NOTICE: Formal errors in the text of this opinion can
be corrected before the opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal errors to the attention of
the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: twhitman@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JULIA D. MOUDY, )
) Court of Appeals No. A-6599
Appellant, ) Trial Court No. 1JU-S97-0000CR
)
v. )
) O P I N I O N
SUPERIOR COURT, )
)
Appellee. ) [No. 1605 - October 2, 1998]
______________________________)
Appeal from the Superior Court, First Judicial
District, Juneau, Larry R. Weeks, Judge.
Appearances: Louis James Menendez, Juneau,
for Appellant. Douglas H. Kossler, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Rabinowitz, Senior Supreme Court Justice. [Stewart,
Judge, not participating.]
COATS, Chief Judge.
The state subpoenaed Assistant Public Defender Julia D.
Moudy to appear before a grand jury investigating whether her
client, Frederick Michaelson, committed the crime of willfully
failing to appear for trial in a felony case. Apparently
attempting to discover whether Moudy or anyone else at the Public
Defender Agency had informed Michaelson of the trial date, the
prosecutor asked Moudy several questions pertaining to whether she
or anyone else in her office had had contact with Michaelson.
Moudy refused to answer these questions; she claimed the attorney-
client privilege. Following a hearing, Superior Court Judge Larry
Weeks ruled against Moudy's claim of privilege and ordered her to
answer. When Moudy still refused to answer, Judge Weeks found her
in contempt and fined her $300 a day until she answered. (That
order has been stayed pending this appeal.)
The issue presented here is whether the attorney-client
privilege shields a lawyer from divulging the fact that a
conversation has occurred between the lawyer and a client. We
conclude that the attorney-client privilege does not protect this
information, and that Moudy's attorney-client relationship with
Michaelson did not give her the right to refuse to answer the
prosecutor's questions about contacts between Michaelson and the
staff of the Public Defender Agency. We therefore uphold Judge
Weeks' decision to hold Moudy in contempt.
At the outset, we note that Moudy raises various
procedural challenges to the proceedings in the superior court.
[Fn. 1] However, Moudy did not object to these alleged procedural
errors during the litigation in the superior court, and she has
failed to show that her substantive rights were affected by any of
the alleged procedural flaws. Accordingly, we reject these
procedural attacks on Judge Weeks' decision. We now turn to
Moudy's primary claim: that the attorney-client privilege
authorized her to refuse to disclose whether Michaelson had had
contact with the Public Defender Agency.
The attorney-client privilege, codified in Alaska
Evidence Rule 503, authorizes an attorney "to refuse to disclose
. . . confidential communications made for the purpose of facili-
tating the rendition of professional legal services to the client."
[Fn. 2] Thus, in broad terms, Moudy is privileged to refuse to
disclose the content of any confidential communication between
herself and Michaelson if the communication was made to facilitate
her legal representation of Michaelson. Besides a client's direct
communications with the attorney, the attorney-client privilege
also protects the client's communications with "the lawyer's
representative[s]." [Fn. 3] Thus, not only Michaelson's
confidential communications with Moudy, but also Michaelson's
confidential communications with other members of the Public
Defender Agency's staff would presumptively be protected.
However, not all communications between lawyer and client
qualify as "confidential communications" within the meaning of
Alaska Evidence Rule 503. In Downie v. Superior Court, [Fn. 4] we
held that the attorney-client privilege does not shield an
attorney from answering whether the attorney ever informed a client
of the client's trial date. In accord with the essentially
unanimous view of American jurisdictions, we concluded that "the
attorney-client privilege protects confidences between attorney and
client imparted for the purpose of securing legal advice or
representation, but the privilege does not cover an attorney's act
of conveying to the client a third-party's communication" such as
the trial judge's announcement of a trial date. [Fn. 5]
Moudy's basic argument in this appeal is that Downie sets
the outer boundary of permissible questioning, and that the
attorney-client privilege protects an attorney from having to
provide any other information about his or her contacts with a
client, or about contacts between the client and the attorney's
staff. This is a misreading of Downie.
When Moudy's case is compared to the facts of Downie, it
is evident that Downie posed the more difficult legal issue. The
attorney in Downie was ordered to divulge a portion of the content
of an attorney-client communication the fact that the attorney
had informed the client of the client's next scheduled court date.
Moudy, on the other hand, challenges the superior court's authority
to order her to divulge whether an attorney-client communication
occurred between Michaelson and other members of the Public
Defender Agency staff. The view of courts from around the country
is that the attorney-client privilege does not authorize an
attorney to refuse to disclose the fact that communications have
taken place between a client and an attorney.
The case law on this point is summarized in the following
passage from Stephen A. Saltzburg, Michael M. Martin, and Daniel J.
