* State Of Washington, Respondent V. Earl Ronald Rogers, Petitioner

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FILED
4/2/2018
Court of Appeals
Division I
State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 75722-9-1
)
Respondent, )
)
V. )
)
EARL RONALD ROGERS, JR. )
)
Appellant. )
)
)
STATE OF WASHINGTON, ) No. 75828-4-1
)
Respondent, )
)
v. )
) ORDER GRANTING MOTION
EARL RONALD ROGERS, JR., ) TO PUBLISH OPINION
)
Appellant. )
)
Appellant filed a motion to publish the court's February 20, 2018 opinion.
Respondent has filed a response stating it has no opposition to the motion.
Following consideration of the motion, the panel has determined the motion should
be granted. Now, therefore, it is hereby
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Nos. 75722-9-1 & 75828-4-1/2
ORDERED that the appellant's motion to publish is granted.
FOR THE PANEL:
2
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, )
)
No. 75722-9-1
Respondent,
v.
)
)
)
)
EARL RONALD ROGERS, JR. )
)
Appellant. )
)
)
STATE OF WASHINGTON, )
)
No. 75828-4-1
Respondent,
v.
)
)
)
) PUBLISHED OPINION
EARL RONALD ROGERS, JR., )
) FILED: February 20, 2018
Appellant. )
)
VERELLEN, C.J. — These appeals concern the State's attempt to compel
attorney David Trieweiler to produce a letter written by his former client, Earl
Rogers, to the victim of his alleged felony telephone harassment.
In No. 75828-4-1, Trieweiler appeals the trial court's order finding him in
contempt for failing to produce the letter. He argues the court's subpoena duces
tecum is invalid because it exceeds the scope of criminal discovery and seeks
privileged or protected information. In No. 75722-9-1, Rogers challenges the
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Nos. 75722-9-1 & 75828-4-1/2
court's denial of the motion to quash the subpoena on the same grounds.
Because the two cases involve the same legal issues and facts, we issue a single
opinion.
The subpoena was not challenged before the trial court on the basis that it
exceeded the scope of criminal discovery. We decline to reach this unpreserved
claim of error.
Trieweiler was not the recipient of the letter. He obtained the letter from a
third party. Even assuming the client mentioned the letter to his attorney, the
attorney-client privilege does not extend to objects obtained from third parties.
The letter is not protected by attorney-client privilege.
RPC 1.6 does not preclude Trieweiler from producing the letter to comply
with a court order. Because the State has a legitimate interest in the letter and
disclosure has little impact on the attorney-client relationship, the trial court did not
abuse its discretion when it ordered Trieweiler to disclose the letter.
Therefore, we affirm.
FACTS
Rogers was charged with felony telephone harassment for threatening to
kill Manesbia Pierce, his girlfriend's mother. He was represented by Trieweiler.
While the case was pending, the State became aware of a letter Rogers
had written and mailed to Pierce's daughter, Timothea Marshall. Marshall gave
the original letter to Pierce. Pierce gave a copy of the letter to Trieweiler. Pierce
told the prosecutor Rogers apologized in the letter and offered to pay her to drop
2
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Nos. 75722-9-1 & 75828-4-1/3
the charges. It is undisputed that neither Marshall nor Pierce possess the original
or a full copy of the handwritten letter.
In March 2016, the court removed Trieweiler as Rogers' attorney. In June
2016, the trial court issued a subpoena duces tecum for Trieweiler to produce
documents, including the letter. On Trieweiler's motion to quash, the court
narrowed the scope of the subpoena but still required Trieweiler to produce the
letter. When he failed to produce it, the court found him in contempt.
Trieweiler appeals the contempt order. Rogers appeals the denial of the
motion to quash.
ANALYSIS
Rogers argues the trial court abused its discretion when it denied the
motion to quash the subpoena. Trieweiler contends the trial court abused its
discretion when it found him in contempt for failing to produce the subpoenaed
letter.
We review contempt findings and discovery orders for abuse of discretion.1
I. Scope of Discovery
For the first time on appeal, Trieweiler and Rogers contend the subpoena
exceeded the scope of criminal discovery because CrR 4.7 does not allow the
State to subpoena materials from any third party. We generally do not consider
1 In re Interest of M.B., 101 Wn. App. 425, 454, 3 P.3d 780(2000); State v.
Yates, 111 Wn.2d 793, 797, 765 P.2d 291 (1988); State v. Boehme, 71 Wn.2d
621, 633, 430 P.2d 527(1967)(quoting State v. Mesaros,62 Wn.2d 579, 587, 384
P.2d 372(1963)).
