 3.8(f).1 Downie secured a private attorney and
opposed the State's request for the subpoena. Strickland (now
represented by the Office of Public Advocacy) also opposed the
State's request.
Following a hearing, Superior Court Judge Richard D.
Savell granted the State's request and issued a subpoena
compelling Downie's attendance at the grand jury. Judge Savell
found that Downie's testimony as to whether she informed
Strickland of the revised trial date would not reveal a
"confidential communication" within the meaning of Alaska
Evidence Rule 503, and that therefore Downie's testimony on this
subject was not protected by the attorney-client privilege.
Judge Savell also found that, because Strickland was never
apprised of the revised trial date in open court, Downie was the
only source of this needed information.
After Judge Savell issued this decision, Downie
appeared before the grand jury. However, she refused to answer
questions relating to whether she had informed Strickland of the
revised trial date.2 Because of this refusal to testify, the
State asked the superior court to hold her in contempt. Downie
again argued that the requested testimony would violate
Strickland's attorney-client privilege. Judge Savell reaffirmed
his earlier ruling that the contemplated testimony would not
violate the attorney-client privilege.
When Downie indicated that, despite Judge Savell's
ruling, she would persist in refusing to testify, Judge Savell
held her in contempt of court. He directed Downie to pay a fine
of $100 for each day on which she refused to testify. Downie now
appeals the superior court's order holding her in contempt. See
Surina v. Buckalew, 629 P.2d 969, 972 (Alaska 1981) (a non-party
may appeal a contempt order, whether the contempt is civil or
criminal). We stayed the operation of the contempt order pending
resolution of this appeal.
As Judge Savell noted in his order, and as Downie
concedes on appeal, the case law on this subject uniformly holds
that the attorney-client privilege does not bar an attorney from
testifying as to whether he or she informed a client of a court
date. See People v. Williamson, 839 P.2d 519, 520 (Colo. App.
1992); State v. Breazeale, 713 P.2d 973, 975-76 (Kan. App. 1986);
State v. Ogle, 682 P.2d 267, 268-271 (Or. 1984); In re Grand Jury
Proceedings at Des Moines, Iowa, 568 F.2d 555, 557 (8th Cir.
1977), cert. denied, Black Horse v. United States, 435 U.S. 999
(1978); United States v. Freeman, 519 F.2d 67, 68-69 (9th Cir.
1975); United States v. Hall, 346 F.2d 875, 882 (2nd Cir. 1965),
cert. denied, 382 U.S. 910 (1965); United States v. Woodruff, 383
F.Supp. 696, 698 (E.D.Pa. 1974). See also United States v.
Bourassa, 411 F.2d 69, 74 (10th Cir. 1969), cert. denied, 396
U.S. 915 (1969).
The rationale of these decisions is that the attorney-
client privilege protects confidences between attorney and client
imparted for the purpose of securing legal advice or representa
tion, but the privilege does not cover an attorney's act of
conveying to the client a third-party's communication. "[When]
the attorney is merely acting as a conduit for information, i.e.,
as a messenger, the privilege is inapplicable." Stephen A.
Saltzburg, Michael M. Martin, & Daniel J. Capra, Federal Rules of
Evidence Manual (6th ed. 1994), Vol. 2, p. 595. See In Re Grand
Jury Testimony of Attorney X, 621 F.Supp. 590 (E.D.N.Y. 1985)
(Information concerning a pending grand jury investigation was
given to an attorney by a third party; the attorney relayed this
information to his client. Held: the attorney's communication to
the client was not privileged because the attorney, in conveying
this information, was not acting as a legal advisor but rather
was acting as a conduit of information.)
As the Oregon Court of Appeals stated in State v.
Bilton, 585 P.2d 50, 52 (Or. App. 1978), "[T]he date set for
trial is a matter of public record and cannot conceivably be
considered confidential." And, as the authorities cited above
demonstrate, when an attorney conveys this public information to
a client, the fact of the communication has never been deemed
protected by the attorney-client privilege.
On appeal, Downie admits that all the case law is
against her, and she implicitly concedes that Alaska Evidence
Rule 503, as written, would not cover her act of conveying the
revised trial date to Strickland.3 However, Downie argues that
the scope of the privilege created by Evidence Rule 503 must be
re-evaluated in light of the Alaska Supreme Court's 1993
promulgation of the Alaska Rules of Professional Conduct, and
especially Alaska Professional Conduct Rule 1.6.
Professional Conduct Rule 1.6(a) directs an attorney
"not [to] reveal information relating to representation of a
client unless the client consents after consultation, except for
disclosures that are impliedly authorized in order to carry out
the representation, and except as stated in paragraph (b) [of
this rule] or in Rule 3.3(a)(2)". Downie suggests that the
obligation of confidentiality imposed by Professional Conduct
Rule 1.6(a) expands the attorney-client privilege codified in
Evidence Rule 503.
However, the Commentary to Professional Conduct Rule
1.6(a) states just the opposite. This commentary declares that,
while both the law of evidence and the law of professional
conduct protect the confidences of clients, these two bodies of
law are distinct and they apply in separate, discrete situations:
The principle of confidentiality is
given effect in two related bodies of law,
the attorney-client privilege (which includes
the work product doctrine) in the law of
evidence and the rule of confidentiality
established in professional ethics. The
attorney-client privilege applies in judicial
and other proceedings in which a lawyer may
be called as a witness or otherwise required
to produce evidence concerning a client. The
rule of client-lawyer confidentiality applies
in situations other than those where evidence
is sought from the lawyer through compulsion
of law. The confidentiality rule applies not
merely to matters communicated in confidence
by the client but also to all information
relating to the representation, whatever its
source. A lawyer may not disclose such
information except as authorized or required
by the rules of professional conduct or other
law.
