dissenting.
Defendant was tried on a charge of violation of ORS 162.205, Failure to Appear in the First Degree. It was necessary to conviction that the state prove that defendant intentionally failed to appear. As a link in the chain of evidence necessary to convict, the state had to prove that defendant knew the date on which he was to appear.* 1
To furnish evidence upon which the trier of fact could make a finding that defendant knew the appearance date, the state called a lawyer who had represented defendant on the earlier felony charge to testify that the lawyer had communicated the appearance date on the earlier charge to the defendant. The defendant objected, citing the “Lawyer-client” privilege, OEC 503(2). Over that objection, the lawyer was permitted to testify that he had communicated to the defendant the date.
The majority opinion proceeds as follows: (1) The application of the privilege is dependent upon two elements: (a) “the intent of the parties [emphasis added] to shield the communication from disclosure” and (b) “the purpose for *100which the communication is made.” (2) A court appearance date is a matter of public record. (3) A lawyer acts as an officer or agent of the court in communicating the date to the client. (4) Communication of the court date is not made for the purpose of facilitating the rendition of professional legal services to the client; therefore, it is not necessary to address the intent of the lawyer and client in this case.
I have no quarrel with the first and second premises.
As to the third premise, I would agree that the trial courts do rely upon lawyers to communicate court appearance dates to the clients, and I would even agree that perhaps where the lawyer fails to advise the court that he will not act as the court’s agent for communication, the lawyer tacitly assents to acting, at least in part, as the court’s agent. That does not mean, however, that such is his sole role. He also makes the communication because he is the very person who is the lawyer for the particular party.2
Before addressing the fourth premise, I would draw attention to the fact that the statutory scheme contains two separate uses of the phrase, “the rendition of professional legal services to the client.” OEC 503(l)(b) provides:
“ ‘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.”
OEC 503(2), insofar as it is pertinent to this case, provides:
“A client has a privilege * * * to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
“(a) Between the client * * * and the client’s lawyer * * * 91
In the definition, OEC 503(l)(b), the phrase is used to describe an exception to “third persons.” In other words, there may be some disclosure intended beyond lawyer and client *101without destroying confidentiality and thereby the privilege. As stated in the legislative commentary:3
“The rule allows some disclosure beyond the immediate circle of lawyer and client and their representatives without impairing confidentiality, as a practical matter. It permits disclosure to persons ‘to whom disclosure is in furtherance of the rendition of professional legal services to the client,’ contemplating that these will include a ‘spouse, parent, business associate, or joint client.’ Comment, California Evidence Code section 952. It also allows disclosure to persons ‘reasonably necessary for the transmission of the communication’ without loss of confidentiality.”
The phrase is used in OEC 503(2), on the other hand, to describe or limit by “purpose” those confidential communications to which the privilege applies. The two uses of the phrase should not be confused.4
I cannot agree with the fourth premise of the majority, that the communication was not made for the purpose of facilitating the rendition of professional legal services to the client. A lawyer is employed for the purpose, among other things, of ascertaining the dates of court appearances, representing the client at court appearances, advising the client in preparation for those appearances and the client’s conduct at such appearances. Even if I assume, arguendo, that notifying the client of a court appearance date is not itself the rendition of professional legal services, the giving of that notification most certainly is a communication made to facilitate the rendition of such services.5
*102Before proceeding to discussion of the purported authority on which the majority reaches its holding that the communication here was not for the purpose of facilitating the rendition of legal services, I pause to note that the majority and the concurring opinion simply refuse to accept the fact that the legislature chose the term “legal services” rather than “legal advice” in promulgating OEC 503. In the main, the majority relies on federal court cases that analyze the issue in terms of whether such a communication is the rendition of legal advice. I heartily agree that it is not “legal advice,” but what that has to do with whether sending notice of the trial date facilitates the rendition of “legal services” is something I fail to fathom.* ****6
“Legal services” is obviously a much broader term than “legal advice.” When a lawyer accompanies his client to court for arraignment and says not a word to him during the proceeding, the lawyer certainly renders a legal service. When the lawyer marshals the evidence, subpoenas the witnesses, drafts requested instructions and a form of verdict, makes opening statement, makes appropriate motions upon trial, examines witnesses, argues the case to the factfinder, takes exceptions to the court’s charge to a jury, etc., he surely *103performs “legal services,” although none of those is the rendering of “legal advice.”7 Likewise, out of the courtroom setting, the lawyer does many things for clients that are “legal services” not involving, as such, the giving of legal advice. For example, a lawyer may at the behest of a client attend a public hearing before a government agency to present the views of a client or merely to observe what transpires in order to be able to serve or advise the client as to a subsequent course of action. The lawyer might attend if the client desires the lawyer to attend, although that request to attend is in direct conflict with the lawyer’s advice to the client that the lawyer should not attend upon the meeting or hearing.
