## Facts

- Shannon Leigh Sweeney, a criminal defense attorney, was appointed in May 2016 to represent Dakota James McClanahan on a drug charge.
- McClanahan was released on conditions requiring him to appear at scheduled court proceedings.
- McClanahan failed to appear at a final pretrial conference on November 16, 2016, and was later charged with bail jumping.
- A different attorney represented McClanahan on the bail-jumping charge and moved to dismiss, asserting McClanahan lacked notice of the November 16 hearing.
- The district court denied dismissal and ruled the State could present evidence of “what, if anything,” Sweeney told McClanahan about appearing at the conference.
- The State sought an order permitting Sweeney’s testimony and issued a subpoena compelling her to testify about whether she told McClanahan of the hearing date.
- Sweeney notified the State she would assert attorney-client privilege, moved to quash the subpoena, and the district court denied the motion.
- Sweeney petitioned the Montana Supreme Court for a writ of supervisory control to prevent compelled testimony about attorney-client communications.

## Issues

1. Whether the district court erred by denying a motion to quash a subpoena compelling an attorney to testify about communications she may have had with her client.
2. Whether an attorney’s communication to a client about a scheduled hearing date is protected by attorney-client privilege.
3. Whether the defendant’s challenge to “notice” in a bail-jumping prosecution constitutes waiver, or whether any exception permits compelled disclosure.

## Decision

- The Montana Supreme Court granted supervisory control and reversed the order denying the motion to quash.
- The Court prohibited enforcement of the subpoena to the extent it compelled Sweeney to testify about confidential communications with McClanahan concerning the November 16 pretrial conference.
- The Court held the sought testimony concerned privileged attorney-client communications and the State showed no waiver or applicable exception.

## Legal Principles

- Attorney-client privilege protects confidential communications between attorney and client made for the purpose of facilitating legal services, absent waiver or an applicable exception.
- An attorney’s private communication to a client conveying scheduling or procedural information during representation can fall within the privilege.
- The prosecution’s need to prove an element of an offense does not create an exception allowing compelled disclosure of privileged attorney-client communications.
- A defendant does not impliedly waive privilege merely by contesting an element such as knowledge or notice when the defense does not place privileged communications at issue.
- Supervisory control is appropriate where a lower court’s legal error threatens irreparable harm and ordinary appellate review is inadequate, including compelled disclosure of privileged communications in an ongoing criminal case.

## Conclusion

The Montana Supreme Court barred the State from compelling a former defense attorney to testify about whether she told her client of a hearing date, holding the inquiry invaded attorney-client privilege and that neither necessity nor the defendant’s notice defense established waiver or an exception warranting compelled disclosure.


Sweeney v. Montana Third Judicial Dist. Court, 2018 MT 95, 416 P.3d 187 (Mont. 2018)