401 P.3d 657
Kan. Ct. App.2017Background
- Boatwright, previously convicted of criminal threat and subject to a no-contact order, met with his court-appointed attorney Dianne Rosell in jail to discuss plea offers in two new cases.
- During a private, short meeting about plea offers and retrieving property, Boatwright told Rosell he would "get [his] stuff, and I'm going to kill her" referring to his ex-fiancée D.T.
- Rosell consulted supervisors and the Disciplinary Administrator, who advised she could report the threat; she reported it to the Sedgwick County Sheriff and withdrew from representation.
- The State charged Boatwright with a new count of criminal threat based on Rosell’s report; at trial the court admitted Rosell’s testimony about Boatwright’s statement and a detective’s testimony recounting Rosell’s report.
- Boatwright was convicted and appealed, arguing the statement to his attorney was protected by the attorney-client privilege under K.S.A. 2016 Supp. 60-426.
- The Court of Appeals held the district court erred: KRPC 1.6 (ethical rule) does not govern admissibility at trial and the crime-fraud exception did not apply; therefore the attorney-client privilege barred admission of Boatwright’s statement and the conviction was reversed.
Issues
| Issue | Boatwright's Argument | State's Argument | Held |
|---|---|---|---|
| Whether attorney-client privilege barred Rosell’s testimony about Boatwright’s threat | Statement was made to counsel during representation in confidence and is privileged under K.S.A. 60-426 | Privilege does not apply because (a) KRPC 1.6 allows disclosure to prevent a crime, or (b) crime-fraud exception/statement not seeking legal advice | Privilege applied; KRPC 1.6 is an ethics rule and does not govern admissibility; statement was protected under K.S.A. 60-426 and no exception applied |
| Whether KRPC 1.6(b)(1) justified admission of the attorney’s testimony | KRPC 1.6 is distinct from the evidentiary privilege and cannot substitute for K.S.A. 60-426 | Rosell permissibly disclosed under KRPC 1.6 to prevent a crime, so testimony was proper | KRPC 1.6 is an ethical duty of confidentiality, not a rule of evidence; it cannot alone render privileged communications admissible |
| Whether the crime-fraud exception (K.S.A. 60-426(b)(1)) applied | Not applicable—Boatwright sought legal advice about plea and property retrieval, not to further a crime | Applied because client sought or used counsel to enable/aid stalking/other wrongdoing; statements showed intent to further crime | Crime-fraud exception did not apply; record lacked evidence client sought legal advice to further a crime or that communications intended to advance criminal conduct |
| Whether any error was harmless because detective testified about Rosell’s report | Prior objections preserved; detective’s testimony was derivative and admissible only if Rosell’s testimony were admissible | Error harmless because detective testified and counsel did not contemporaneously object to that testimony | Error was not harmless; detective’s testimony was derivative of privileged communication, so State’s case failed without it |
Key Cases Cited
- State v. Gonzalez, 290 Kan. 747 (discusses distinction between attorney-client privilege and ethical duty of confidentiality)
- State v. Munyon, 240 Kan. 53 (elements defining attorney-client privilege)
- Purcell v. District Attorney for Suffolk Dist., 424 Mass. 109 (crime-fraud exception requires communications intended to further future criminal conduct)
- United States v. Zolin, 491 U.S. 554 (crime-fraud exception principle and limits on privilege)
- In re Grand Jury Proceedings, 183 F.3d 71 (crime-fraud exception applies only when communications directly advance criminal endeavor)
- In re Bryan, 275 Kan. 202 (privileges operate narrowly and may deprive factfinder of relevant information)