Despite the fact that the rendition of legal advice is only a part of rendition of legal services, the majority and concurring opinions insist in treating the interpretation of OEC 503 as if it spoke to “legal advice” rather than “legal services.” The majority specifically acknowledges that the outcome of this case turns on interpretation of OEC 503 and then proceeds to ignore the text of that rule. Instead of discussing this case in terms of the text enacted by the legislature, the majority turns for support to case law that interprets entirely different statutory text or has no reference at all to a rule established by a legislative body.
The majority, while acknowledging that the case antedates enactment of the Oregon Evidence Code, cites State v. Bilton, 36 Or App 513, 585 P2d 50 (1978). That decision was concerned with interpretation of a statute, former ORS 44.040, that made no pretense of rigorously defining the privilege as has been done in OEC 503. Not only did that decision concern a different statutory text, that court relied upon a trial court decision, United States v. Woodruff, 383 F Supp 696 (ED Pa 1974), which was not interpreting any text whatsoever. The trial judge in that case based his decision, in *104the first instance, on the decision of another trial judge in United States v. United Shoe Machinery Corporation, 89 F Supp 357 (D Mass 1950). The judge in Woodruff quotes from the other trial judge’s decision language that, on its face, disclosed that the United Shoe judge believed the privilege only applied to communication of a fact from client to attorney for the purpose of securing advice or services.8 The judge in Woodruff, as in the case at bar, had before him the issue of whether the lawyer’s communication to the client of an appearance date was privileged. One of his reasons for rejecting the claim of privilege is his statement that the communication was not made with the purpose of “securing” legal advice or assistance. How strange! It must be rare indeed that a lawyer makes a communication to a client for the purpose of securing legal advice or assistance. The judge in Woodruff then cited two appellate decisions, in which he found that the court had rejected a like claim of privilege: United States v. Hall, 346 F2d 875 (2d Cir 1965), cert den, 382 US 910, 86 S Ct 250, 15 L Ed2d 161 (1965), and United States v. Bourassa, 411 F2d 69 (10th Cir 1969), cert den, 396 US 915, 90 S Ct 235, 24 L Ed2d 192 (1969), to which I shall turn my attention presently. The trial judge then passed to a lengthy quotation from Wigmore on Evidence, in which that author was concerned with what is “legal advice” and not with the term our legislature has chosen. The Woodruff judge sought to buttress his decision by pointing out that the communication was based upon facts obtained by the attorney from a source other than the client and, consequently, could not be privileged. I suppose this means that if a client employs a lawyer to investigate whether the mortgage and deed records at the county courthouse contain certain information and to report the result of the investigation to the client and to keep confidential the fact of the report to the client, the lawyer’s communication is not privileged because the source of the information is a public record and did not come from the client to the lawyer.
As noted, the judge in Woodruff relied on United States v. Hall, supra. The Hall court did not purport to apply *105any statutory text whatsoever; rather, that court relied upon Wigmore’s assertion that this kind of communication is not legal advice. The Hall court did cite a decision as further authority. What decision was that? Why, it was that of the trial judge in United States v. United Shoe Machinery Corporation, supra, which I have already discussed at footnote 8 and accompanying text.
