dissenting.
I respectfully dissent. The affidavits of both Davis and Hueck state that a discussion was had on whether the payment of fees for the representation of another party was confidential. Davis avers that he “conveyed the message or impression to TPC [Hueck] that the transactions of his paying me these fees were confidential,” and Hueck states that Davis advised that the payment of fees would be confidential. Based on that information, Hueck provided payment for legal services.
Indiana’s statute on incompetent witnesses specifically provides that attorneys shall not be competent witnesses “as to confidential communications made to them in the course of their professional business, and as to advice given in such cases.” IND.CODE § 34-1-14-5 (1991 Supp.) Similarly, Indiana case law has long held “that when an attorney is consulted on business within the scope of his profession, the communications on the subject between him and his client should be treated as strictly confidential.”
Colman v. Heidenreich (1978), 269 Ind. 419, 423, 381 N.E.2d 866, 869;
Jenkinson v. State (1840), 5 Blackf. 465, 466;
Borum v. Fouts (1860), 15 Ind. 50.
Hueck requested legal advice from Davis regarding the confidentiality of paying legal fees for another person. Davis provided this legal advice in the course of his professional business. Subsequently, Hueck paid the legal fees. This whole transaction occurred as a part of the confidential and protected communications between Hueck and Davis.
Under the above analysis, the exception to the general rule in federal law that a third-party’s identity or the fee arrangement would be tantamount to the disclosure of a confidential communication is applicable. Matter of Witnesses Before Special March 1980 Grand Jury (7th Cir. 1984), 729 F.2d 489. Certainly, Hueck’s identity and fee arrangement with Davis were the confidential communications between the parties and as such, are protected. Therefore, the subpoenas issued to Davis should be quashed.