dissenting. I am concerned with the far-reaching effects of the majority opinion’s broad definition of “confidential communication,” and for this reason I respectfully dissent. It appears that the majority is accepting the appellant’s argument that it is not the substance of the communication that matters, but the way in which it is communicated or the messenger who communicates it. This directly contradicts the plain meaning of Rule 502 of the Arkansas Rules of Evidence which protects the client only from the disclosure of confidential communications. Rule 502 further provides that confidential communications are those not intended to be disclosed to third persons. The information elicited from Mr. Norwood and his secretary was not confidential in nature, as it did not concern the appellant’s substantive case nor his guilt or innocence of the charge.
To the contrary, much of what was testified to had already been disclosed to third persons and was also of public knowledge. Specifically, the trial court acknowledged that prior to the hearing on the motion to dismiss, the court had discussed with Mr. Norwood the situation regarding the appellant’s failure to appear at the previously scheduled pretrial hearing. The trial court also pointed out that the bases for Mr. Norwood’s anticipated testimony was contained in the motion to withdraw from appellant’s case which was on file with the clerk’s office. How can it be said, then, that merely because this information was now coming from the mouth of Mr. Norwood that it was magically transformed into a confidential communication? Furthermore, even the fact that the State had previously secured testimony of an expert witness at appellant’s first trial was also public knowledge. Likewise, the testimony by Mr. Norwood concerning his general desire to counter any expert witness employed by the State with one of his own, was not information of a confidential nature, as it merely reflected the nature of the crime with which the appellant was charged without disclosing any particulars of the merits of the case.
I fear that the majority’s decision in this case will have a chilling effect on the day-to-day practice of law and the relationship between trial courts and attorneys. Attorneys may now be reluctant to offer any candid explanation to the trial court as to his or her client’s absence for a scheduled court date, even if it would be beneficial to the client, as such information may later be construed as confidential. Given the majority’s construction of the attorney-client privilege, attorneys may now feel that they are forced to choose between their duties of refraining from revealing potentially confidential information to the court and their duty to be candid and honest with the court as officers of it.
I am equally concerned about the message this opinion sends to criminal defendants that they have no obligation to stay in contact with their attorneys during the course of defending their cases. A criminal defendant need only avoid contact with his attorney, lay low for a year or so, fire the attorney, hire another attorney, and promptly file a motion to dismiss for violation of his right to speedy trial. In light of the majority’s decision, it is unclear what recourse the State would have in such a situation. What is clear in this case, however, even without viewing the substance of the written communications, is that this appellant intended to manipulate the system by causing these delays, and it is equally clear that he succeeded.
GLAZE, J., joins in this dissent.