State v. Gonzalez

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,400

STATE OF KANSAS,
Plaintiff/Appellee,

v.

VALERIE GONZALEZ,
Defendant/Appellee.

and

SARAH SWEET-MCKINNON,
Contemner/Appellant.


SYLLABUS BY THE COURT

1.
K.S.A. 20-1205 and K.S.A. 60-2102(a)(4) provide appellate jurisdiction to address
a civil contempt order as well as the district court judge's underlying decisions on the
issuance of a subpoena and a motion to quash.

2.
An appellate court reviews a determination that conduct is contemptuous under a
de novo standard; contempt sanctions are reviewed for abuse of discretion.

3.
A district court judge's decision on a motion to quash a subpoena is reviewed on
appeal for abuse of discretion. Discretion is abused when judicial action is arbitrary,
fanciful, or unreasonable. Still, an appellate court has unlimited review of legal
conclusions upon which a district court judge's discretionary decision is based. Moreover,
even if a decision is entrusted to the discretion of a district court judge, and he or she
2

correctly understands and applies the controlling legal standards, the facts upon which the
discretionary decision must depend may still be challenged on appeal as unsupported by
substantial competent evidence in the record.

4.
If the underlying facts concerning the applicability of a privilege are not in
dispute, appellate review is plenary.

5.
A privilege is a rule of evidence that allows a person to shield a confidential
communication or information from compelled disclosure during litigation. The Kansas
attorney-client privilege protects from compelled disclosure certain confidential
communications made between an attorney and client in the course of their professional
relationship. In contrast, an attorney's ethical duty of client confidentiality arises under
the Kansas Rules of Professional Conduct and is broadly applicable to all information
related to representation of a client and in all situations other than those where evidence
is sought from the lawyer through compulsion of law.

6.
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) (2009 Kan. Ct. R. Annot. 564)
factors, as well any of the other factors listed in K.S.A. 60-245(c). The initial
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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.

7.
On the record of this case as developed so far, the attorney-client privilege applies
to prevent disclosure of the identity of the former client of criminal defense counsel. 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.

8.
Although the attorney-client privilege usually does not extend to a client's name or
identity, when the content of a confidential communication has already been revealed by
the attorney without the client's permission, the client's name or identity must be
protected from disclosure to achieve the purpose of the privilege.

9.
On the record of this case as developed so far, the State has failed to establish that
it has no feasible alternative to obtain the information it seeks through a subpoena to
criminal defense counsel.

Appeal from Reno District Court; JOSEPH L. MCCARVILLE, III, judge. Opinion filed June 18,
2010. Reversed and remanded with directions.
4


Roger L. Falk, of Law Office of Falk and Cotton, P.A., of Wichita, argued the cause and was on
the briefs for appellant.

Kristafer R. Ailslieger, assistant solicitor general, argued the cause, and Stephen D. Maxwell,
senior assistant district attorney, Keith E. Schroeder, county attorney, and Steve Six, attorney general,
were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: Sarah Sweet-McKinnon, the Chief Public Defender for the Reno County
Public Defender's office, appeals a judgment finding her guilty of direct civil contempt
and imposing a $1,000 per day coercive sanction. The contempt judgment and sanction
arose out of McKinnon's refusal to testify under subpoena by the State concerning a
statement made by a former client, who expressed an intent to commit perjury in the
prosecution of defendant Valerie Gonzalez. We transferred the appeal from the Court of
Appeals on McKinnon's motion pursuant to K.S.A. 20-3017.

FACTUAL AND PROCEDURAL BACKGROUND

In early 2007, McKinnon was appointed to represent defendant Gonzalez on a
charge of first-degree murder. McKinnon or one of the attorneys she supervised in the
Reno County Public Defender's Office represented another defendant on an unrelated
case who was in custody at the Reno County Jail at the same time as Gonzalez. At some
point, the other client informed her counsel that she intended to commit perjury in
Gonzalez' case. The public defender's office filed a motion to withdraw from the other
client's case. The case against Gonzalez was dismissed in June 2007.

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In January 2009, the State refiled the case against Gonzalez, and McKinnon was
again appointed to represent her. The new complaint listed several endorsed witnesses
who had not been listed on the 2007 complaint, seven of which were former clients of the
public defender's office who had been housed at the Reno County Jail at the same time as
Gonzalez in 2007. Among them was the former client who had expressed the intent to
commit perjury in Gonzalez' case.

Given the seven newly endorsed witnesses, McKinnon filed a motion to withdraw
as Gonzalez' attorney. The motion included the following statements:

"3. In all of the prior representations of the seven prior Public Defender clients,
the movant has actual information by virtue of the prior representation that would
severely restrict the scope of cross-examination of these prosecution witnesses to avoid
possible violation of the attorney client privileges of the state's witnesses, including, but
not limited to:

'a. A statement by a former client of the Public Defender's office that was made
during representation that the prior client intended to commit perjury in Ms.
[Gonzalez'] case, who is now a prosecution witness.'"

The district judge granted McKinnon's motion to withdraw and appointed new
counsel for Gonzalez.

The State then filed a motion to issue a subpoena for McKinnon to appear and
testify at Gonzalez' preliminary hearing. The motion was based on Kansas Rule of
Professional Conduct (KRPC) Rule 3.8(e) (2009 Kan. Ct. R. Annot. 565), which
prohibits a prosecutor from subpoenaing a lawyer in a criminal proceeding "to present
evidence about a past or present client unless the prosecutor reasonably believes" the
evidence is not protected by privilege, is essential to the successful completion of the
prosecution, and "there is no other feasible alternative to obtain the information[.]" In its
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motion, the State requested that the district judge make findings on each of the KRPC
3.8(e) factors. The State explained it was using this unusual procedure out of an
"abundance of caution and in light of the serious nature of causing a subpoena [to issue]
for a criminal defense attorney[.]"

At the hearing on the motion, the State called Reno County Police Detective John
Moore. Moore had conducted the investigation to determine which of the State's endorsed
witnesses might have made the statement referenced in McKinnon's motion to withdraw.
Moore's testimony about those efforts is as follows:

"Q: [Prosecutor] And did you, as part of this investigation in the case, did you attempt to .
. . locate and interview the witness endorsed by the State that could possibly be the
witness that Ms. McKinnon indicated may intend to commit perjury?

