PD contempt citation reversed

Roger Falk won in State v. Gonzalez and Sweet-McKinnon, No. 102,400 (Kan. June 18, 2010), reversing and setting aside a contempt violation against Reno County Chief Public Defender Sarah Sweet-McKinnon. (We blogged about this case previously here and here.) The case arose out of an attempt to subpoena a public defender to disclose the identity of a former client she had indicated may commit perjury in the underlying Reno County murder prosecution. She resisted and was found in direct contempt of court.

The KSC reversed:

A prosecutor who seeks to have criminal defense counsel testify about a current or former client's confidential information must file a motion for issuance of a subpoena. On hearing the motion, Kansas Rule of Professional Conduct 3.8(e) is the analytical rubric for a district court judge. Under it, the district judge may not issue such a subpoena unless the prosecutor establishes that (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information. The grounds for quashing such a subpoena may include the nonexistence of any of the three KRPC 3.8(e) factors, as well any of the other factors listed in K.S.A. 60-245(c). The initial determinations made on the KRPC 3.8(e) factors in order to issue the subpoena have no preclusive effect, as those determinations were made without the participation of the attorney subject to the subpoena. Thus the State retains the burden of demonstrating the existence of each of the KRPC 3.8(e) factors, with one modification: If the attorney invokes the attorney-client privilege, the attorney has the burden to show the privilege applies; if, on the other hand, the State contends an exception to the privilege applies, the State has the burden of establishing the existence of the exception.

The KSC held that the state did not meet the first element of this test:

The attorney's summary of the client's expression of an intention to commit perjury is the only evidence, and merely reed-thin circumstantial evidence, that the former client sought legal services to facilitate a future crime. K.S.A. 60-426(b)(1) requires additional evidence before the crime-fraud exception to attorney-client privilege will arise.

And the state failed to meet the third element of the test as well:

Again, the only evidence as to the third factor was the testimony of Moore, the detective who conducted the fruitless interviews of the seven newly endorsed witnesses. Although Moore said he believed that there were no other possible avenues of investigation, as oral argument to this court demonstrated, it would have taken little time and less imagination to discern other directions and strategies more likely to lead to helpful information. Unless these directions and strategies were attempted and failed, the State did not demonstrate that there were no feasible alternatives other than to coerce McKinnon's testimony. Even if the crime-fraud exception arose to defeat the attorney-client privilege under the first factor of KRPC 3.8(e), the third factor should have prevented issuance of the McKinnon subpoena in the first place or prevented its enforcement on her motion to quash.

As a result, the contempt citation is reversed.

Here is coverage in the Hutch News.