Capra, Federal Rules of Evidence Manual (7th ed. 1998), Vol. 2,
pp. 711-12:
[T]he [attorney-client] privilege does not
protect the preliminary aspects of the attorney-client relationship
itself. These matters, which have been referred to as the
"incidents of representation," include the client's name, the
amount and payment of a fee, and the fact of consultation. The
incidents of representation are not generally considered privileged
because they are independent of the confidential communications
necessary for the representation. The identity of the client, the
fee, and the fact and extent of representation are generally
incidental to the formation and maintenance of the relationship,
and have nothing to do with the free flow of information once that
rela-tionship has been established. . . . As Judge Winter stated
in the leading case of In re Shargel, 742 F.2d 61 (2d Cir. 1984):
Absent special circumstances,
disclosure of the identity of the client and fee information stand
on a footing different from communi-cations intended by the client
to explain a problem to [the] lawyer in order to obtain legal
advice.... A general rule requiring disclosure of the fact of
consultation does not place attorneys in the professional dilemma
of cautioning [the client] against disclosure and [thereby]
rendering perhaps ill-informed advice or [on the other hand]
learning all the details and [thus] perhaps increasing the perils
to the client of disclosure. [Fn. 6]
Thus, in most circumstances, the attorney-client privi-
lege does not shield an attorney from disclosing the fact that a
client has contacted the attorney or the attorney's firm. Some of
the cases that acknowledge and apply this rule are: Matter of
Walsh [Fn. 7] ("Some areas of inquiry have been held not privileged
because they are not communications or are not confidential. For
example, the fact of communication between a known client and his
attorney is not a privileged communication."); United States v.
Schenectady Savings Bank [Fn. 8] ("The fact that a particular known
client has communicated with an attorney is not privileged under
the general rule."); State v. Breazeale [Fn. 9] (finding no
disclosure of confidential communication when the defendant's
former lawyer testified that he had communicated by telephone with
the defendant to notify him that his presence in court was
required); Seventh Elect Church in Israel v. Rogers [Fn. 10]
(information concerning the amount, source, and manner of payment
of legal fees is not protected by the attorney-client privilege
because such information does not convey the substance of
confidential communications between the attorney and the client);
Security Industries, Inc. v. Fickus [Fn. 11] ("[T]he attorney-
client privilege should be applied only to protect communications,
not facts.").
As explained above, Moudy has been ordered to divulge
whether she informed Michaelson of the trial date, and whether
Michaelson had contact with other members of the Public Defender
Agency. Judge Weeks correctly ruled that the attorney-client
privilege did not justify Moudy's refusal to answer the challenged
questions. Moudy was properly required to say whether she or any
other members of the Public Defender Agency staff spoke with
Michaelson.
For these reasons, we affirm the judgment of the superior
court. Moudy could properly be held in contempt for refusing to
say whether communications occurred between Michaelson and members
of the Public Defender Agency's staff (including herself).
Having affirmed Judge Weeks' decision, we also reaffirm
our holding in Downie: the attorney-client privilege does not
protect an attorney's act of communicating a trial date to a
client. This is true whether the trial date was communicated to
the client directly by the attorney or, alternatively, by a member
of the attorney's staff. Moudy can be required to answer whether
she informed Michaelson of the trial date. Moudy can also be
required to answer whether, to her knowledge, another member of the
Public Defender Agency staff informed Michaelson of the trial date.
If Moudy answers this latter question in the affirmative, her
answer might well be hearsay (unless she personally participated in
the conversation). However, under Downie, other members of the
Public Defender Agency staff can be required to answer whether they
informed Michaelson of the trial date.
The judgment of the superior court is AFFIRMED, and this
case is remanded to the superior court for further proceedings
consistent with this opinion.
FOOTNOTES
Footnote 1:
Specifically, Moudy argues:
(1) that Moudy's subpoena to attend the
grand jury was improperly issued, since the prosecutor had not
secured prior judicial approval for the subpoena; see Alaska
Professional Conduct Rule 3.8(f)(2);
(2) that, when this error was caught, the
prosecutor scheduled an expedited hearing in the superior court
without following the proper motion practice;
(3) that Moudy received only a few hours'
notice of this hearing; and
(4) that when Judge Weeks ultimately
rejected Moudy's claim of attorney-client privilege and held Moudy
in contempt for failing to answer questions at grand jury, he
failed to reduce his ruling to writing; see Alaska Civil Rule
90(a).
Footnote 2:
A.R.E. 503(b).
Footnote 3:
A.R.E. 503(b)(1).
Footnote 4:
888 P.2d 1306 (Alaska App. 1995).
Footnote 5:
888 P.2d at 1308.
Footnote 6:
Although Saltzburg states (and approves) the general rule
that the attorney-client privilege does not shield a lawyer from
disclosing the fact of the client's consultation, Saltzburg at the
same time acknowledges a limited exception: the attorney-client
privilege will shield the lawyer from divulging the fact of a
client's consultation if this information would tend to disclose a
confidential communication, or if it would tend to disclose the
client's previously unrevealed connection to the matter on which
legal advice was sought. Id. at 712-13.
Footnote 7:
623 F.2d 489, 494 (7th Cir. 1980).
Footnote 8:
525 F. Supp. 647, 654 (N.D.N.Y. 1981).
Footnote 9:
713 P.2d 973 (Kan. 1986).
Footnote 10:
688 P.2d 506 (Wash. 1984).
Footnote 11:
439 P.2d 172, 177 (Alaska 1968).