The other appellate court decision relied upon in Woodruff was United States v. Bourassa, supra, in which the court was not concerned with any statutory text or rule. The full holding on this issue was:
“Relating such notice to the client was counsel’s duty as an officer of the court, and was not within the privilege. United States v. Hall, supra.”
411 F2d at 74. In other words, Bourassa contains no reasoning whatsoever and relies upon a decision which, in turn, relies upon Wigmore’s words concerning legal advice rather than services and upon United Shoe Machinery Corporation.
The majority opinion in the case at bar relies upon Bourassa. I submit that that decision is indeed a slim reed to support a decision that acknowledges that this case “turns upon interpretation of [OEC 503].”
The majority cites United States v. Freeman, 519 F2d 67 (9th Cir 1975). Once again, we find a case in which the opinion is not concerned with the interpretation of any statutory text or rule. Indeed, the court relies upon United States v. Hall and United States v. Woodruff, both supra. This group of cases reminds me of how it was jokingly said that people sought to make a living in the great depression, namely, by taking in each other’s washing.
Finally, the majority relies upon Matter of Walsh, 623 F2d 489 (7th Cir 1980), cert den sub nom Walsh v. United States, 449 US 994, 101 S Ct 531, 66 L Ed2d 291 (1980). The Walsh court relied upon Wigmore’s dissertation concerning the privilege as it applied to legal advice, not legal services. The court noted that “this Circuit” had adopted the Wigmore formulation and quoted from that formulation. Not only did the quoted material relate to advice rather than services, it formulated a rule applicable only to communications from client to lawyer. Once again, the majority is shown to have *106relied upon a decision that interprets no text, let alone a text similar to that adopted by the legislature of this state.
The majority cites one other decision, United States v. Osborn, 561 F2d 1334 (9th Cir 1977), for the proposition that because the privilege works to withhold from the trier of fact relevant information, the privilege is to be applied only where necessary to achieve its purpose. I certainly would not disagree, but before deciding what the purpose of the privilege might be, so as to apply it narrowly, a court should determine what the legislature of the forum has declared the privilege to be.
The concurring opinion cites some of the same cases as does the majority and adds cases to the list. Interestingly enough, the concurring opinion does not indicate that a single one of those cases is concerned with the interpretation of any statute or rule. I infer that the failure to do so stems from the fact that the decisions cited simply do not rest upon any text similar to that of OEC 503.
I would take special note of the concurring opinion’s quotation from Fisher v. United States, 425 US 391, 403, 96 S Ct 1569, 48 L Ed2d 39 (1976). The quoted language speaks only to disclosures by a client to the lawyer for the purpose of obtaining legal advice. I just do not see what that has to do with a communication made by the lawyer to' the client to facilitate the rendition of professional legal services.
The concurring opinion chides this dissent for not citing one case or any relevant legislative history to support my conclusion and states that the reason is that “every” appellate court has held such a communication not to be privileged. To this I answer that I cite no case because I can find no case concerned with statutory language even remotely similar to that of OEC 503. As I have already noted, neither can the majority nor the author of the concurring opinion.
The concurring opinion states that the legislative history reflects that the legislature wished to promulgate a narrow privilege. No matter what the legislature or its advisers wished to do, we are faced with interpreting what *107they did do. My opinion is the only one in this collection that proceeds from the text of the legislative product.9
My conclusion that the communication from attorney to client was for the purpose of facilitating the rendition of legal services compels me to investigate the matter of intent, which the majority did not need to reach.
Whether any particular communication is a “confidential communication” depends upon intent. “A confidential communication is defined in terms of intent.” Commentary to OEC 503(l)(b).10 To meet the definition it must be intended that the communication not be disclosed to third persons other than those classes described in the definition.
