## Facts

- Valerie Gonzalez faced murder charges; public defender Sarah Sweet‑McKinnon represented her during pretrial proceedings.
- In preparing the defense, Sweet‑McKinnon learned the State planned to call jailhouse witnesses, including individuals who were current or former clients of the public defender’s office.
- Sweet‑McKinnon disclosed to the court (without identifying the source) that a former public defender client had told that client’s lawyer, during representation, that the client intended to lie when testifying against Gonzalez.
- Sweet‑McKinnon moved to withdraw due to conflicts and confidentiality concerns; the district court allowed withdrawal.
- The prosecutor obtained a subpoena compelling Sweet‑McKinnon to testify at the preliminary hearing and identify the former client who intended to commit perjury; Sweet‑McKinnon moved to quash.
- The district court denied the motion to quash, ruled no applicable privilege barred disclosure, and ordered Sweet‑McKinnon to answer.
- Sweet‑McKinnon refused on the stand, invoking attorney‑client privilege and ethical confidentiality; the court held her in civil contempt and imposed a coercive sanction of $1,000 per day until compliance.
- Sweet‑McKinnon appealed the contempt order and the underlying subpoena and motion-to-quash rulings.

## Issues

1. Whether appellate jurisdiction over a civil contempt order includes review of the underlying subpoena issuance and motion-to-quash rulings.
2. Whether attorney‑client privilege and/or the ethical duty of confidentiality barred compelling defense counsel to identify a former client and disclose a client statement indicating intent to commit perjury as a prosecution witness.
3. Whether, and under what prerequisites, a prosecutor may subpoena criminal defense counsel to testify about confidential information of a current or former client under KRPC 3.8(e).
4. Whether the civil contempt finding and coercive sanction were valid where the subpoena issued without compliance with KRPC 3.8(e) and privilege/confidentiality issues were not properly analyzed.

## Decision

- The Kansas Supreme Court held it had statutory jurisdiction to review the civil contempt order and the underlying subpoena and motion-to-quash decisions.
- The court distinguished the narrow, statutory attorney‑client privilege from the broader ethical duty of confidentiality and found the district court’s analysis inadequate.
- The court held KRPC 3.8(e) supplies the governing framework when a prosecutor seeks to subpoena defense counsel about client-related confidential information.
- Because the prosecutor did not proceed by motion satisfying KRPC 3.8(e) and the district court did not apply its requirements, the subpoena should not have issued and should have been quashed.
- The court reversed the civil contempt order and vacated the coercive monetary sanction, remanding for further proceedings.

## Legal Principles

- Appellate review of a civil contempt order may encompass review of the underlying subpoena issuance and denial of a motion to quash when authorized by statute.
- Attorney‑client privilege is a statutory evidentiary protection for certain confidential communications sought through compelled disclosure; it is distinct from, and narrower than, ethical confidentiality duties.
- Ethical confidentiality under the Kansas Rules of Professional Conduct broadly covers information related to representation and must be considered when the State seeks defense counsel testimony about client-related matters.
- Under KRPC 3.8(e), a prosecutor seeking to subpoena criminal defense counsel must proceed by motion and show: (1) the information is not protected by any applicable privilege; (2) the evidence is essential to the successful completion of an ongoing investigation or prosecution; and (3) no other feasible alternative exists to obtain the information.
- A coercive civil contempt sanction based on refusal to answer under an improperly issued subpoena constitutes an abuse of discretion.

## Conclusion

The Kansas Supreme Court reversed a civil contempt sanction against a public defender who refused to identify a former client as the source of a perjury-intent statement, holding that subpoenas compelling defense counsel testimony about client-related confidential information require strict compliance with KRPC 3.8(e) and careful privilege/confidentiality analysis.


State v. Gonzalez, 290 Kan. 747, 234 P.3d 1 (Kan. 2010)