"A: [Moore] Yes.

"Q: Okay. And when you interviewed these particular witnesses, how many total was
there?

"A: Sixteen.

. . . .

"Q: Okay. And were you able to, during the interviews of these witnesses, find any
witness who would support or agree with the statement made by Ms. McKinnon in the
motion?

"A: No.

"Q: In fact did some of the witnesses indicate that they never even heard of Ms.
McKinnon?

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"A: I have at least five who had never heard of her.

"Q: Okay. And the ones who had heard of her, did those witnesses indicate whether or
not they had ever discussed the Gonzalez case with Ms. McKinnon?

"A: Not one of the witnesses ever said that they had discussed this case with Ms.
McKinnon.

"Q: Okay. Based on this particular investigation, were you able to find any support in the
witnesses, or evidence to support the allegation that was made?

"A: No.

"Q: Did you have any other avenues in the investigation to undertake other than doing
this particular interview of these witnesses? Did you have any other ways you could go to
try to look into it?

"A: No, I've tried to locate each and every one of them. I did speak to each and every one
of them.

"Q: Did you, in your own mind, have any other avenues of possible investigation other
than what you already did?

"A: No. "

The district judge granted the State's motion to issue the subpoena, ruling that each of the three
KRPC 3.8(e) factors had been established.

On the first factor, the district court held that the information sought was not
protected by the attorney-client privilege because the crime-fraud exception applied. See
K.S.A. 60-426(b)(1) (attorney-client privilege does not apply to communication when
sufficient evidence, aside from communication itself, establishes legal service sought,
obtained to enable, aid commission, planning of crime).
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On the second factor, the district judge held that the information sought was
essential to the successful completion of the prosecution. Because the integrity of the
prosecution could be affected if a prosecution witness had expressed the intent to commit
perjury, and because the prosecutor needed to exercise ethical judgment on whether to
present the witness, the judge believed it to be essential that the State know the witness'
identity.

The district judge also found the State had established the third factor—that there
was no other feasible alternative to obtain the information—because of Moore's
testimony on his interviews.

The State then issued and served McKinnon with a subpoena to appear and testify.
The prosecutor informed McKinnon that he intended to ask her the following questions
concerning the former client's expressed intent to commit perjury in Gonzalez' case: Who
made the statement? When was it made? What words were used? What were the
circumstances? In what form did she receive that communication?

McKinnon filed a motion to quash the subpoena, arguing that answering the
prosecutor's questions would violate her duty of client confidentiality under KRPC 1.6
(2009 Kan. Ct. R. Annot. 468) and KRPC 1.9 (2009 Kan. Ct. R. Annot. 490), exposing
her to disciplinary action.

The district judge denied McKinnon's motion to quash. The judge again held that
KRPC 3.8(e) supported the subpoena, i.e., that no privilege existed under the first factor
and that McKinnon had failed to offer sufficient evidence or argument to rebut the second
and third factors. Further, the district judge rejected McKinnon's arguments about her
ethical duty of confidentiality, concluding that the rules did not prohibit McKinnon from
revealing the information. Specifically, the judge noted that KRPC 1.6(b)(1) allows an
9

attorney to reveal client confidences to prevent a client from committing a crime, and
KRPC 1.6(b)(2) protects an attorney from disciplinary action for revealing confidential
client information in compliance with a court order.

Immediately after the district judge's ruling, the prosecutor called McKinnon to the
witness stand. After a few preliminary questions, the prosecutor asked McKinnon who
had made the statement set out in paragraph 3.a of her motion to withdraw. McKinnon
refused to answer the question. The judge then ordered McKinnon to answer the
question. She again refused. The judge found McKinnon in direct civil contempt of court
and imposed a fine of $1,000 per day until the contempt was purged by McKinnon's
agreement to answer the question.

McKinnon posted an appeal bond to stay execution of the contempt order pending
this appeal. She now raises three interlocking issues. First, she challenges the district
judge's decision that the information was not protected by attorney-client privilege
because of the crime-fraud exception under K.S.A. 60-426(b)(1). Second, if we determine
that the district judge's decision on applicability of the attorney-client privilege was
erroneous, McKinnon argues, the contempt judgment cannot stand. Third, even if the
contempt stands, McKinnon asserts, the coercive sanction is excessive.

The State responds that the district judge properly applied the crime-fraud
exception to the attorney-client privilege and that McKinnon was properly ordered to
answer the question seeking the name of her former client because a client's identity does
not qualify as a privileged communication. The State also argues that the contempt
judgment should stand even if the district court's decision on privilege was in error, as
refusal to comply with a court order is contemptuous even if it is later determined that the
order was erroneous. Last, the State contends that the sanction imposed was not an abuse
of discretion.

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ANALYSIS

To begin our analysis, we must address jurisdiction.

In this appeal from the order finding her in contempt and imposing a sanction,
McKinnon's arguments also are directed at the propriety of underlying rulings on the
issuance of the subpoena and the denial of the motion to quash. Although the parties have
not questioned our jurisdiction to address the validity of the orders that underlie the
contempt judgment, it is our duty to consider the presence or absence of jurisdiction on
our own initiative. See Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007)
(subject matter jurisdiction may be raised at any time, even on court's own motion); State
v. Phinney, 280 Kan. 394, 398, 122 P.3d 356 (2005) ("The right to appeal is purely
statutory, and an appellate court has a duty to question jurisdiction on its own
initiative.").

K.S.A. 20-1205 and K.S.A. 60-2102(a)(4) provide jurisdiction to address the
contempt judgment as well as the underlying decisions on the issuance of the subpoena
and the motion to quash. K.S.A. 20-1205 provides the right to appeal from a contempt
judgment and specifically states that such an appeal is to be taken "in the same manner as
is provided by law in civil cases." The applicable civil appeal statute, K.S.A. 60-
2102(a)(4), expressly provides that in an appeal from a final decision, "any act or ruling
from the beginning of the proceedings shall be reviewable." In addition, the United States
Supreme Court has made clear that an order underlying a civil contempt judgment is
reviewable on appeal of the contempt. See United States v. Mine Workers, 330 U.S. 258,
294-95, 91 L. Ed. 884, 67 S. Ct. 677 (1947) (unlike criminal contempt, validity of
disobeyed order may be reviewed in civil contempt context; right to remedial relief falls
when the underlying order is proved to have been in error); compare State v. Alston, 256
Kan. 571, 584-86, 887 P.2d 681 (1994) (collateral bar rule prohibits review of the validity
of underlying order in criminal contempt appeal, subject to exceptions).
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Several standards of review require consideration in resolving this case.