Whether there is such intent is a question of fact. The rule does not state whose intent is the key. Where the lawyer makes a given communication to the client, either one or both may intend that the content of the communication not be disclosed or that the fact of the communication not be disclosed. It might be that a lawyer intends that his communication to his client, or that he made a given communication, not be disclosed to third persons. Because the privilege is that of the client, however, the client may either prevent disclosure or might waive that privilege, and the content, or the fact, of the communication might be revealed despite the lawyer’s intention. On the other hand, the communication from lawyer to client might be intended by the client not to be disclosed, either as to content or fact of communication. For example, a client involved in any kind of litigation might, and very often does, request that the lawyer investigate to determine if certain evidence exists and to report the result of the investigation to the client. When the lawyer makes that report, the lawyer may not give a hang whether or not it is disclosed to *108third persons, but if the client intends that the content, or the fact, of the report not be disclosed to third persons, the lawyer violates the privilege recognized by OEC 503 if he makes disclosure to third persons against the will of the client.
The majority, by reason of its decision that this was not a communication for the purpose of facilitating the rendition of professional legal services, did not address whose intent is to be considered. The concurring opinion touches upon it in such a way as to leave me somewhat puzzled as to what the author’s conclusion in that respect may be. The concurring opinion asserts that in this opinion I would hold that the trial court must ascertain the lawyer’s or defendant’s intent. The concurring opinion then states that the record is clear as to what the lawyer’s intent was and supports that statement by quoting the lawyer’s testimony given at a time after the making of the communication. That testimony does not go to “the intent of the parties [emphasis added],” as the majority puts it, at the time when the communication was made. Some observations must be made about that testimony. It addresses neither the intent of the client nor the lawyer at the time the communication was allegedly made. At least a part of the quoted testimony of the lawyer was given in the absence of the client, making it very difficult to claim the privilege. It is nothing more than a disclosure by the witness lawyer of an alleged communication from himself to his client. However, contends the concurring opinion,
“The lawyer disclosed the fact in open court. I submit it [disclosure in open court?] clearly demonstrates that in the everyday practice of law such communications are not treated as confidential privileged communications.”
This contention means that what one lawyer did as a matter of his particular routine, and in this particular instance, “clearly demonstrates” a universal routine. Even if that were so, what in heaven’s name does that have to do with whether that routine violates a statute? The fact that one lawyer might routinely violate a statute, or that all lawyers do so, cannot operate to repeal or amend the statute unless the practice continues so long without judicial interference as to invoke the doctrine of desuetude, i.e., make the statute obsolete for want of application.
*109At any rate, the concurring opinion speaks here to the lawyer’s intent; nevertheless, the opinion cites Professor Kirkpatrick for the proposition that it is the client’s intent that controls, and the opinion then proceeds to the non sequitur that since the client “claims” he never received the communication, his intent is irrelevant.11
As I have discussed above, I would hold that the intent of either client or lawyer may be sufficient to establish that the communication is a “confidential communication” and therefore a proper subject for the client to invoke the privilege.
In any event, the existence or non-existence of that intention is a fact. As in other threshold questions on the admissibility of evidence, the trial judge must make a determination of the threshold or predicate fact prior to ruling as to admissibility. He cannot do that on intuition or what may be the routine of a particular lawyer or that of lawyers and clients in general. It is what the particular lawyer or client intended as to nondisclosure of the particular communication that is the crux of the decision as to admissibility.
I would hold that the cause must be remanded for trial and that if the objection is again raised, the trial judge must take evidence to show what was the intent as to disclosure to third persons of the fact of communication. The evidence as to content or fact of communication cannot be admitted over the claim of privilege unless the trial judge, based upon evidence, can find that it was not intended that the communication not be disclosed to third persons.
I now desire briefly to discuss one other aspect of the majority opinion.
