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State ex rel. Sowers v. Olwell - 64 Wash. 2d 828, 394 P.2d 681 (1964)

Rule:

Communications concerning an alleged crime or fraud, which are made by a client to the attorney after the crime or the fraudulent transaction has been completed, are within the attorney-client privilege, as long as the relationship of attorney and client has been established.

Facts:

Henry LeRoy Gray and John W. Warren engaged in a fight on Sept. 7, 1962; Warren died as result of knife wounds sustained in the fight. Gray was later arrested and admitted to the stabbing; at that time he was unaware of what happened to the knife. Several days later, defendant David H. Olwell, an attorney, was retained as Gray's attorney, and he later came into possession of the knife. Later, the coroner, plaintiff Leo M. Sowers, initiated an inquest into Warren's death. Several days before the inquest, Sowers issued a subpoena duces tecum to Olwell demanding that he bring to the inquest any knives in his possession connected to Gray. Olwell appeared at the coroner's inquest but refused to comply with the subpoena duces tecum, asserting the attorney-client privilege and the privilege against self-incrimination on behalf of Gray, his client. Thereafter, the State of Washington, on the relation of Sowers, cited Olwell to appear in Washington superior court, which ultimately entered an order adjudging Olwell to be in contempt and directing that he serve two days in the county jail. Olwell appealed.

Issue:

Could Olwell refuse to produce, at a coroner's inquest, material evidence of a crime by asserting the attorney-client privilege?

Answer:

Yes.

Conclusion:

The state supreme court reversed the superior court's judgment with directions to dismiss the proceeding. The court held that the evidence in Olwell's possession—the knife used by client in the stabbing—was obtained through a confidential communication with client, Gray. Accordingly, the court held that Olwell's refusal to testify at the inquest due to his attorney-client privilege was not contemptuous. The court further held, however, that there was no reason to extend the privilege against self-incrimination to Olwell because Gray was already protected in his relations with his attorney by the attorney-client privilege.

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