Wednesday, March 24, 2010
On March 10, 2010, the KSC heard arguments in State of Kansas (Appellee) v. Valerie Gonzalez (Appellee) and Sarah Sweet McKinnon (Appellant), which we previously blogged about here. The appeal stems from a district court’s finding of contempt against Ms. McKinnon for failing to divulge the identity and communications of a prior client who had informed her about a potential willingness to give false testimony in Valerie Gonzalez’s first-degree murder trial. In the district court, Ms. McKinnon, who is the Chief Public Defender for the Reno County Public Defender Office (and who also represented Ms. Gonzalez in the murder case at one point), was subpoenaed by the State to testify about statements made by the former client. The State learned of the statements from a motion to withdraw. When Ms. McKinnon refused to testify, the district court held her in contempt. Roger Falk represented Ms. McKinnon in the district court and handled the case on appeal. I was on hand for the oral argument in this case, as were 30 to 40 other members of the criminal defense bar. For those who were unable to attend, here is a link to an audio recording of the oral argument. The key issue in the case seems to be whether the communications between the former client and Ms. McKinnon were covered by the statutory privilege in K.S.A. 60-426 (the State claims in part that the identity of the client is the only issue involved and that information is not privileged). Under K.S.A. 60-426(b), the lawyer-client privilege will not apply “to a communication if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the legal service was sought or obtained in order to enable or aid the commission or planning of a crime or a tort . . . .” Based on my limited knowledge of the facts of this case, it seems that there is little evidence apart from the communication itself that a crime was going to be committed. Probably more importantly, it seems that Ms. McKinnon’s former client was not obtaining her advice to aid in the commission of any crime (perjury), rather it just came out that the former client intended to commit the crime. If I am correct in this assessment of the facts, the crime-fraud exception probably will not apply, and the communications will be held to be privileged. In addition to the issue of privilege, several justices were concerned whether the State did everything they could to investigate the identity of the person who made the statements before subpoenaing Ms. McKinnon and asking her to reveal confidential communications. See Rule 3.8(e) of the Kansas Rules of Professional Conduct. If the initial subpoena of Ms. McKinnon was improper, then that might affect the judgment of contempt. We will provide an update of this case when the court issues an opinion.