A footnote to the opinion quotes the trial court to the effect that there is no practical alternative to relying on attorneys to notify their clients of court dates. That may be so, *110but it should lead the majority to the opposite conclusion on the present issue.12
The issue is not whether notice to the attorney is notice to the client for purposes of deciding the original litigation. The issue is whether the attorney subsequently may be called as a witness against the client in different litigation to prove what the attorney told the client (or vice versa) in the prior case. When this court approves calling an attorney as a witness for that purpose, the effect could be to invite lawyers to decline providing personal notification, for the possible sequel of being called as a witness against the client will disqualify the lawyer and members of the lawyer’s firm from representing the client in the later case.13 If the Court’s holding produces this effect, it is exactly the opposite of the reason given to justify it.
*111This apparent conflict, however, is unnecessary. I agree that trial courts should be able to rely on attorneys to notify their clients of court dates. That well may be an attorney’s professional responsibility to the court even in the attorney’s role as “agent” for the client rather than for the court. But the majority’s error is to confuse reliance on assistance of the attorney in the original case with reliance on the attorney’s compelled testimony in a later case.
When an attorney is informed of a court date, it is the court that relies on the attorney to communicate this information to a client. When the attorney is called as a witness against the client in a later case, it is as a witness for an adverse party, i.e., the plaintiff state, not to assist the court. It is the state, not the court, that seeks to prove by means of the attorney’s testimony that the client is criminally guilty of failing to appear. The attorney already has performed his service to the court or the attorney would not be called to testify to that fact. Making the attorney a witness against the client does not encourage tendering that service, it encourages avoiding that responsibility.
This decision cannot well be confined to criminal cases, nor to notice of court dates. Moreover, the rule applies equally to communications by which the client tells the attorney what the client knows. The question whether a person had actual notice can arise in civil cases, in administrative proceedings, in contempt hearings, any time that personal knowledge of an official notification is in dispute. In each situation an attorney who accepts responsibility for communicating information to a client may risk being disqualified from representing the client if the client’s personal knowledge later becomes an issue.
I cannot escape the conclusion that the majority and concurring members of the court are deciding this case upon the basis of what they perceive to be the common law or upon their belief that the legislature meant to enact a rule embodying that common law as expressed by the treatise authors and in the federal cases. They may well be right as to what the legislature intended to do. That I don’t know; what I do know is that the legislature did no such thing. If the legislature meant to codify the views expressed in the authorities cited in the other opinions in this case, the text adopted fails to *112accomplish the purpose. This court should not do violence to what the statutory text does provide. To avoid a new trial for this defendant, and to save his conviction of a Class C felony, the court judicially rewrites a statute. That should not be; if the statute is badly written, the best way to bring it to the attention of the lawmaking department of government is to enforce the statute as written. See, for example, Ferry v. Paulus, 297 Or 70, 682 P2d 262 (1984).
I dissent.
Linde and Carson, JJ., join in this dissenting opinion.In given circumstances a defendant may be convicted of violation of ORS 162.205 even if he did not actually know an appearance date. For example, see State v. Rose, 67 Or App 335, 677 P2d 765 (1984), rev den 297 Or 82, 679 P2d 1367 (1984).
I speak of “party” rather than defendant, for the lawyer in a civil case customarily performs the same dual role.
Although there is no official legislative commentary in the sense of a commentary approved by the Legislative Assembly, a commentary was prepared by legal counsel for the House Committee on the Judiciary and the Senate Justice Committee, and that commentary was approved by those standing legislative committees.
The concurring opinion blurs this distinction when, at the outset, it states that this dissent
“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 client.”
I have not contended any such thing. Neither my discussion nor my reasoning is so circuitous. Intent only comes into play in determining if the definition of “confidential communication” is met. The purpose of the communication to facilitate rendition of legal services governs whether the privilege may be invoked to prevent the disclosure of a confidential communication.