An appellate court reviews a determination that conduct is contemptuous under a
de novo standard; contempt sanctions are reviewed for abuse of discretion. State v.
Jenkins, 263 Kan. 351, 356, 950 P.2d 1338 (1997); see also In re M.R., 272 Kan. 1335,
1342, 38 P.3d 694 (2002) (same).

A district court judge's decision on a motion to quash a subpoena calling for
disclosure of privileged information is governed generally by K.S.A. 2009 Supp. 60-
245(c)(3)(A)(iii), which provides: "On timely motion, the court by which a subpoena was
issued shall quash or modify the subpoena if it . . . requires disclosure of privileged or
other protected matter and no exception or waiver applies." Another subsection of the
statute provides that a court shall quash or modify a subpoena that "subjects a person to
undue burden." K.S.A. 2009 Supp. 60-245(c)(3)(A)(iv). A further subsection, K.S.A.
2009 Supp. 60-245(c)(3)(B)(iii), is worded more permissively, saying the court "may"
quash or modify a subpoena under certain circumstances not present here, or "may" order
appearance "only upon specified conditions" if "the party in whose behalf the subpoena is
issued shows a substantial need for the testimony or material that cannot be otherwise
met without undue hardship and assures that the person to whom the subpoena is
addressed will be reasonably compensated."

We have previously reviewed district court decisions on motions to quash
subpoenas for abuse of discretion, despite the statute's mixed use of "shall" and "may."
See Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 704, 952 P.2d 1286 (1998) ("Control
of discovery is entrusted to the sound discretion of the trial court"; decision quashing
subpoena duces tecum reviewed for abuse of discretion); In re Tax Appeal of
Collingwood Grain, Inc., 257 Kan. 237, 256, 891 P.2d 422 (1995) (abuse of discretion
standard applied in reviewing motion to quash an administrative subpoena); In re
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Pennington, 224 Kan. 573, 577, 581 P.2d 812 (1978), cert. denied 440 U.S. 929 (1979)
(abuse of discretion standard applied in reviewing district court's denial of news reporter's
motion to quash); In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 480,
932 P.2d 1023 (1997) (decision on motion to quash inquisition subpoena reviewed for
abuse of discretion).

Discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. In
re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006). Under this standard, an
appellate court will not disturb a discretionary decision unless no reasonable person
would have taken the view adopted by the district court. See Vorhees v. Baltazar, 283
Kan. at 393.

Still, even under the deferential abuse of discretion standard of review, an
appellate court has unlimited review of legal conclusions upon which a district court
judge's discretionary decision is based. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan.
443, 456, 14 P.3d 1170 (2000). Because "'[a] district court by definition abuses its
discretion when it makes an error of law. . . [t]he abuse-of-discretion standard includes
review to determine that the discretion was not guided by erroneous legal conclusions.'"
Kuhn, 270 Kan at 456 (quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d
392, 116 S. Ct. 2035 [1996]); see also State v. Shopteese, 283 Kan. 331, 340, 153 P.3d
1208 (2007) (district judge's discretionary decision protected under abuse of discretion
standard "if reasonable persons could differ upon the propriety of the decision as long as
the discretionary decision is made within and takes into account the applicable legal
standards"; what constitutes abuse of discretion necessarily varies "depending upon the
character of the question presented for determination").

Moreover, even if a decision is entrusted to the discretion of a district court judge,
and he or she correctly understands and applies the controlling legal standards, the facts
upon which the discretionary decision must depend may still be challenged on appeal as
13

unsupported by substantial competent evidence in the record. See Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990) (legal
conclusions and fact findings upon which discretionary decision based reviewable for
abuse of discretion; district court necessarily abuses its discretion if ruling based on an
"erroneous view of the law or on a clearly erroneous assessment of the evidence"); cf.
Saucedo v. Winger, 252 Kan. 718, Syl. ¶ 4, 850 P.2d 908 (1993) ("A decision which is
contrary to the evidence or the law is sometimes referred to as an abuse of discretion, but
it is nothing more than an erroneous decision or a judgment rendered in violation of
law."); see also Flautt & Mann v. Council of City of Memphis, 285 S.W.3d 856, 872-73
(Tenn. Ct. App. 2008) (because abuse of discretion may connote error of law, error of
fact, or error in substance, form of trial court's order, review consists of three parts: "(1)
whether the factual basis of the decision is supported by sufficient evidence; (2) whether
the trial court has correctly identified and properly applied the applicable legal principles;
and (3) whether the trial court's decision is within the range of acceptable alternatives").

In Kansas, a district court's factual findings are reviewed under the substantial
competent evidence standard. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16,
157 P.3d 1109 (2007); State v. Jones, 279 Kan. 71, 77, 106 P.3d 1 (2005). In federal
court, Fed. R. Civ. Proc. 52(a)(6) requires a "clearly erroneous" standard of review for
factual findings. The Kansas substantial competent evidence standard and its federal
counterpart are very similar to the abuse of discretion standard. All three provide a great
deal of deference to a district court's decision made within a zone of reasonableness. See
Cooter & Gell, 496 U.S. at 400-01 (when an appellate court reviews a district court's fact
findings, the abuse of discretion standard and the clearly erroneous standard are
"indistinguishable" as both protect district court determinations that fall "within a broad
range of permissible conclusions").

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A district court abuses its discretion only when no reasonable person would take
the view adopted by the district court. State v. Sanchez-Cazares, 276 Kan. 451, 454, 78
P.3d 55 (2003). Similarly, substantial competent evidence is that which

"possesses both relevance and substance and which furnishes a substantial basis of fact
from which the issues can reasonably be resolved. In other words, substantial evidence is
such legal and relevant evidence as a reasonable person might accept as being sufficient
to support a conclusion." (Emphases added.) Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 2,
136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007).

In addition, as we have held, "[j]udicial discretion will vary depending upon the
character of the question presented for determination." State v. Shopteese, 283 Kan. at
340. When a discretionary decision requires fact-based determinations, a district court
abuses its discretion when the decision is based on factual determinations not supported
by the evidence.

