State v. Meeks

FINE, J.

¶ 63. {concurring). I agree with the result in this appeal but cannot join in the Majority Opinion for the reasons explained below.

¶ 64. The Majority opines that a trial court may consider the opinion of the lawyer representing a defendant at a competency hearing as to whether that defendant is competent. I disagree.

¶ 65. The general rule is that a lawyer may not testify as a witness in a proceeding at which he or she is representing one of the parties. SCR 20:3.7; see Peck v. Meda-Care Ambulance Corp., 156 Wis. 2d 662, 670-673, 457 N.W.2d 538, 542-543 (Ct. App. 1990).1 Thus, absent *406the extraordinary circumstances mentioned in Rule 20:3.7, testimony at the competency hearing by Jerry J. Meeks's then-current trial lawyer would have been professional misconduct. No doubt, as the Majority opines, a defendant's lawyer who doubts the competency of his or her client must raise the issue, State v. Johnson, 133 Wis. 2d 207, 210-211, 395 N.W.2d 176, 178 (1986), but he or she may not give his or her personal opinion on the merits of the issue. SCR 20:3.4(e) (lawyer may not "state a personal opinion as to the justness of a cause"); Younger v. Rosenow Paper & Supply Co., 63 Wis. 2d 548, 556-557, 217 N.W.2d 841, 845 (1974).

¶ 66. I also do not agree with the Majority's extended discussion in paragraphs 28 to 42. The attorney-client privilege does not protect all communications between a lawyer and his or her client, Wis. Stat. Rule 905.03(4); it only protects "confidential communications from the client to the lawyer, and from the lawyer to the client if disclosure of the lawyer-to-client communications would directly or indirectly reveal the substance of the client's confidential communications to the lawyer." Borgwardt v. Redlin, 196 Wis. 2d 342, 352-353, 538 N.W.2d 581, 585-586 (Ct. App. 1995). There has been no showing at all that the prior lawyer's testimony at the competency hearing revealed or tended to reveal confidential communications from Meeks to her during the course of her representation of him. See Upjohn Co. v. United States, 449 U.S. 383, 396 (1981) (attorney may not refuse to disclose relevant fact within his or her knowledge, unless that knowledge is *407derived from a confidential client-to-attorney communication). For me, that ends the analysis.

¶ 67. For the foregoing reasons, although I agree with the result reached by the Majority, I cannot join in the opinion. Accordingly, I respectfully concur.

SCR 20:3.7 provides:

Lawyer as witness, (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to he a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
*406(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.