3
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Nos. 75722-9-1 & 75828-4-1/4
issues raised for the first time on appea1.2 This rule encourages "the efficient use
of judicial resources'. .. by ensuring that the trial court has the opportunity to
correct any errors, thereby avoiding unnecessary appeals."3
Trieweiler concedes the error was not preserved and, in a conclusory
footnote, requests review under RAP 2.5(a). Given the lack of objection below
and the limited argument before us, we decline to review this unpreserved claim.4
II. Attorney-Client Privilege
Trieweiler and Rogers contend the letter is protected by attorney-client
privilege.
The attorney-client privilege is codified in RCW 5.60.060(2)(a), which
provides "[a]n attorney or counselor shall not, without the consent of his or her
client, be examined as to any communication made by the client to him or her, or
his or her advice given thereon in the course of professional employment."
Information protected by the attorney-client privilege includes objects acquired by
an attorney through a direct and confidential communication with the client, along
with literal communications.5 But the statutory privilege is not absolute and an
2 RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251
(1995)
3 State v. Robinson, 171 Wn.2d 292, 304-05, 253 P.3d 84(2011)(quoting
State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988)).
4 We note there is authority supporting the ability of the State or defendants
to subpoena items from third parties. See, e.g., State v. White, 126 Wn. App. 131,
134-35, 107 P.3d 753(2005)(addressing the notice required to be given by the
State when subpoenaing evidence from a third party); CrR 4.8(b)(2)(addressing
notice required of "a party" who seeks to subpoena a third party.)
5 State ex rel. Sowers v. Olwell, 64 Wn.2d 828, 831, 394 P.2d 681 (1964).
4
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Nos. 75722-9-1 & 75828-4-1/5
object obtained from a third party with whom there was no attorney-client
relationship is not privileged.6
In State ex rel. Sowers v. Olwell, an attorney refused to comply with a
subpoena duces tecum requiring him to produce any knives relating to his client.7
Our Supreme Court assumed the attorney must have obtained the knife as a direct
result of information given to the attorney by his client.8 For this reason, the court
concluded the attorney-client privilege was implicated and the subpoena was
defective on its face.9
But the Supreme Court expressly recognized TN the knife were obtained
from a third person with whom there was no attorney-client relationship, the
communication would not be privileged, and the third person could be questioned
concerning the transaction."1° Additionally, the court acknowledged that even if a
piece of evidence was protected by the attorney-client privilege, "the attorney, after
a reasonable period, should, as an officer of the court, on his own motion turn the
same over to the prosecution."11
6 Id. at 832.
7 64 Wn.2d 828, 829, 394 P.2d 681 (1964)).
8 Id. at 831-32("Although there is no evidence relating thereto, we think it
reasonable to infer from the record that appellant did, in fact, obtain the evidence
as the result of information received from his client during their conference.
Therefore, for the purposes of this opinion and the questions to be answered, we
assume that the evidence in appellant's possession was obtained through a
confidential communication from his client.").
9 Id. at 833.
1° Id. at 832.
11 Id. at 834.
5
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Nos. 75722-9-1 & 75828-4-1/6
Here, Trieweiler did not obtain the letter as a result of direct or confidential
communication with Rogers. Rogers originally sent the letter to Marshall.
Marshall gave the letter to Pierce, who then gave a copy to Trieweiler. Even if
Rogers had some discussion with Trieweiler about the existence of the letter,
Trieweiler still obtained the letter from third parties. And unlike Olwell, the
subpoena in this case is limited to production of the letter. The State has not
sought and assured this court it will not seek testimony from Trieweiler regarding
the letter. It would be an odd standard if a defendant could shield a material item
from discovery merely by communicating its existence to his or her attorney.12
The letter is not subject to the attorney-client privilege.
III. RPC 1.6
Trieweiler and Rogers also argue RPC 1.6 precludes Trieweiler from
disclosing the letter.
RPC 1.6(a) provides "[a] lawyer shall not reveal information relating to the
representation of a client unless. . . the disclosure is permitted by paragraph (b)."
The information protected by the rule includes confidences and secrets.
"Confidence' refers to information protected by the attorney client privilege under
applicable law, and 'secret' refers to other information gained in the professional
12 In Matter of Det. of Williams, 147 Wn.2d 476,494, 55 P.3d 597(2002)(a
client "cannot create a privilege simply by giving [crime related] records to his
attorney.").