Finally, a de novo standard comes into play in this case on the question of
privilege. If the underlying facts concerning the applicability of a privilege are not in
dispute, appellate review is plenary. See State v. Jones, 287 Kan. 547, 554, 198 P.3d 756
(2008) (citing Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan. App. 2d 403, 436-37,
6 P.3d 871 [1999]) (when underlying facts undisputed, existence of attorney-client
privilege reviewed de novo).

General Distinction Between Privilege Law and Attorney Ethics Rules on
Client Confidences

The parties have argued both the attorney-client privilege and the various
disciplinary rules concerning an attorney's ethical duties with respect to client
confidences and, at times, appear to confuse the two. Because there are fundamental and
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significant differences between these lines of authority and their applicability, it is
necessary that we first clarify that we face one and not the other here.

A privilege is a rule of evidence that allows a person "to shield [a] confidential
communication or information from compelled disclosure during litigation."
Imwinkelried, The New Wigmore: Evidentiary Privileges § 1.1, p. 2 (2d ed. 2009). In
Kansas, the attorney-client privilege is statutory. It is found in the code of evidence at
K.S.A. 60-426, which reads in pertinent part:

"(a) . . . [E]xcept as otherwise provided by subsection (b) of this section
communications found by the judge to have between lawyer and his or her client in the
course of that relationship and in professional confidence, are privileged, and a client has
a privilege . . . (2) to prevent his or her lawyer from disclosing it. . . . The privilege may
be claimed by the client in person or by his or her lawyer . . . .

"(b) . . . . Such privileges shall not extend (1) 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 . . . ." K.S.A. 60-426.

This statute protects from compelled disclosure certain confidential
communications made between an attorney and client in the course of their professional
relationship. The privilege applies narrowly because, like all privileges, it operates to
deprive the factfinder of otherwise relevant information. In re Bryan, 275 Kan. 202, 222,
61 P.3d 641 (2003) (citing State ex rel. Stovall v. Meneley, 271 Kan. 355, 373, 22 P.3d
124 [2001]).

In contrast, an attorney's ethical duty of client confidentiality arises under the
Kansas Rules of Professional Conduct and is part of a system of professional ethical
standards designed to "provide guidance to lawyers and . . . a structure for regulating
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conduct through disciplinary agencies." Supreme Court Rule 226, Scope [20] (2009 Kan.
Ct. R. Annot. 405). A violation of an ethical rule "should not itself give rise to a cause of
action against a lawyer" or "necessarily warrant any other nondisciplinary remedy, such
as disqualification of a lawyer in pending litigation." Supreme Court Rule 226, Scope
[20]; see also OMI Holdings, Inc. v. Howell, 260 Kan. 305, 325, 918 P.2d 1274 (1996)
(discussing Supreme Court Rule 226; ethics rules do not impose legal duty on attorneys).
In contrast to the attorney-client privilege, which is a rule of evidence and applies only
when the attorney "may be called as a witness or otherwise required to produce evidence
concerning a client[,]" the attorney's ethical duty of confidentiality under the disciplinary
rules "applies in all situations other than those where evidence is sought from the lawyer
through compulsion of law." (Emphasis added.) Comment [5] to KRPC 1.6 (2009 Kan.
Ct. R. Annot. 469). Further, in contrast to the narrow scope of the attorney-client
privilege, the ethical duty of client confidentiality applies broadly to all information
related to representation of a client. KRPC 1.6(a); Comment [5] (2009 Kan. Ct. R. Annot.
468-69). It is expansive because the cloak of confidentiality is intended to "facilitate the
full development of facts essential to proper representation of the client[.]" Comments [2]
and [4] to KRPC 1.6 (2009 Kan. Ct. R. Annot. 469).

There is some overlap between the ethical duty of confidentiality and the attorney-
client privilege. By definition, all communications protected by the attorney-client
privilege will be confidential and covered by the ethical duty. K.S.A. 60-426(a)
(communication must have been made in professional confidence). That overlap is the
reason why the ethical duty of confidentiality requires an attorney to invoke the attorney-
client privilege when it is applicable. Comment [13] to KRPC 1.6 (2009 Kan. Ct. R.
Annot. 470). But not all client confidences inevitably must be protected through
invocation of attorney-client privilege.

This is, at base, a privilege case. McKinnon invoked the attorney-client privilege
to prevent her compelled disclosure of what she believed to be confidential client
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information. Such compulsion of her testimony was and is governed by K.S.A. 60-426
and any court decisions interpreting, construing, and/or applying it.

This is one such decision. The attorney ethics rules on client confidences provide
important context to our analysis of the contours of K.S.A. 60-426 attorney-client
privilege when a prosecutor attempts to compel a criminal defense attorney to speak, but
they do not control it. As the following subsections of our analysis illustrate, another
attorney ethical rule, KRPC 3.8(e) (2009 Kan. Ct. R. Annot. 564), does provide an
essential overlay to the privilege statute and K.S.A. 2009 Supp. 60-245(c)(3) on motions
to quash in situations of this type. It requires certain procedures and proof when a
prosecutor seeks a subpoena directed to criminal defense counsel and when the subject of
the subpoena seeks to quash such a subpoena.

K.S.A. 60-426 Attorney-Client Privilege and KRPC 3.8(e)

Having addressed the general distinction between privilege law and attorney ethics
rules on client confidences, we now turn to the extraordinary nature of the situation in
this case and the applicable attorney ethics rule, i.e., a prosecutor's issuance of a
subpoena to compel testimony about a former client from a defense lawyer in a criminal
proceeding and KRPC 3.8(e). The prosecutor invoked KRPC 3.8(e) to obtain issuance of
the subpoena to McKinnon. He did so with good reason. KRPC 3.8(e) speaks directly to
the prosecutor's ethical obligation in such a mercifully rare scenario, and it prohibits a
prosecutor from subpoenaing a defense lawyer in a

"criminal proceeding to present evidence about a past or present client unless the
prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable
privilege;

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(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." 2009 Kan. Ct.
R. Annot. at 565.

At least three underlying principles are evident in the language of this rule.

