concurring.
I write this concurring opinion in response to the dissent which contends the mere ministerial act of a lawyer informing a client of a trial date is a privileged confidential communication made to facilitate the rendering of legal service if so intended by the lawyer or the client. The dissent cites not one case nor any relevant legislative history to back up the conclusion reached. The reason no authority is cited, other than the statute and parts of its commentary, is that every appellate court that has considered the issue, including the Oregon Court of Appeals, has held such communication is not privileged. The minutes of the Evidence Revision Commission and the legislative history of the Oregon Evidence Code reflect that the legislature wished not to extend the law of attorney-client privileges any further than absolutely necessary to encourage free, open, explicit and candid communication between client and attorney.1
*92The dissent would reverse this case and remand it to the trial court for a determination whether defendant’s attorney, Mr. Scott, or defendant, in fact intended the letter informing defendant of the arraignment date not to be disclosed to third persons within the meaning of the statute.2
The evidence from the record is clear that the lawyer did not intend the communication to be confidential. A court reporter was called as a witness for the state and testified without objection that the following testimony was given by the lawyer at the scheduled arraignment date (the one at which the defendant failed to appear):
“The Court: Mr. Scott, your matter of Ogle first. Is Mr. Ogle in custody?
“Mr. Scott: No, he is not, your honor.
“The Court: Is he present in court?
“Mr. Scott: He is not present.
<<* * * * *
“* * * He resides in Salem or thereabouts. I sent a letter over to what I believe to be his address on June 19th, telling him of [the court date].
U* * * * *
“* * * and the letter was not returned. I don’t know what to say.”3
Does this colloquy indicate the lawyer, the court or anyone considered the mailing of the notice of the trial date to be confidential? The lawyer disclosed the fact in open court. I submit it clearly demonstrates that in the everyday practice of law such communications are not treated as confidential privileged communications.
I also agree with the reasoning of distinguished jurist Judge Irving R. Kaufman of the Second Circuit Court of *93Appeals (New York) in United States v. Hall, 346 F2d 875, 882 (2nd Cir), cert den 382 US 910 (1965), when he aptly stated:
“* * * The relaying of this message is not in the nature of a confidential communication. [Citations omitted.] Defense counsel served merely as a conduit for transmission of a message. * * * Defendant’s counsel had a duty to relay the instructions to his client in his capacity as an officer of the court, and this in no way was inconsistent with his obligation to his client.”
Further, every court that has been confronted with this issue has agreed with Judge Kaufman. United States v. Clemons, 676 F2d 124 (5th Cir 1982); Matter of Walsh, 623 F2d 489 (7th Cir), cert den 449 US 994 (1980); In re Grand Jury Proc., Des Moines, Iowa, 568 F2d 555 (8th Cir 1977), cert den 435 US 999 (1978); United States v. Osborn, 561 F2d 1334 (9th Cir 1977); United States v. Uptain, 552 F2d 1108 (5th Cir), cert den 434 US 866 (1977); United States v. Freeman, 519 F2d 67 (9th Cir 1975); United States v. Bourassa, 411 F2d 69 (10th Cir), cert den 396 US 915 (1969); United States v. Woodruff, 383 F Supp 696 (ED Pa 1974); State v. Fingers, 564 SW2d 579 (Mo App 1978). See also In re Richardson, 31 NJ 391, 157 A2d 695 (1960).
The dissent contends the sending of notices of court dates is facilitating the rendering of a legal service. Note the “legal service” performed in this case, which I submit is the typical routine of any busy law office. This standard practice demonstrates these communications are mere ministerial acts involving no confidentiality.
Scott testified:
“Q. As part of your standard procedure do you do anything upon receipt of [the court appearance date from the court] to notify the client * * * of the date that is announced * * *9
«* * * * *
“A. Just to save time. I set the cases with, the docket clerk. The docket clerk and I sit down and pick days that are appropriate to try various cases. I get a list of those cases and my secretary then sends out notices from that.
a* * * * *
*94“Q. In terms of standard operating procedure * * * normally are letters sent out in the form of form letters, letters to notify a client of their appearance date? * * *
“A. * * * What I do is I’ll go to the secretary with the list of cases that I have set in either Circuit Court or District Court or elsewhere, and say these persons have to be notified about this appearance at this time and it will be on the list. * *
Does this sound like a “confidential communication” within the definition of OEC 503(l)(b)?
“ ‘Confidential communication’ means a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.”4
I agree with the comments of Professor Laird Kirkpatrick:
“Under prior Oregon law it has been held that the following are not confidential communications protected by the privilege: disclosure of the existence of assets left with an attorney, see State ex rel Hardy v. Gleason, 19 Or 159, 23 P 817 (1890); the fact of employment and the name and address of a client. See Cole v. Johnson, 103 Or 319, 205 P 282 (1922); In re Illidge, 162 Or 393, 91 P2d 1100 (1939). The Commentary states that the legislature did not intend to modify the law of these cases, described in the Commentary as exceptions to the privilege. See also State v. Bilton, 36 Or App 513, 516, 585 P2d 50 (1978) (court held that communications between the attorney and client in a criminal case as to the time and place of trial are ‘not within the attorney-client privilege, since they are nonlegal in nature with counsel simply performing a notice function. Clearly, the date set for trial is a matter of public record and cannot conceivably be considered confidential.’)” Kirkpatrick, Oregon Evidence 148-49 (1982).
