Sweeney v. Dayton
416 P.3d 187 (2018)
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Rule of Law:
Under Montana statute § 26-1-803(1), an attorney cannot be compelled to be examined about whether they notified a client of a mandatory court hearing, as advising a client of a hearing date is inseparably intertwined with legal advice and compelling such testimony would violate the attorney's duty of undivided loyalty to the client.
Facts:
- Shannon Sweeney was appointed as the attorney for Dakota James McClanahan, who was charged with possession of dangerous drugs.
- McClanahan pleaded not guilty and was released from custody under the condition that he attend all court proceedings.
- A final pretrial conference was scheduled for November 16, 2016.
- McClanahan failed to appear at the final pretrial conference.
- As a result of his failure to appear, the State charged McClanahan with the separate offense of bail jumping.
Procedural Posture:
- The State charged Dakota James McClanahan with bail jumping in the Third Judicial District Court.
- McClanahan, through his new counsel Ed Sheehy, filed a motion to dismiss the bail jumping charge, which the District Court denied.
- The State filed a motion in limine seeking a ruling that McClanahan's original attorney, Shannon Sweeney, could be compelled to testify.
- The District Court granted the State's motion, ruling Sweeney would have to testify as to whether she informed McClanahan of the court date.
- The State issued a subpoena compelling Sweeney to appear and testify at McClanahan's trial.
- Sweeney filed a motion to quash the subpoena, which the District Court denied.
- Sweeney filed a Petition for a Writ of Supervisory Control with the Supreme Court of Montana, asking it to review and reverse the District Court's order.
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Issue:
Does Montana's attorney-client privilege statute, § 26-1-803(1), prevent a court from compelling an attorney to testify against her client about whether she notified the client of a mandatory court hearing, where the client's failure to appear resulted in a new criminal charge?
Opinions:
Majority - Chief Justice Mike McGrath
Yes. Montana's attorney-client privilege statute prevents a court from compelling an attorney's testimony under these circumstances. The plain language of § 26-1-803(1), MCA, states an attorney cannot be "examined" regarding advice given to a client. Compelling an attorney to take the stand to testify against her client is a prohibited "examination." Furthermore, advising a client of a hearing date, where failure to appear can result in new criminal liability, is "inseparably intertwined with the concept of legal advice." Compelling Sweeney's testimony would also violate her legal duty of undivided loyalty to her client, which is fundamental to the adversarial system.
Dissenting - Justice Laurie McKinnon
No. The attorney-client privilege statute does not prevent the court from compelling the attorney's testimony. The majority improperly isolates the word "examined" from the rest of the statute, which only prohibits examination "as to ... advice given." Notifying a client of a publicly available court date is not confidential legal advice; the attorney is merely acting as a "conduit" for the court. The attorney-client privilege should be construed narrowly because it obstructs the truth-finding process, and the majority's decision improperly broadens its scope, contrary to overwhelming precedent from other jurisdictions.
Concurring - Justice Jim Rice
Yes. While the majority's reasoning is overly broad, the outcome is correct. Asking an attorney whether she communicated a court date to her client is not a request for legal advice and should be permissible. However, the State also intended to ask whether the attorney told her client that he needed to attend the conference. An attorney's communication about whether a client should attend a proceeding, potentially risking violation of a release condition, falls squarely within the realm of protected legal advice. Because the State's proposed inquiry included this prohibited question, the subpoena was properly quashed.
Analysis:
This decision establishes a broader protection for attorney-client communications in Montana than what exists in many federal and other state courts. By grounding its holding in the specific language of a state statute and the duty of loyalty, the court created a strong shield against using an attorney as a key witness to prove the notice element in a client's subsequent bail-jumping case. The ruling prioritizes the sanctity and trust of the attorney-client relationship over the state's prosecutorial needs in such cases. This precedent will likely make it significantly more difficult for Montana prosecutors to secure bail-jumping convictions when the only direct evidence of notice is the defendant's prior counsel.
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