First, the prosecutor's role in our criminal justice system is unique, and it carries
concomitant responsibilities. The prosecutor is a representative of the government in an
adversary criminal proceeding, which means he or she must be held to a standard not
expected of attorneys who represent "ordinary" parties to litigation. Berger v. United
States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935). As we stated in State v.
Pabst, 268 Kan. 501, 996 P.2d 321 (2000):

"A prosecutor is a servant of the law and a representative of the people of
Kansas. . . . Sixty-five years ago the United States Supreme Court said that the
prosecutor represents

'a sovereignty whose obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done.' Berger v. United States, 295 U.S. [at] 88." 268
Kan. at 510.

The comments to KRPC 3.8, Comment [1] (2009 Kan. Ct. R. Annot. 565) make this
explicit: "A prosecutor has the responsibility of a minister of justice and not simply that
of an advocate."

Second, Rule 3.8(e)(1)'s near-total prohibition on subpoenas directed to an
attorney to obtain evidence protected by privilege reinforces the indispensability of
attorney-client privilege in the effective and efficient functioning of the administration of
19

justice. The attorney-client privilege is the oldest of the common-law privileges and
exists "to encourage full and frank communication between attorneys and their clients" in
order to "promote broader public interests in the observance of law and administration of
justice." Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L. Ed. 2d 584, 101 S. Ct. 677
(1981); see also State ex rel. Stovall v. Meneley, 271 Kan. at 373 (privilege fosters candid
communication); Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg Grain
Co., 250 Kan. 54, Syl. ¶ 10, 824 P.2d 933 (1992) (privilege "should not be set aside
lightly").

Third, the limitations that KRPC 3.8(e)(2) and (3) place on the power to compel an
attorney to provide nonprivileged evidence about a client "to those situations in which
there is a genuine need to intrude in the client-lawyer relationship" communicate a
general unwillingness to intrude. See Comment [4] to KRPC 3.8 (2009 Kan. Ct. R.
Annot. 566). These limitations are based on "the generally accepted principle that the
attorney-client relationship should not be disturbed without cause." United States v.
Colorado Supreme Court, 189 F.3d 1281, 1288 (10th Cir. 1999) (construing Colorado's
equivalent to KRPC 3.8[e]). In Colorado Supreme Court, the Tenth Circuit explained the
bases for the special protections the law affords the attorney-client relationship:

"The importance of the attorney-client relationship is evidenced by the various
privileges which protect it. The attorney-client privilege is 'one of the oldest recognized
privileges for confidential communication known to the common law' and works to foster
the underlying relationship. Upjohn Co. v. United States, 449 U.S. . . . [at] 389 . . . ; see
also Swidler & Berlin, 524 U.S. 399, 141 L. Ed. 2d 379, 118 S. Ct. 2081, 2084 (1998).
Similarly, the work product privilege fosters

'the general policy against invading the privacy of an attorney's course of
preparation [which] is so well recognized and so essential to an orderly
working of our system of legal procedure that a burden rests on the one
who would invade that privacy to establish adequate reasons to justify
production through a subpoena or court order.'
20


Hickman v. Taylor, 329 U.S. 495, 511, 91 L. Ed. 451, 67 S. Ct. 385 (1947). The legal
profession's 'ethical obligation' of confidentiality is a corollary to these privileges. See
Upjohn Co., 449 U.S. at 391, 101 S. Ct. 677 (citing ABA code of Professional
Responsibility, 4-1)." United States v. Colorado Supreme Court, 189 F.3d at 1287.

We also note that discovery limitations imposed on parties seeking attorney work
product are similar to the need-based limitations of KRPC 3.8(e)(2) and (3). The work
product rule, codified at K.S.A. 60-226(b)(4), permits discovery of attorney work product
only upon "'"a showing that the party seeking discovery has a substantial need for the
material and cannot without undue hardship obtain the substantial equivalent by other
means."'" Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, 218, 50
P.3d 66 (2002) (quoting Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407,
426, 997 P.2d 681 [2000]).

The work-product limitations are based on policy considerations that are similar to
those underlying the attorney-client privilege. "'[W]ork product immunity rests on the
idea it is necessary to preserve the independence of the lawyer and thus, indirectly, the
adversary system.' [Citation omitted.]" Wichita Eagle & Beacon Publishing Co., 274
Kan. at 218. Specifically, the work product rule is based on

"'the need for the lawyer handling a case to have full rein to develop his theory
and strategy in the case if the adversary system is to work effectively. To perform this
role the lawyer needs to be able to work without fear of disclosure, at least in the earlier
stages of preparation. And he needs protection from the possibility that he will be cast in
the role of a witness and, even worse, of a witness antagonistic to other witnesses upon
whose testimony his client's case may depend.' [Citations omitted.]" 274 Kan. at 218-19.

The requirement that there be a genuine need in order to compel an attorney to
provide information relating to representation of a client found both in the work-product
21

rule and in KRPC 3.8(e)(2) and (3) also implicitly recognizes the chilling effect such a
subpoena can have on the trust that is an essential component of the attorney-client
relationship. United States v. Colorado Supreme Court, 189 F.3d at 1288 (client's
concern over whether attorney will testify against him, withdraw "inevitably" undermines
important trust, openness); United States v. Klubock, 832 F.2d 649, 653 (1st Cir. 1987)
(Klubock I), vacated by 832 F.2d 664 (1st Cir.1987) (equally divided en banc court)
(Klubock II) (discussing Massachusetts ethics rule similar to KRPC 3.8[e], noting
problems inherent in such subpoenas include driving "a chilling wedge between the
attorney/witness and his client," causing client to be "uncertain at best, and suspicious at
worst, that his legitimate trust in his attorney may be subject to betrayal"); see also
Whitehouse v. United States Dist. Court for Dist. of Rhode Island, 53 F.3d 1349, 1358
(1st Cir. 1995) (noting decision in Klubock I vacated because court sitting en banc
equally divided; nevertheless approving Klubock I rationale).

The need-based requirements of KRPC 3.8(e)(2) and (3) also implicitly recognize
the potential for abuse and harassment that exists when a prosecutor issues a subpoena to
opposing defense counsel. Potential misuse includes interference with a defendant's Sixth
Amendment right to counsel by diverting the attorney's time and resources from the client
through creation of a "second front" in the litigation and, ultimately, by forcing counsel's
withdrawal or disqualification. See Klubock I, 832 F.2d at 653-54; Whitehouse, 53 F.3d at
1358.

