The State Bar Association of North Dakota Summer 2015 Gavel Magazine | Page 34
knows Defendant’s culpability, i.e.,
whether Defendant intended to skip the
scheduled hearing, recklessly forgot about
it, or intended to attend the hearing but
while enroute was involved in a terrible
accident and rushed to a hospital. While
one could envision a scenario in which
Rule 3.3(b) might authorize a lawyer’s
disclosure, Public Defender’s case does not
qualify.
On the other hand, Public Defender
would be authorized by his duty to
comply with an order to provide the
information. While Court’s mere inquiry
would be insufficient to trigger Public
Defender’s duty, Court’s directive to
respond to the inquiry would be sufficient.
At the outset, it must be recognized that a
court has authority to question
court officers about nonprivileged
information integral to court operations.
The district court has “all the powers,
according to the usages of courts of
law and equity, necessary to the full
and complete jurisdiction of the causes
and parties and the full and complete
administration of justice[.]” N.D.C.C.
§ 27-05-06(3). These powers include
setting release conditions, forfeiting
bail, issuing bench warrants for failure
to appear, and continuing hearings.
See e.g. N.D.R.Crim.P. 46 (“Release
from Custody”); N.D.R.Ct. 6.6
(“Bench Warrant”); N.D.R.Ct. 6.1
(“Continuances”). Moreover, the district
court also has the duty to act diligently
and thus is required “to take reasonable
measures to ensure that court officials,
litigants, and their lawyers cooperate with
the judge to that end.” See N.D. Code
Jud. Conduct Rule 2.5(A) cmt. 3. The
district court’s workload highlights the
importance of the court’s powers and duty
of diligence. In 2014, there were 31,372
criminal cases filed in the district courts of
the state. See 2014 North Dakota Court
System Annual Report at 12. Caseloads
per judicial district ranged from 2,866 to
6,272. See id. Simply put, assessing all
nonprivileged information to determine
whether a bench warrant should be issued,
bond forfeited, or proceedings continued
is integral to the efficiency of the district
court.
It must also be recognized that
information regarding what contacts
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THE GAVEL
Public Defender and Defendant have
occurred is not privileged. Under N.D.R.Ev.
502(b), the attorneyclient privilege applies
to “confidential communications[.]” The fact
that a communication occurred - without
any reference to the actual communication,
i.e., the content of the communication - is
not privileged. See generally Knoff v.
American Crystal Sugar Co., 380 N.W.2d
313, 320-21 (N.D. 1986) (recognizing as
nonprivileged information that was “not
the content of [the lawyer’s representative’s]
communications with [the lawyer] or the
client”); see also 81 Am. Jur. 2d Witnesses
§ 370 (2015) (noting “the attorney-client
privilege does not apply to an attorney’s
calendars, appointment books, or other logs
of dates and/or events, absent a showing
that the responsive documents would
likely require disclosure of the attorney’s
confidential communications with other
clients”).
In sum, Public Defender may provide
information as to what contacts have
occurred between Public Defender and
Defendant, but only in response to an order
from the court rather than a mere inquiry
form the court. Public Defender, though,
may only disclose nonprivileged facts of
contacts and may not discuss the substance
of any confidential communications with
Defendant.
ll. Public Defender is not necessarily barred
from representing Defendant in either
the original action or the new bail jumping
action.
Whether Public Defender is barred from
representing Defendant in original action,
new bail jumping action, or both is governed
largely by Rules 1.7 and 3.7. Under Rule
1.7(a), “[a] lawyer shall not represent a client
if the lawyer’s ability to consider, recommend,
or carry out a course of action on behalf of
the client will be adversely affected by the
lawyer’s responsibilities to another client
or to a third person, or by the lawyer’s own
interests.” Under Rule 3.7(a), “[a) lawyer
shall not act as an advocate at a trial in which
the lawyer is likely to be a necessary witness
unless: (1) The testimony relates to an
uncontested issue[.]”
No evidence establishes that Public
Defender would necessarily be barred
under Rule 1.7(a) from continuing the
representation in the original action. Nothing
shows that Public Defender’s ability to
represent Defendant would be adversely
affected by Public Defender’s own interests
or responsibilities to a third person. Public
Defender’s disclosure of nonprivileged
information in response to Court’s directive
would not necessarily change that.
Nor does the disclosure necessarily establish
that Public Defender would be barred from
representing Defendant in the new bail
jumping action under Rule 3.7(a). For bail
jumping, State’s Attorney must simply prove
that Defendant “afte