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60-426. Attorney-client privilege. (a) General rule. Subject to K.S.A. 60-437, and amendments thereto, and except as otherwise provided by subsection (b), communications found by the judge to have been between an attorney and such attorney's client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege: (1) If such client is the witness, to refuse to disclose any such communication; (2) to prevent such client's attorney from disclosing it; and (3) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the attorney, (ii) in a manner not reasonably to be anticipated by the client or (iii) as a result of a breach of the attorney-client relationship. The privilege may be claimed by the client in person or by such client's attorney, or if an incapacitated person, by either such person's guardian or conservator, or if deceased, by such person's personal representative.

(b) Exceptions. Such privileges shall not extend to a communication: (1) If the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the legal service was sought or obtained in order to enable or aid the commission or planning of a crime or a tort; (2) relevant to an issue between parties all of whom claim through the client, regardless of whether the respective claims are by testate or intestate succession or by inter vivos transaction; (3) relevant to an issue of breach of duty by the attorney to such attorney's client, or by the client to such client's attorney; (4) relevant to an issue concerning an attested document of which the attorney is an attesting witness; or (5) relevant to a matter of common interest between two or more clients if made by any of them to an attorney whom they have retained in common when offered in an action between any of such clients.

(c) Definitions. As used in this section:

(1) "Client" means a person or corporation or other association that, directly or through an authorized representative, consults an attorney or attorney's representative for the purpose of retaining the attorney or securing legal service or advice from the attorney in a professional capacity; and includes an incapacitated person who, or whose guardian on behalf of the incapacitated person, so consults the attorney or the attorney's representative in behalf of the incapacitated person.

(2) "Communication" includes advice given by the attorney in the course of representing the client and includes disclosures of the client to a representative, associate or employee of the attorney incidental to the professional relationship.

(3) "Attorney" means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation the law of which recognizes a privilege against disclosure of confidential communications between client and attorney.

History: L. 1963, ch. 303, 60-426; L. 1965, ch. 354, § 7; L. 2011, ch. 96, § 2; July 1.

Source or prior law:

G.S. 1868, ch. 80, § 323; L. 1909, ch. 182, § 321; R.S. 1923, 60-2805 (4 th clause).

Law Review and Bar Journal References:

Survey of law of evidence, Spencer A. Gard, 12 K.L.R. 239, 240 (1963).

Prior law cited in 1963-65 survey of family law, John W. Brand, Jr., and Dan Hopson, Jr., 14 K.L.R. 271, 285 (1965).

1963-65 survey of law of evidence, Spencer A. Gard, 14 K.L.R. 263, 265 (1965).

Entire section discussed with respect to its effect upon discovery under civil code, Spencer A. Gard, 33 J.B.A.K. 7, 8, 58 (1964).

"The Psychotherapists' Privilege," Craig Kennedy, 12 W.L.J. 297, 299, 306, 309 (1973).

"Medical Malpractice Litigation: The Discoverability and Use of Hospitals' Quality Assurance, "Reid F. Holbrook and Lee J. Dunn, Jr., 16 W.L.J. 54, 63 (1976).

"The Kansas Open Meeting Act: Sunshine on the Sunflower State?" Deanell R. Tacha, 25 K.L.R. 169, 184 (1977).

"Evidence: Justification for Extension of the Psychotherapist Privilege," Ronald P. Wood, 17 W.L.J. 672, 673, 677, 678 (1978).

"Survey of Kansas Law: Evidence," Mark M. Dobson, 32 K.L.R. 625, 647 (1984).

"Evidence: The Psychotherapist-Patient Privilege Under Federal Rule of Evidence 501," Lauren Messersmith, 23 W.L.J. 706, 707 (1984).

"Keeping the Family Out of Court: Court-Ordered Mediation of Custody Disputes Under the Kansas Statutes," Nancy G. Maxwell, 25 W.L.J. 203, 222 (1986).

"Trial Tactics and Depositions: A New Series of Relationships," Vol. IX, Special Issue, J.K.T.L.A. 12 (1985).

"Forensic Psychiatry: Less Typical Applications," Roy B. Lacoursiere, M.D., 30 W.L.J. 29, 35 (1990).

"Identifying and Preserving the Attorney-Client Privilege in Various Business Transactions," David J. Haydon, 61 J.K.B.A. No. 8, 24, 27 (1992).

"Discovery of Insurance Adjustor's Files Under 60-226(b)(3)," L. J. Leatherman, J.K.T.L.A. Vol. XVII, No. 1, 18 (1993).