Commentary, Alaska Professional Conduct Rule 1.6, general "Com
ment" section, paragraph 5 (emphasis added). A later portion of
the same commentary describes the relationship between Profes
sional Conduct Rule 1.6(a) and the attorney-client privilege
(whatever its contours in the jurisdiction in which the lawyer is
called as a witness). The commentary suggests that, under
Professional Conduct Rule 1.6(a), it is a lawyer's obligation to
invoke the privilege if (1) the lawyer is called to testify
concerning matters relating to the representation and (2) the
attorney-client privilege is applicable. In the final analysis,
however, the lawyer's obligation to testify is governed by the
attorney-client privilege as defined in that jurisdiction's law
of evidence:
The attorney-client privilege is differ
ently defined in various jurisdictions. If a
lawyer is called as a witness to give
testimony concerning a client, absent waiver
by the client, Rule 1.6(a) requires the
lawyer to invoke the privilege when it is
applicable. [But the] lawyer must comply
with the final orders of a court or other
tribunal of competent jurisdiction requiring
the lawyer to give information about the
client.
Commentary, Alaska Professional Conduct Rule 1.6, section titled
"Disclosures Otherwise Required or Authorized", paragraph 1.
For these reasons, we reject Downie's suggestion that
the scope of the attorney-client evidentiary privilege has been
altered by Professional Conduct Rule 1.6. Although an attorney
who is called to testify against a client may have an ethical
obligation to withdraw from further representation of that
client, the attorney's obligation to testify is governed by the
Evidence Rules.
Both Downie and the Public Defender Agency (which has
filed a brief as amicus curiae) argue that assistant public
defenders must often battle not only the government's case but
also their own clients' distrust. They point out that indigent
defendants frequently enter the attorney-client relationship with
the suspicion that any defense attorney who is a salaried
employee of the government can not truly be a loyal and effective
advocate on their behalf. Downie and the Public Defender Agency
argue that this perception of divided loyalties can only be
worsened if defense attorneys are forced to testify against
former clients in situations like Downie's. For this reason,
Downie and the Agency ask this court to construe the attorney-
client privilege more broadly for defendants who are represented
by court-appointed attorneys.
This court is mindful of the difficulty encountered by
assistant public defenders and assistant public advocates when
their clients view them as agents of the government. But we can
not adopt a rule of law that creates one rule of evidence for
indigent defendants and another rule of evidence for defendants
who hire their own attorneys.
For these reasons, the contempt order issued by the
superior court is AFFIRMED.
Notwithstanding the normal time limits specified in
Appellate Rules 507(b) and 512(a), our previously-entered stay of
the superior court's order is dissolved effective 12:00 noon,
Monday, January 30, 1995, and this opinion will take effect at
that time unless otherwise ordered by the supreme court.
Pursuant to Appellate Rule 521, and notwithstanding the
time limit specified in Appellate Rule 303(a)(1), any petition
for hearing from this decision must be filed by 12:00 noon,
Monday, January 30, 1995, unless otherwise ordered by the supreme
court.
_______________________________
1 Under Alaska Professional Conduct Rule 3.8(f), a
prosecutor shall not:
subpoena a lawyer in a grand jury ... proceeding
to present evidence about a past or present client
unless:
(1) the prosecutor reasonably
believes:
(i) the information sought is not
protected from disclosure by any applicable
privilege;
(ii) the evidence sought is
essential to the successful completion of an
ongoing investigation or prosecution; [and]
(iii) there is no other feasible
alternative to obtain the information; and
(2) the prosecutor obtains prior
judicial approval after an opportunity for an
adversarial proceeding.
2 According to Downie's brief to this court, she declined
to answer two questions at grand jury: (1) whether she had
transmitted to Strickland a physical copy of the superior court's
order of May 23, 1994 (the order rescheduling the trial), and (2)
whether she had, in any fashion, communicated the substance of
that order to Strickland.
3 In one sentence of her brief, Downie notes the only
significant countervailing opinion: the dissent in State v.
Ogle, 682 P.2d 267, 275-283 (Or. 1984). The dissenters in Ogle
conceded that the attorney-client privilege has traditionally
been interpreted not to cover an attorney's communication of a
court date to a client. The dissenters argued, however, that by
enacting Oregon Evidence Code 503 (which has essentially the
same wording as Alaska Evidence Rule 503), the Oregon
Legislature, perhaps unintentionally, changed the traditional
scope of the privilege, broadening it to include such communica
tions. Ogle, 682 P.2d at 283.
Because the aim of statutory construction is to ascertain
and give effect to legislative intent, we have significant
reservations about the Ogle dissent's apparent willingness to
"construe" Oregon's evidence code irrespective of the Oregon
Legislature's intent. Be that as it may, the Commentary to
Alaska Evidence Rule 503(b) indicates that Alaska's current rule
regarding the attorney-client privilege was not intended to alter
the scope of the privilege, but rather was intended to re-enact
the pre-existing privilege "in accord with the Alaska rules on
this subject that are superseded by [Evidence Rule 503]: [Civil]
Rule 43(h)(2) ... and [Criminal] Rule 26(b)(3)".
For the wording of former Criminal Rule 26(b)(3), see
Houston v. State, 602 P.2d 784, 790 n.9 (Alaska 1979).