One sentence in the Official Legislative Comment to OCE 503(2) simply does not track with the text of the rule itself. That sentence is:
*102“All these communications [described in OCE 503(2)(a) through (d)] must be specifically for the purpose of obtaining legal services for the client; otherwise the privilege does not attach.” (Emphasis added)
The text of the rule, on the other hand, requires that the purpose be “facilitating the rendition of’ legal services to the client. I cannot explain why the comment is worded as it is.
After quoting the particular witness lawyer’s testimony as to his practice in consulting with the docket clerk to select a trial date and instructing his secretary to send a letter to the client, the concurring opinion asks, “Does this sound like a ‘confidential communication’ within the definition of OEC 503(l)(b)?” I am not sure to what “this” in that question refers. Does it refer to the testimony or to the practice? In either event, the answer does not go to the claim of privilege as to disclosure of the fact of communication. That the witness lawyer consulted with the calendar clerk or any other court officer or employee to select a trial date is not relevant to the claim of privilege by this defendant. That the lawyer has his secretary send the letter to his clients does not, by very definition in OEC 503(l)(b), destroy confidentiality. What the testimony or the practice “sound[s]” like has nothing to do with the statutory text that is sought to be interpreted in the case at bar.
The concurring opinion agrees with Professor Kirkpatrick. I acknowledge most emphatically that both the majority and the concurring opinions agree with the professor. The problem is that the professor is relying, as do those opinions, on authority that is directed to something other than the statutory text.
Again and again the concurring opinion returns to the theme that this type of communication is not rendition of legal services. That opinion makes the point that notifying the client of a trial date is the “typical routine of any busy law office.” Because a law office routinely performs a service for its clients, does that somehow take that particular service out of the category of “legal services”? I submit that, if anything, what a busy law office does routinely for its clients is a legal service. Busy law offices, or lawyers, are not employed by clients for the purpose of parking cars or mowing lawns of the client; rather, they are employed to give legal advice and to perform such legal services as ascertaining trial dates and notifying the client thereof.
In United States v. United Shoe Machinery Corporation, 89 F Supp 357 (D Mass 1950), the issue was the admissibility of some 800 exhibits. The judge stated that he believed the purpose of the privilege was to induce clients (original emphasis) to make communications to their lawyers. The judge did not purport to be applying the text of any rule or statute whatsoever.
The concurring opinion states that certain treatise authors had “anti-privilege attitudes” and that the views of one of them are expressed in the federal cases cited by the majority and the concurring opinions. We might gain some guidance from them had any of those “.400 hitters” addressed this, or similar, statutory text, but because neither the authors nor those courts were dealing with text, I do not understand why that thought is expressed by the concurring opinion.
The idea is also described obversely in the legislative commentary: “Unless an intent to disclose is apparent, however, the attorney-client communication is confidential.”
OEC 503(l)(b) is in the passive voice; the text does not specify whose intent is critical. Whence Professor Kirkpatrick derives his statement that it is the intent of the client that governs confidentiality is not apparent to me. Obviously, it is the client who determines whether to invoke the privilege, OEC 503(2), but that is not the test of controlling intent under the definition of “confidential communication.”
The concurring opinion relies, in part, on some asserted proposition that the trial judge cannot ethically communicate an appearance date, a matter of public record, to the defendant ex parte. No authority is cited for that proposition. The closest the Code of Judicial Conduct adopted in this state comes to addressing the question is Canon 3A(4):
“A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.”
My first blush impression is that communication to a defendant by the trial judge of a matter of public record, such as a trial date, is not embraced by that language. If a judge can speak directly to a party in open court when the party’s lawyer is present, such as when a judge says to a defendant, “You understand that you are to be here at 9:00 a.m. Monday morning,” can the judge not make that communication in writing with copy or duplicate original to the party’s lawyer? Can a judge communicate such a matter directly to a criminal defendant, when the state’s representative, the prosecutor, is not present? What ethical rule forbids the judge or his staff from communicating the trial date to a defendant?
DR 5-101 provides:
«* * * * *
“(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, * *
DR 5-102 (A) provides:
“If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, * * *.”