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State v. Boatwright

Court of Appeals of Kansas

July 28, 2017

State of Kansas, Appellee,
v.
Robert L. Boatwright, Appellant.

          SYLLABUS

         1. The principle of confidentiality is given effect in two related bodies of law: the attorney-client privilege in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of attorney-client confidentiality applies in all situations other than those where evidence is sought from the attorney through compulsion of law.

         2. A privilege is a rule of evidence that allows a person to shield confidential communication or information from compelled disclosure during litigation. In Kansas, the attorney-client privilege is statutory and is found in the code of evidence at K.S.A. 2016 Supp. 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.

          3. An attorney's ethical duty of client confidentiality arises under the Kansas Rules of Professional Conduct, specifically KRPC 1.6 (2017 Kan. S.Ct. R. 294), and is part of a system of professional ethical standards designed to provide guidance to lawyers and a structure for regulating conduct through disciplinary agencies. In contrast to the attorney-client privilege, 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. It is expansive because the cloak of confidentiality is intended to facilitate the full development of facts essential to proper representation of the client.

         4. The attorney-client privilege has been distilled to mean that where legal advice is sought from a professional legal advisor in his or her capacity, communications made in the course of that relationship and made in confidence by the client are permanently protected from disclosures by the client, the legal advisor, or any other witness unless the privilege is waived.

         5. Under the crime-fraud exception, the attorney-client privilege does not extend to a communication in which the legal service was sought or obtained in order to enable or aid the commission or planning of a crime or a tort.

         Appeal from Sedgwick District Court; Christopher M. Magana, judge. Reversed and remanded.

          Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Atcheson, P.J., Malone and Powell, JJ.

          Powell, J.

         During a meeting with his attorney to discuss the State's plea offer in another criminal case, Robert Boatwright threatened to kill his ex-fiancée. Alarmed by this threat, Boatwright's attorney disclosed this communication to the Sedgwick County Sheriff's Office, which resulted in Boatwright being charged with one count of criminal threat, a severity level 9 person felony. At trial, Boatwright's attorney and the detective to whom she reported the communication testified about the substance of Boatwright's threats. Over Boatwright's repeated objections, the district court admitted the statements, and the jury convicted him.

         Boatwright now appeals his conviction on the ground that his statement to his attorney was protected by the attorney-client privilege. We agree and reverse.

         Factual and Procedural Background

         In 2014, Boatwright pled guilty to criminal threat against his then-fiancée, D.T. Boatwright was sentenced to prison and ordered not to contact D.T. While incarcerated, Boatwright attempted to call D.T. twice, but she did not answer. Prior to his release, Boatwright sent a package of his belongings to D.T.'s residence where he also had resided before his imprisonment. After these actions, the State charged Boatwright with violation of a protective order and with stalking in two new cases.

         The district court appointed Dianne Rosell to represent Boatwright in the two new cases. On December 3, 2014, Rosell met with Boatwright for the first time to discuss a plea offer and to gain more information from Boatwright regarding the details of his cases. The meeting lasted about 15 minutes. Rosell and Boatwright met in a private room in the professional visitation area of the jail. As was her practice for her own safety, Rosell left the door cracked during their meeting. Boatwright indicated that he was not interested in accepting the plea offer; rather, he wanted to get his property back from D.T. and to see her in person. Rosell told Boatwright that he was not allowed to see D.T. because of the no contact order and that there were other ways to get his property back without D.T. being present. Boatwright became upset with Rosell after her response and said he wanted a new attorney. Rosell responded, "Fine, file a motion." The conversation ended when Boatwright left the professional visitation area.

         On January 8, 2015, after not receiving a motion for new counsel, Rosell again met with Boatwright in the professional visitation area to once again discuss the plea offer in the cases. This meeting lasted approximately 10 minutes. Boatwright again rejected the plea offer and emphasized that he wanted to get his property from D.T. and that he wanted D.T. to be present when he did so. Rosell again informed Boatwright he was not allowed to see the victim. Boatwright became very upset during this conversation and commented, "[D.T.'s] robbing me of my stuff, the State's robbing me of my stuff, so I'm going to get my stuff, and I'm going to kill her." Boatwright again indicated he was unhappy with Rosell's representation. The conversation ended shortly after Boatwright's above statements.

         After this meeting, Rosell spoke with her supervisor about her ethical obligations after Boatwright's statement to her, and her supervisor directed her to inquire of the Disciplinary Administrator. Rosell proposed a hypothetical scenario based on the facts of the incident to the Disciplinary Administrator, who cleared her to make a report to law enforcement under the Kansas Rules of Professional Conduct (KRPC). Rosell reported Boatwright's statements to the ...


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