"Attacking The Peer Review Privilege: Some Ideas," Derek S. Casey, J.K.T.L.A. Vol. XVII, No. 6, 19, 21 (1994).

"Encoded Confidences: Electronic Mail, the Internet, and the Attorney-Client Privilege," William P. Matthews, 45 K.L.R. 273 (1996).

"Compliance Through Cooperation," Robert W. Parnacott, 65 J.K.B.A. No. 5, 22 (1996).

"The Psychologist-Patient Privilege: Time for a Change in Kansas, or is it all in our Heads?" Boyd Isherwood, 37 W.L.J. 659 (1998).

"The Kansas Joint-Defense Privilege: A Cigarette Smokescreen," Derek S. Casey, J.K.T.L.A. Vol. XXII, No. 6, 16 (1999).

"Settlements and Verdicts," Robin Maxon, J.K.T.L.A. Vol. 24, No. 5, 19 (2001).

"What information may you disclose regarding a deceased client?" Paul T. Davis, 70 J.K.B.A. No. 9, 8 (2001).

"Representing a Criminal Defendant who intends to Commit Perjury at Trial: Caught Between a Rock v. Arkansas and a Hard Place," Rick Kittel, 71 J.K.B.A. No. 9, 18 (2002).

"Joint Defense/Common Interest Privilege in Kansas," Joan K. Archer, 75 J.K.B.A. No. 2, 20 (2006).

"Child Victim, Adult Plaintiff: How Kansas Attorney-Client Privilege Law Can Harm Teens and Their Parents," Michael T. Crabb, 18 Kan. J.L. & Pub. Pol'y, No. 1, 73 (2008).

"Finding a Way to Get Along: Joint Defense Agreements and Other Ideas for Forging a United Defense Front," Michael G. Jones, K.D.J.Fall (2007).

"Minimizing Inverted Privilege: An Argument for Higher Standards for Defense Motions to Determine Competency," Bradley Hook, 27 Kan. J.L. & Pub. Pol'y 125, 128, 138 (2018).

Attorney General's Opinions:

Open public meetings; executive sessions; consultation with an attorney. 86-162.

Code of professional responsibility; privileged communications. 87-23.

Records of attorney's investigation for community college protected by attorney-client privilege. 1999-48.

Ability of Behavioral Sciences Regulatory Board to issue investigative subpoenas. 2001-36.

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-2805 (4 th clause) and the 1961 Supp. thereto.

1. Mentioned; respondents discharged in proceedings in disbarment. In re Ratner, 194 K. 362, 371, 399 P.2d 865.

2. Communications in question not confidential, section not applicable. Pickering v. Hollabaugh, 194 K. 804, 809, 401 P.2d 891. Pickering, executrix v. Hollabaugh, executor, 197 K. 766, 420 P.2d 1012.

3. Section not applicable to relationship between claims adjuster and insured. Alseike v. Miller, 196 K. 547, 558, 559, 412 P.2d 1007.

4. Testimony erroneously excluded only technical error. Craig v. Craig, 197 K. 345, 349, 416 P.2d 297.

5. Communication of notice of intention to invoke Habitual Criminal Act. Brown v. State, 198 K. 345, 346, 347, 424 P.2d 576.

6. Not error to refuse examination of correspondence of attorney representing two parties, when both have not joined in request for such examination. Bollinger v. Nuss, 202 K. 326, 343, 449 P.2d 502.

7. Term "communications" includes communication from client for purpose of securing legal advice; statute makes no distinction between "kept lawyers" and those retained on case-by-case basis; inter-office memoranda and other memos held privileged. New York Underwriters Insurance Company v. Union Construction Company, 285 F.Supp. 868, 869.

8. Announced intention of client to commit perjury, or any other crime, not included within confidences which an attorney is bound to respect. State v. Henderson, 205 K. 231, 237, 468 P.2d 136.

9. Communications in presence of third persons not confidential. Fisher v. Mr. Harold's Hair Lab, Inc., 215 K. 515, 519, 527 P.2d 1026.

10. Referred to in determining subpoena issued under 44-1004 for employee's arrest and conviction records not violative of constitutional right of privacy. Atchison, T.& S.F. Rly. Co. v. Lopez, 216 K. 108, 125, 531 P.2d 455.

11. Attorney's disclosure that attorney believed client committed fraud by shaving hair off his chest not a violation; disclosure not a confidential communication. State v. Regier, 228 K. 746, 748, 621 P.2d 431.

