The Law School Authority

Washington v. Olwell Case Brief

Summary of Washington v. Olwell, 64 Wash.2d 828 (1964)

Relevant Facts: At a coroner’s inquest investigating a death, Olwell, the atty for the accused, Gray, was subpoenaed to bring with him all of his client’s property in his possession, including all knives.  The atty had conferred with his client after his arrest for stabbing the victim, and as a result he came into possession of a knife belonging to the client.  At the inquest the atty refused to comply with the subpoena and he was found in contempt.

Legal Issue(s): Whether an attorney may refuse to produce material evidence of a crime by asserting atty-client privilege?

Court’s Holding: Atty’s refusal to testify and produce the evidence in his possession was not contemptuous.

Procedure: Olwell refused to comply w/ coroner’s subpoena duces tecum to produce all knives belonging the his client at an inquest.  When he refused, he was held in contempt by Superior Ct and given 10 days to purge the contempt, when he failed, he was sentenced to two days.  Reversed with directions by Supreme Ct. of Washington.

Law or Rule(s): To be protected as a privileged communication, information or objects acquired by an atty must have been communicated or delivered to him by the client, and not merely obtained by the atty while acting in that capacity for the client. See Dupree v. Better Way, 86 So.2d 425 (1956).

Court Rationale: It is reasonable to infer from the record that the atty obtained the evidence as the result of information received from the client, and is therefore confidential communication.  If the knife were obtained from a 3rd person, without atty-client relationship, the communication would not be privileged.  As long as an atty-client relationship exists communications concerning an alleged crime or fraud, made by the client to the atty after the crime or fraud has been completed, are within the atty-client privilege.  The privilege must be weighed, based on statute and common law authority, against the public’s interest in the criminal investigation process.  The subpoena is defective b/c it requires the atty to give testimony concerning information received by him from his client in the course of their conference.  This does not imply that evidence can be permanently withheld by the atty under the claim of atty-client privilege.  The atty is not a depository for criminal evidence, and after a reasonable period, he should, as an officer of the court, on his own motion turn over the evidence to the prosecution.

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