If the dissent considers this notification to be a confidential privileged communication between lawyer and client if so intended by the lawyer, how is the court ethically to *95communicate the trial date to the client? Is the court to “ex parte” send a letter containing the notice of the trial date to the client? If the dissent’s position is correct, “furtherance of the rendition of professional legal services to the client” would include not only notification of the trial date, but also notification of the name of the trial judge, the name of the prosecutor, the number of the courtroom where the trial is to be held and the location of the county courthouse. Surely these communications are not to be considered “confidential communications” within OEC 503(l)(b).
What actually happened in this case? The defendant was arrested and placed in custody. He was brought before the court without counsel. The Deputy District Attorney was present. Mr. Scott, the Douglas County Public Defender was appointed to represent the defendant. With Mr. Scott present, the indictment was read to the defendant and the case was continued for a specific arraignment date. The defendant, released on his own recognizance, agreed to keep in contact with his lawyer and not to leave the state. The lawyer, ex parte, picked out an arraignment date at the court clerk’s office and mailed notice of that date to the defendant at the address the defendant listed on his conditional release agreement. The defendant testified that he never received the letter. If that be true, where and when did the confidential communication take place between lawyer and client? Of course, if the defendant had testified that he had engaged in a communication with his lawyer about the court date, then the lawyer could be called to testify, because the client would have waived the privilege under OEC 5115 by testifying about the communication.
*96The fact is that trial judges, knowing they cannot ethically communicate ex parte with lawyers’ clients, order the lawyers to perform the task for the court, as officers of the court, to help discharge ministerial acts necessary to efficient administration of the judicial system. As pointed out in a footnote in the majority opinion, the trial judge stated:
“By way of policy, in administering the courts, setting cases for trial, it seems to be that we have to be able to rely on notice being sent through the attorney to the client. If we are unable to rely on notice reaching the client through the attorney, then the alternatives are unacceptable. We would have to have clients either retained in custody so they will be available for trial, or have them appear in person periodically to — say, weekly to show the Court that they are in fact going to in good faith attend to their judicial business. These alternatives are unacceptable, and I don’t feel that it was ever intended that the information imparted to the client as to his trial dates or appearance dates is privileged in the law.” 297 Or at 89 n 4.
In this case the trial judge ordered defense counsel to communicate the court appearance date to his client as follows:
“The Court: Is he present in court?
“Mr. Scott: He is not present.
“The Court: All right. Do you have that phone number?
“Mr. Scott: Let’s see. 363-1473.
“Mr. Scott: I would appreciate having ten days to do that.
“The Court: Well, I am not going to give you ten days, because if he is gone, why — but I will give you until Monday.
“Mr. Scott: Okay.
“The Court: I will put the burden on you, Mr. Scott, to advise me by Monday evening whether you have been able to make contact or not.
“Mr. Scott: * * * I should be able to do it this afternoon.”
As a practical matter, as expressed by the experienced trial judge, if lawyers cannot be depended upon to carry out the simple task of informing clients about trial dates, the result will be to incarcerate more people arrested for crime in pretrial detention. For instance, in Multnomah County in *971983, 4,393 defendants were arraigned in felony court, 3,168 were granted pretrial release, and 240 failed to appear. If an effective substitute cannot be found for court date notices, even a ten percent increase in pretrial detention could have a devastating effect for county correctional facilities — now filled to capacity — as well as to the defendants. Of course, the court could insist on the defendant being present at every court date setting, but because there can be a number, if not dozens, of tentative dates set for each case, this would not be practical in most cases. The court could set tentative court dates, depending on availability of lawyers, parties, witnesses and judges with a certain “tag” date, e.g.; “In addition to any other court date set, 90 days from this date, you must be before me in any event.” As an alternative, the court could insist on a waiver of any attorney-client privilege as a condition of release and the recognizance personnel could be authorized by the defendant to notify the defendant of all court dates. A court could also insist that every petition and order for an appearance date change be personally signed by the defendant if not present in the court.
Although there may be some alternatives to calling counsel as a witness, the fact remains that as a practical matter the most efficient way to inform a client of a court date is to have defense counsel or counsel’s assistants communicate the court dates. Nothing about communicating a trial date constitutes a confidential communication.