12. Attorney-client privilege not applicable to physical evidence of crime in possession of defense attorney. State v. Carlin, 7 K.A.2d 219, 224, 640 P.2d 324 (1982).

13. Admissibility of letter from defendant's attorney or testimony of knowledge based upon letter considered. Klinzmann v. Beale, 9 K.A.2d 20, 25, 27, 670 P.2d 67 (1983).

14. Cited in holding objection to admissibility of statements by defendant or counsel at diversion conference not available to codefendant. State v. Wilkins, 9 K.A.2d 331, 333, 676 P.2d 159 (1984).

15. Where defendant testified at own trial, court erred in prohibiting cross-examination regarding refusal to testify at earlier trial of fellow defendant. State v. Nott, 234 K. 34, 40, 669 P.2d 660 (1983).

16. Cited in holding communications between spouses in presence of or overheard by others not privileged; privilege limited to communications seeking to transmit information. State v. Newman, 235 K. 29, 40, 680 P.2d 257 (1984).

17. Original counsel's subsequent disclosure to district attorney not waiver of client/co-defendant's privilege under (a)(3)(iii); (b)(5) inapplicable to co-defendants. State v. Maxwell, 10 K.A.2d 62, 64, 691 P.2d 1316 (1984).

18. Former attorney permitted to testify about having given notice to defendant on required court appearance. State v. Breazeale, 11 K.A.2d 103, 105, 713 P.2d 973 (1986).

19. Error in ordering production of plaintiff's statement to his lawyer and use at trial did not affect substantial rights (60-261). Girrens v. Farm Bureau Mut. Ins. Co., 238 K. 670, 679, 680, 715 P.2d 389 (1986).

20. Error in admitting attorney-client relationship records into evidence not prejudicial where other sufficient evidence to sustain findings admitted. Ferrell v. Ferrell, 11 K.A.2d 228, 719 P.2d 1 (1986).

21. Cited; existence of confidential relationships pursuant to 38-1514 examined. State v. Munyon, 240 K. 53, 57, 726 P.2d 1333 (1986).

22. Exclusion of corporate counsel's testimony regarding conversation with corporate officer who mistook their relationship not error or abuse of discretion. Wylie v. Marley Co., 891 F.2d 1463, 1471, 1472 (1989).

23. Cellmate's testimony about defendant's claimed privileged information examined. State v. Spears, 246 K. 283, 287, 788 P.2d 261 (1990).

24. Privilege contained herein compared with peer review privilege contained in 65-4915(b) in medical malpractice case. Herbstreith v. de Bakker, 249 K. 67, 80, 815 P.2d 102 (1991).

25. Discovery exception regarding attorney-client privilege, sanctions imposed for refusal to comply with discovery order (60-237(b)(2)) examined. Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg Grain Co., 16 K.A.2d 30, 35, 818 P.2d 805 (1991).

26. Party made known to court the objection to action of court and grounds therefor. Robinson v. McBride Bldg. Co., 16 K.A.2d 120, 122, 123, 818 P.2d 1184 (1991).

27. Attorney-client privilege was not waived, court abused discretion, reinstate plaintiff's pleadings. Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg Grain Co., 250 K. 54, 60, 824 P.2d 933 (1992).

28. Evidentiary hearing on motion to change prosecutor, conflict may arise merely seeking legal advice, burden of proof. City of Hutchinson v. Gilmore, 16 K.A.2d 646, 649, 827 P.2d 784 (1992).

29. Communication by attorney to client regarding time and location of trial are not protected by attorney-client privilege. In re Adoption of A.S., 21 K.A.2d 714, 718, 907 P.2d 913 (1995).

30. Memorandum between corporate officer and attorney protected by attorney-client privilege; crime or fraud exception inapplicable. Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1370 (1997).

31. Narrative statements in attorney fee statement are not per se privileged under the attorney-client privilege. Cypress Media, Inc. v. City of Overland Park, 268 K. 407, 997 P.2d 681 (2000).

32. Attorney representing daughter in matter of beneficiary of IRA account has no duty with respect to interest of stepfather. Johnson v. Wiegers, 30 K.A.2d 672, 46 P.3d 563 (2002).

33. Cited; refusal of trial court to allow questioning of victim's wife about victim's medical care held harmless. State v. Jones, 287 K. 547, 554, 197 P.3d 815 (2008).

34. Attorney-client privilege analysis must be made before issuance of subpoena to criminal defense counsel to testify about current or former client confidences. State v. Gonzalez, 290 K. 747, 234 P.3d 1 (2010).


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