6
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Nos. 75722-9-1 & 75828-4-1/7
relationship that the client has requested be held inviolate or the disclosure of
which would be embarrassing or would be likely to be detrimental to the client."13
"Confidences," for purposes of RPC 1.6, is coextensive with the statutory
attorney-client privilege.14 But because the rule also extends to "secrets," the rule
"is considerably broader than the statutory attorney-client privilege."15
As previously discussed, the letter is not within the attorney-client privilege
and therefore is not a confidence. And even if the letter is a secret, the duty of
nondisclosure is not absolute. RPC 1.6(a) expressly provides that its limits on
disclosure do not apply if "the disclosure is permitted by paragraph (b)." Pursuant
to RPC 1.6(b)(6), a lawyer "may reveal information relating to the representation of
a client to comply with a court order." Since the court ordered disclosure of the
letter, Trieweiler will not violate the RPCs by divulging the information.16
That leaves the question of whether the trial court abused its discretion in
ordering Trieweiler to disclose the letter.17 "In ordering disclosure of 'secrets', the
trial court must balance the necessity of the disclosure against the effect such
13 RPC 1.6 cmt. 21.
14 Seventh Elect Church in Israel v. Rogers, 102 Wn.2d 527, 534,688 P.2d
506 (1984).
15 Id.; Dietz v. Doe, 131 Wn.2d 835, 842 n.3, 935 P.2d 611 (1997).
16 See Seventh Elect Church, 102 Wn.2d at 534 ("Since the two trial courts
involved in this appeal have ordered disclosure of the information sought by the
Church, Betts, Patterson will not violate the disciplinary rule by divulging the
information").
17 See id.("We must next determine whether either trial court abused its
discretion in ordering Betts, Patterson to disclose its client's 'secret.'").
7
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Nos. 75722-9-1 & 75828-4-1/8
disclosure might have on the attorney-client relationship."18 The purpose of the
duty of confidentiality is to preclude disclosure of secrets when disclosure would
have a "significant adverse effect on open and free-flowing communications which
are so important to the attorney-client relationship."19
Here, the State has a legitimate interest in the letter because it is not
disputed that the letter contains evidence of the crime charged (the apology for
admitted acts), along with evidence of other criminal activity (offer to bribe the
victim). Any suggestion that the severity of the crime impacts the legitimacy of the
State's interest is not compelling. The State has as legitimate an interest in
prosecuting harassment as it does for murder.
The impact of disclosure on the attorney-client relationship depends on all
the circumstances. Here, the impact is minimal because the order is limited to the
letter itself, and the State assures us that it will not seek any testimony from
Trieweiler, including how he gained possession of the letter.° Any suggestion that
production of the letter alone chills open and free-flowing communication with an
attorney is not persuasive. Although compelling an attorney to disclose evidence
of a client's criminal conduct may generally implicate protected confidences or
18 Id. at 534-35.
19 Id. at 536.
20 See Olwell, 64 Wn.2d at 834("By thus allowing the prosecution to
recover such evidence, the public interest is served, and by refusing the
prosecution an opportunity to disclose the source of the evidence, the client's
privilege is preserved and a balance is reached between these conflicting
interests.").
8
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Nos. 75722-9-1 & 75828-4-1/9
secrets, a client does not establish an adverse impact on the attorney-client
relationship solely because the item obtained may have detrimental consequences
in current or future criminal proceedings. Neither Rogers nor Trieweiler establish
any meaningful harm to their attorney-client relationship. The trial court did not
abuse its discretion in ordering Trieweiler to disclose the letter.
Therefore, we affirm the trial court's order compelling the production of the
letter and denying the motion to quash the subpoena. Because Trieweiler
asserted a claim of privilege in good faith, we vacate the contempt finding
contingent on Trieweiler providing the letter within 30 days of issuance of the
mandate in No. 75828-4-1.21
WE CONCUR:
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21 See Seventh Elect Church, 102 Wn.2d at 536-37("When an attorney =='. 571,Tzt
makes a claim of privilege in good faith, the proper course is for the trial court to: 17,17	1
stay all sanctions for contempt pending appellate review of the issue. AccordinglyI
we vacate the finding of contempt against Betts, Patterson contingent on their 18
[compliance with	with the court order] within 30 days of issuance of the mandate in tW M
case.").
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C.11 4=-
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9
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