DR 4-101(A) “does not confine the client’s ‘secrets’ to communications; indeed, they may reach the attorney from someone other than the client”
How later courts described this case
- DR 4-101(A) “does not confine the client’s ‘secrets’ to communications; indeed, they may reach the attorney from someone other than the client”
- “If the contemnor had no practical opportunity to challenge the court’s order before complying or refusing to comply, and the order was erroneous, the judgment of contempt should be set aside.”
Written by the judges who cited it.
The opinion
GILLETTE, J.,
specially concurring.
I concur in the result the majority reaches in this *524 case. I write separately to point out another avenue that I believe is open to this lawyer, and to express my reservations as to a part of the majority’s analysis.
As the majority explains, this case would be moot (the attorney having discharged her contempt by testifying) were it not for the fact that the judgment for contempt was never vacated:
“If the trial court had vacated the judgment of contempt after Waller complied with the court’s order, the appeal would be moot. But the trial court did not vacate the judgment, because it [i.e., the judgment of contempt] was before this court on review. Even without imposition or enforcement of a sanction, an outstanding judgment that a lawyer has committed contempt of court can have future legal consequences for the lawyer, for instance in subsequent disciplinary proceedings in some unrelated matter. If the contemnor had no practical opportunity to challenge the court’s order before complying or refusing to comply, and the order was erroneous, the judgment of contempt should be set aside.”
307 Or at 518 (emphasis supplied). That statement may correctly describe the attorney’s problem, but it does not dictate the form of solution this court can provide. The majority says the attorney is no longer guilty of contempt. If vacation of the judgment of conviction for contempt would make the attorney whole (as the majority declares — and I agree — it would do), the most desirable solution would be to remand this case to the trial court to permit that vacation. Such a disposition would avoid this court’s sojourn into the esotérica of ORS 9.460(5), DR 4-101(A) and OEC 503. However, no one has asked us to do this or suggested a way by which it could be done. I therefore agree that we must reach the merits of this case. 1
In any event, and by its own terms, the majority’s decision need not spend so much time on these statutes and rules. The majority, after a discourse on the difference between the attorney-client privilege, on the one hand, and a client’s “secrets,” on the other, states: “This is not the case to resolve possible differences between the evidentiary privilege and ORS 9.460(5).” 307 Or at 521.
*525 The majority concludes that the foregoing issue is not presented because the nature of the attorney’s contempt is colored by the fact she was first called by her client. It was only on cross-examination as to the same matters about which she had testified (and about which, of necessity, her client had waived any privilege he had) that she committed contempt. As I understand it, the majority concludes that the trial judge’s careful handling of this matter protected any arguable problem, whether based on statute or rule, so the judgment of contempt was proper. I agree.
That is all that should be said. The majority’s discussion of the interworkings of the statute, the evidence code and the disciplinary rules is interesting and well crafted. It very well may be correct. But it is also unnecessary to our decision in this case. I therefore do not join in that part of the majority opinion.
I assume that, immediately following the announcement of our decision in this case, the attorney will apply to the trial judge for vacation of her conviction for contempt.