At the time the district judge considered issuance of the subpoena to McKinnon in
this case, we had made no statement that he was obligated to conduct a KRPC 3.8(e)
analysis. It has not previously been discussed in interpreting, construing, or applying
attorney-client privilege under K.S.A. 60-426. However, the prosecutor's instinct in
seeking judicial intervention before seeing that the subpoena was issued and served and
in invoking KRPC 3.8(e) in his motion for the subpoena was correct. Likewise, the
judge's decision to follow the prosecutor's lead on this point, evaluating the three factors
22

of KRPC 3.8(e) before permitting the subpoena to be issued was correct. The arguments
pursued and procedures followed by the prosecutor and judge demonstrate their
appreciation for the extraordinary nature of the action sought and the essential quality of
the relationship McKinnon believed herself duty-bound to protect. Weighty interests are
at stake when the issuance of such subpoenas is contemplated, and it is appropriate—
indeed, we decide today necessary—to proceed with extreme caution.

In view of the role and importance of a trustworthy and confidential attorney-
client relationship, particularly in our adversary system of criminal justice, and of the
potential for damage to that system if the relationship is too cavalierly invaded or
compromised, we hereby adopt the procedure followed here as a requirement. Moreover,
we approve KRPC 3.8(e) as the analytical rubric for a district court judge considering a
prosecutor's motion for issuance of a subpoena to compel criminal defense counsel to
testify about a current or former client's confidential information. A judge may not issue
such a subpoena unless the prosecutor files a motion and 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 first of the factors, the existence of a privilege under K.S.A. 60-426, acts as a
threshold consideration, as a privilege generally cannot be overcome by a showing of
need. See Admiral Ins. v. United States Dist. Court for Dist. of Ariz., 881 F.2d 1486,
1494-95 (9th Cir. 1989) (privilege takes precedence over need for information); The St.
Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d 771, 776-77 (Ky. 2005) ("when a
communication is protected by the attorney-client privilege it may not be overcome by a
showing of need by an opposing party to obtain the information contained in the
privileged communication"); compare K.S.A. 2009 Supp. 60-245(c)(3)(A)(iii) (subpoena
shall be quashed if information sought protected by privilege) and K.S.A. 2009 Supp. 60-
245(c)(3)(B)(i) (in considering a motion to quash or modify subpoena for confidential
23

trade secrets or commercial information, if issuing party shows substantial need for the
information, court may impose protective conditions on attendance/production); see also
Wesley Medical Center v. Clark, 234 Kan. 13, 20-27, 669 P.2d 209 (1983) (recognizing
difference between absolute privilege, qualified privilege; absolute privilege makes need
irrelevant; qualified privilege allows court to control discovery of nonprivileged
confidential information based on considerations that include need).

Accordingly, if the evidence the prosecutor seeks is protected from disclosure by
the statutory attorney-client privilege, the KRPC 3.8(e) criteria cannot be met and the
subpoena cannot issue, regardless of whether the information is essential to the
prosecution and there is no other feasible alternative to obtain the information. If,
however, the prosecutor establishes that the information is not protected by the privilege,
then the last two factors must also be established in order to approve the issuance of the
subpoena.

If the subpoena is approved and served, the attorney subject to the subpoena may
file a motion to quash. The grounds for quashing the subpoena may include a challenge to
the existence of any of the three KRPC 3.8(e) factors, as well as any of the other factors
listed in K.S.A. 60-245(c). On such a motion to quash, 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. State ex rel. Stovall v.
Meneley, 271 Kan. at 374 (party asserting attorney-client privilege bears burden of proof
to establish all essential elements of it). 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. See Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg
Grain Co., 250 Kan. at 60-61 (party seeking to invoke crime-fraud exception bears
24

burden of making out prima facie case of fraud); see also 9 A.L.R. 6th 363, Crime-Fraud
Exception to Attorney-Client Privilege in State Courts: Contemplated Crime (recognizing
general rule that party asserting crime-fraud exception bears burden of establishing prima
facie case of contemplated fraud).

If the court concludes that the information sought is protected by privilege, the
subpoena must be quashed. If the court finds no privilege applies, in order to uphold the
subpoena, the court must find both that the evidence is essential to the successful
completion of an ongoing investigation or prosecution and that no other feasible
alternative exists to obtain the evidence.

The new rule of this case is consistent with our previous rulings affirming that a
prosecutor's role is to see that justice is done, not merely to prevail in his or her cause.
For this reason, the line between disciplinary rules of conduct and the prosecutor's duty to
"refrain from improper methods calculated to produce a wrongful conviction" is not
always distinct. Berger v. United States, 295 U.S. at 88.

For example, prosecutors have both an ethical duty and a legal duty as part of
substantive law to disclose exculpatory evidence to the defense. Compare KRPC 3.8(d)
(2009 Kan. Ct. R. Annot. 564) and Wilkins v. State, 286 Kan. 971, 989, 190 P.3d 957
(2008) (citing Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194
[1963]) (withholding of exculpatory evidence by prosecution implicates defendant's
constitutional rights, considered prosecutorial misconduct).

Similarly, a prosecutor has both an ethical duty and a legal duty as part of
substantive law to refrain from offering personal opinions concerning certain matters,
including the credibility of a witness and the guilt of the accused. Compare KRPC 3.4(e)
(2009 Kan. Ct. R. Annot. 552) and State v. Pabst, 268 Kan. at 506, 510 (court relies upon
KRPC 3.4[e], American Bar Association Standards for Criminal Justice [3d ed.1993] to
25

hold prosecutor's comments on witness credibility improper, possibly leading to violation
of defendant's right to fair trial). The court's analysis in Pabst knitted together the
prosecutor's duty as a representative of the State and the duties imposed under ethics
rules:

"[A]s we have observed, [a prosecutor's expressing a personal opinion on the credibility
of a witness] is expressly forbidden by both the KRPC 3.4 and the ABA Standards for
Prosecutors, 3-5.8 Commentary, Personal Belief. Here an assistant attorney general from
the office of the attorney general criminal litigation division introduced into the case his
personal opinion of Pabst's credibility. He ignored his special obligation as a prosecutor
to avoid improper personal insinuations. Because he represented the State of Kansas the
jury might have been misled into thinking his personal opinions were validated by the
weight of the State of Kansas. Such prosecutorial vouching places the prestige of the
State behind the prosecutor's personal assurances." 268 Kan. at 510-11.