The real concern is the policy effect of an attorney testifying against the former client. The fact that a lawyer can be called to testify against a client is not an evidence problem, it is a professional relationship problem.6 Such a practice *98challenges the credibility of the lawyer in the client’s eyes. The client can bemoan the fact that “my own lawyer testified against me.” That may depreciate the feeling of attorney-client trust, but the purpose of the law of privileges is to encourage full disclosure between the lawyer and his client so that the client receives fully informed legal advice, not on maintaining a general trust in the profession. Of course, it can be argued that if a client lacks trust in the lawyer-client privilege he or she might be unwilling to disclose confidences, but the law does not ordinarily prohibit a lawyer from testifying about nonconfidential matters,7 such as the name, address, occupation or business of a client. Annot, 16 ALR 3d 1047 (1967). For many other examples, see 2 Louisell & Mueller, Federal Evidence 540-49, § 210 (1978), and Saltzburg & Redden, Federal Rules of Evidence Manual 237-38 (3rd ed 1982). As was emphasized by the Supreme Court of the United States in Fisher v. United States, 425 US 391, 403, 96 S Ct 1569, 48 L Ed 2d 39 (1976):
“Confidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged. 8 J. Wigmore, Evidence § 2292 (McNaughton rev. 1961) (hereinafter Wig-more); McCormick, [Evidence] § 87, p. 175 [hereinafter McCormick]. The purpose of the privilege is to encourage clients to make full disclosure to their attorneys. 8 Wigmore § 2291, and § 2306, p. 590; McCormick § 87, p. 175, § 92, p. 192; [citations omitted]. As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice. However, since the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege. * * *”
The .400 hitters in evidence law, Wigmore, Morgan and McCormick, all expressed anti-privilege attitudes,8 and *99Wigmore’s utilitarian approach to privileges is expressed in the cited federal cases. The majority of this court feel these decisions are sound and consistent with a proper interpretation of OEC 503.
Here, we are dealing with an issue not specifically covered by an OEC rule, not subject to any legislative commentary, not mentioned in the proposed federal rules, and not previously addressed by this court. Therefore, decisions by federal courts universally holding that ministerial communications of court dates are not within the lawyer-client privilege, although not binding on this court, should not be ignored.
I concur with the majority opinion.
An example of this intent is that the commission and legislature opted for the “control group” rule, leaving all communications between corporate counsel and non-control group employes not privileged. The commentary to OEC 503(1)(d) states:
“Under the control group test, the attorney-client privilege attaches only when the corporate employe is in a position to control or have substantial effect on a decision about any action which the corporation may take upon the advice of an attorney. This group includes, and may be limited to, the director and executive officers of the corporation. Recent case law elsewhere would extend the privilege to a broader range of personnel. Upjohn Co v. United States, [449 US 383, 101 S Ct 677, 66 L Ed 2d 584 (1981)] * * (Emphasis added.)
Professor Kirkpatrick in his work “Oregon Evidence” (1982), states, “[w]hether the communication is confidential depends upon the intent of the client.” (Emphasis added.) Therefore, if that be true, remanding of the case to ascertain the intent of the lawyer would be inappropriate. Intent of the client would be irrelevant because the client claims he never received the communication.
This testimony alone should render the defendant’s contention moot since this testimony from the court reporter was substantively the same as that given by the attorney.
This language is not unique to Oregon. It appears in the 1969 draft of the Proposed Federal Rules of Evidence and has been adopted by 16 states. See, e.g., Neb Rev Stat § 27-503 (cum supp 1978); Wis Stat Ann § 905.03 (West cum sup 1979). For other examples, see 2 Weinstein’s Evidence (1982).
OEC 511 provides:
“A person upon whom Rules 503 to 514 confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or the person’s predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This section does not apply if the disclosure is itself a privileged communication. Voluntary disclosure does not occur with the mere commencement of litigation or, in the case of a deposition taken for the purpose of perpetuating testimony, until the offering of the deposition as evidence. Voluntary disclosure does occur, as to psychotherapists in the case of a mental or emotional condition and physicians in the case of a physical condition upon the holder’s offering of any person as a witness who testifies as to the condition.”
If I understand the dissent, the communicating lawyer would be called to testify as to intent. If that be true, the problem of substituting counsel would still exist because the lawyer could not offer himself as a witness under OEC 606-1. In this case, substitute counsel has already been appointed, but if the communication about a trial date were absolutely privileged then no substitution would be required because the lawyer could not be called to testify about any aspect of the communication. This is the real problem faced by the defense bar and which, understandably, they wish to avoid. If defense counsel cannot be called as a witness — period, then counsel does not have to “conflict” off the case. It is a discouraging fact that in the statistics cited probably 240 substitute lawyers had to be appointed to replace counsel who spent untold hours preparing cases. From an administrative point of view, I am certain an absolute privilege would be better than what the dissent suggests. Further, if the lawyer is going to testify as to his intent, cannot the client claim the lawyer-client privilege to prohibit the lawyer from testifying, or does the dissent suggest the lawyer’s intent is not privileged.
See Kirkpatrick, Oregon Evidence 148-49 (1982).
8 Wigmore, Evidence § 2291 (McNaughton rev 1961); Morgan, Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence, 10 U Chi L Rev *99285, 286, 288-290 (1942); Morgan, Some Observations Concerning a Model Code of Evidence, 89 U Pa L Rev 145,153 (1940); McCormick, Law and the Future: Evidence, 51 NW U L Rev 218, 220 (1956).