Our decision today also is consistent with the well-established principle that
district courts have the authority, independent of a statutory privilege, to prevent or limit
the power of compulsory process when necessary to prevent abuse, harassment, undue
burden or expense, to manage litigation, to prevent violation of constitutionally protected
interests, and to protect confidential matters. Without exception, our statutes and case law
recognize the district court's necessary authority to prevent or limit the power to compel
disclosure of information in virtually every aspect of the civil and criminal litigation
process. Statutes providing this authority include: K.S.A. 60-226(b)(4), limiting
discovery of an attorney's nonprivileged work product materials by requiring the party
seeking the materials to establish substantial need and inability to obtain the substantial
equivalent by other means without undue hardship; K.S.A. 60-226(c), providing power to
issue protective orders in the discovery process to protect a party from annoyance,
embarrassment, oppression, or undue burden or expense; K.S.A. 60-245(c)(3)(A)(iv),
providing broad power to quash subpoena that subjects a person to undue burden); and
K.S.A. 60-245(c)(3)(B)(i), providing that a court may quash or modify a subpoena that
26

requires disclosure of trade secret or other confidential research, development, or
commercial information, unless a showing of substantial need is made, and that, if
substantial need is shown, the court may impose protective conditions on any disclosure.
Under case law, subpoenas are not to be unreasonable or oppressive. See In re Tax
Appeal of Collingwood Grain, Inc., 257 Kan. 237, 256, 891 P.2d 422 (1995). Subpoenas
in aid of civil or criminal litigation are subject to a stringent relevancy requirement. See
State ex rel. Stephan v. Clark, 243 Kan. 561, 568, 759 P.2d 119 (1988). Inquisition
subpoenas under K.S.A. 22-3101 are subject to the district court's inherent power to
prevent prosecutorial abuse of the judicial process. See State ex rel. Cranford v. Bishop,
230 Kan. 799, 800-01, 640 P.2d 1271 (1982) (judicial inquisition subpoenas under
K.S.A. 22-3101[1]); Southwestern Bell Tel. Co. v. Miller, 2 Kan. App. 2d 558, 583 P.2d
1042, rev. denied 225 Kan. 845 (1978) (prosecutorial inquisition subpoenas under K.S.A.
22-3101[2]). When an inquisition subpoena under K.S.A. 22-3101(1) intrudes on a
constitutionally protected privacy interest, the district court's inherent power to prevent
abuse of the judicial process requires the court to balance the State's compelling interest
in pursuing criminal investigations, the privacy rights invaded, the State's need for access,
protective safeguards to prevent unauthorized disclosure, and other public policy
considerations. Alpha Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006). A
district court considering a motion to quash a grand jury subpoena on grounds that it is
overly burdensome or intrudes on privacy interests must balance the grand jury's need for
the materials against the burden or intrusion. Tiller v. Corrigan, 286 Kan. 30, 182 P.3d
719 (2008).

The new rule of this case requiring a motion and approval of the court before a
prosecutor can arrange to issue a subpoena for testimony by criminal defense counsel
also is consistent with the American Bar Association's inclusion of such a requirement in
the 1990 amendment to Rule 3.8 of the Model Rules of Professional Conduct. See A
Legislative History: The Development of the ABA Model Rules of Professional Conduct,
1982-2005, pp. 509-10 (2006). Although the ABA had dropped the judicial approval
27

language in 1995, long before Kansas adopted the current provisions of Rule 3.8(e) in
2007 (2009 Kan. Ct. R. Annot. 564-65), the decision to omit the language was due solely
to discomfort with state court enforcement against federal prosecutors, not to any
conclusion that the attorney-client relationship was undeserving of careful, advance
judicial review of any subpoena that would interfere with it. Indeed, proponents of the
deletion believed the preapproval provision was more properly a procedural matter within
"the province of the criminal and civil procedural rules, not the ethical rules." A
Legislative History: The Development of the ABA Model Rules of Professional Conduct
512.

And, finally, the new rule's requirement that prosecutors and district judges
employ the KRPC 3.8(e) factors as an overlay on the attorney-client privilege analysis
when defense counsel is to be subpoenaed to testify about current or former client
confidences in a criminal proceeding is demonstrably workable. The KRPC 3.8(e) factors
have been a part of the calculus on issuance and enforcement of such subpoenas in
federal courts since 1985, when the Department of Justice adopted internal guidelines in
response to growing concerns among the bar over federal prosecutors' use of them. See
United States Attorneys' Manual, § 9-13.410 (Sept. 1997) (internal supervisory approval
mandatory to issue subpoena to attorney for client information, with approval conditioned
on Rule 3.8[e] factors); Stern v. United States Dist. Court for Dist. of Mass., 214 F.3d 4,
8-9 (1st Cir. 2000) (tracing history of Model Rule 3.8 subpoena provision, citing United
States v. Perry, 857 F.2d 1346, 1347-48 [9th Cir. 1988], which cites § 9-2.161[a] of 1985
version of United States Attorneys' Manual).

Judicial preapproval for issuance of a subpoena to an attorney for evidence
concerning a present or former client also has been a part of the Virginia rules of criminal
procedure since 1987. See Va. Code Ann. Sup. Ct. R. Criminal Practice and Procedure,
Rule 3A:12(a) 1987 Supp. In 2000, the Virginia Supreme Court amended its ethical rules,
specifically deleting from its version of Rule 3.8 the requirement that a prosecutor obtain
28

judicial approval prior to issuing such a subpoena, but the judicial approval requirement
in the criminal procedure code remained. See Va. Code Ann. Sup. Ct. R. 3.8, Committee
Commentary (provision requiring judicial approval to subpoena attorney deleted because
of "prevailing case law"; local federal district court does not require prior approval).

Evaluation of This Case Under the KRPC 3.8(e) Rubric

Now that we have established the legal rules and procedures governing the
situation before us, we turn to our evaluation of the district judge's assessment of the
evidence before him and his legal rulings based on that assessment. The facts of the
information already disclosed by McKinnon are undisputed, as are the facts of the
detective's investigation, the wording of the question the prosecution asked, and her
refusal to answer.

First Factor Under KRPC 3.8(e)

In her brief, McKinnon challenges the district judge's determination on the first
KRPC 3.8(e) factor—that the attorney-client privilege did not apply because of the
crime-fraud exception. In her view, there was nothing other than the former client's
communication itself to demonstrate the client's intention to obtain legal advice to enable
or assist in the planned perjury. This, she argues, is inadequate to qualify under K.S.A.
60-426(b)(1), which requires "sufficient evidence, aside from the communication . . . 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." (Emphases added.) If, as a threshold matter, the
attorney-client privilege applies, the three KRPC 3.8(e) factors cannot be met.

We have already ruled that the district judge appropriately considered the three
factors under KRPC 3.8(e), the controlling law for his evaluation of the State's motion for
issuance of the subpoena, and McKinnon's later motion to quash. However, as discussed
29

above, application of even a proper legal standard in arriving at what is acknowledged to
be a discretionary decision can still be reversible error if an appellant demonstrates that
the district judge's application or decision necessarily depended upon factual findings
unsupported by substantial competent evidence. See Cooter & Gel v. Hartmarx Corp.,
496 U.S. 384, 405, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990).

The judge's determination on the first KRPC 3.8(e) factor necessarily depended on
his factual finding that evidence beyond the former client's communication itself existed
and that it supported an inference that the former client sought legal advice to further a
crime or planned crime. This was error. On the undisputed record as developed so far and
before us, there is no such evidence. McKinnon's summary of the former client's
expression of an intention to commit perjury in Gonzalez' case is the only evidence, and
merely reed-thin circumstantial evidence, that the former client sought legal services
from the public defender's office "in order to enable or aid the commission or planning of
a crime or a tort." K.S.A. 60-426(b)(1). No other evidence of a desire to advance such
facilitation exists. K.S.A. 60-426(b)(1) requires additional evidence before the crime-
fraud exception to attorney-client privilege will arise, given the threat of serious damage
to the essential confidential relationship the privilege ordinarily protects. The attorney-
client privilege protecting the communications of the former client to McKinnon or her
subordinate was and is intact in this case, absent waiver or a contractual agreement not to
claim the privilege. See K.S.A. 60-437(a), (b) (privilege may be waived by contract,
previous disclosure).

As noted, the State nevertheless argues that McKinnon cannot effectively invoke
the privilege because the prosecution merely seeks the client's name or identity, which is
not confidential. Although this rule of law may generally be correct, see In re Grand Jury
Subpoenas, 906 F.2d 1485, 1488 (10th Cir. 1990) (client's identity is not normally
protected by the attorney-client privilege); Bank v. McDowell, 7 Kan. App. 568, Syl. ¶ 2,
52 Pac. 56 (1898) (client identity not protected by attorney-client privilege), it is not
30

correct in the specific circumstances before us here. McKinnon admits that she had no
authorization from the former client to include the substance of the former client's
statement in the motion to withdraw and that she did so in violation of the attorney ethics
rules governing client confidentiality. See KRPC 1.6(a) (2009 Kan. Ct. R. Annot. 468)
(attorney shall not reveal client confidences); State v. Maxwell, 10 Kan. App. 2d 62, 64,
691 P.2d 1316 (1984), rev. denied 236 Kan. 876 (1985) (attorney's unauthorized
disclosure of client confidence not equivalent to client waiver).

In this unusual situation, when the content of the confidential communication has
already been revealed without the former client's permission, providing the name or
identity of the former client would effectively disclose confidential client information;
thus, in this case, the name or identity of the former client must be kept confidential to
achieve the purpose of the privilege and the attorney ethics rules that provide its context.
See United States v. BDO Seidman, 337 F.3d 802, 811 (7th Cir. 2003) (limited exception
to the general rule that client identity is not privileged applies where "so much of an
actual confidential communication has been disclosed already that merely identifying the
client will effectively disclose that communication"); Vingelli v. United States, Drug
Enforcement Agency, 992 F.2d 449, 453 (2d Cir. 1993) ("substantial disclosure"
exception to general rule that client identity not privileged communication extends
privilege to identity "where the substance of a confidential communication has already
been revealed, but not its source, [such that] identifying the client constitutes a prejudicial
disclosure of a confidential communication").

Because the continuing existence of the attorney-client privilege makes it
impossible for the State to meet its burden to establish all of the three KRPC 3.8(e)
factors, the contempt judgment and sanctions order must be vacated and this case
remanded for further proceedings. Further discussion of the KRPC 3.8(e) factors is
technically unnecessary to the inevitable outcome of this appeal. We nevertheless
continue our analysis because this opinion enunciates a new rule that may need to be
31

applied on remand for whatever usefulness it may have as the district judge evaluates the
evidence already in the record.

Second Factor Under KRPC 3.8(e)

McKinnon's brief does not argue this factor—whether the evidence sought is
essential to the successful completion of an ongoing investigation or prosecution. Her
counsel also made no issue of it at oral argument before us. We thus assume there to be
no argument between the parties on this point, as the evidence has been developed so far.

Third Factor Under KRPC 3.8(e)

McKinnon's brief also does not argue the third factor under KRPC 3.8(e)—
whether the prosecution has another feasible alternative to obtain the information it seeks
from her. At oral argument, however, McKinnon's counsel suggested that the State failed
to establish this factor, because its investigator could have determined the former client's
identity by checking the court files of the seven newly endorsed witnesses to determine
the one from whose case the Public Defender's Office withdrew during the first half of
2007. Counsel for the State acknowledged at oral argument that such a review of the
witnesses' court files was possible and that he did not know whether it had occurred. The
detective's testimony, the only evidence in the record on the extent and results of the
State's investigation after McKinnon's motion to withdraw, makes no mention of such an
effort being undertaken.

As with the first factor under KRPC 3.8(e), the issue before us is factual rather
than legal. Is there substantial competent evidence in the record as it exists to support the
district judge's determination on this factor? The answer is no.

32

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.

The judgment of the district court is reversed and vacated, and the case is
remanded to the district court for further proceedings.

DAVIS, C.J., not participating.
LARRY T. SOLOMON, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Solomon was appointed to hear case No.
102,400 vice Chief Justice Davis pursuant to the authority vested in the Supreme
Court by art. 3, § 6(f) of the Kansas Constitution.