State v. Gonzalez

The opinion of the court was delivered by

Sarah Sweet-McKinnon, the Chief Public Defender for the Reno County Public Defender s office, appeals a judgment finding her guilty of direct civil contempt and imposing a $1,000 per day coercive sanction. The contempt judgment and sanction arose out of McKinnon’s refusal to testify under subpoena by the State concerning a statement made by a former client, who expressed an intent to commit perjury in the prosecution of defendant Valerie Gonzalez. We transferred the appeal from the Court of Appeals on McKinnon’s motion pursuant to K.S.A. 20-3017.

Factual and Procedural Background

In early 2007, McKinnon was appointed to represent defendant Gonzalez on a charge of first-degree murder. McKinnon or one of the attorneys she supervised in the Reno County Public Defender’s Office represented another defendant on an unrelated case who was in custody at the Reno County Jail at the same time as Gonzalez. At some point, the other client informed her counsel that she intended to commit perjury in Gonzalez’ case. The public defender’s office filed a motion to withdraw from the other client’s case. The case against Gonzalez was dismissed in June 2007.

In January 2009, the State refiled the case against Gonzalez, and McKinnon was again appointed to represent her. The new complaint listed several endorsed witnesses who had not been fisted on the 2007 complaint, seven of which were former clients of the public defender’s office who had been housed at the Reno County Jail at the same time as Gonzalez in 2007. Among them was the former client who had expressed the intent to commit perjury in Gonzalez’ case.

Given the seven newly endorsed witnesses, McKinnon filed a motion to withdraw as Gonzalez’ attorney. The motion included the following statements:

“3. In all of the prior representations of the seven prior Public Defender clients, the movant has actual information by virtue of the prior representation that would *750 severely restrict the scope of cross-examination of these prosecution witnesses to avoid possible violation of the attorney client privileges of the state’s witnesses, including, but not limited to:

‘a. A statement by a former client of the Public Defender’s office that was made during representation that the prior client intended to commit perjury in Ms. [Gonzalez’] case, who is now a prosecution witness.’ ”

The district judge granted McKinnon’s motion to withdraw and appointed new counsel for Gonzalez.

The State then filed a motion to issue a subpoena for McKinnon to appear and testify at Gonzalez’ preliminary hearing. The motion was based on Kansas Rule of Professional Conduct (KRPC) Rule 3.8(e) (2009 Kan. Ct. R. Annot. 565), which prohibits a prosecutor from subpoenaing a lawyer in a criminal proceeding “to present evidence about a past or present client unless the prosecutor reasonably believes” the evidence is not protected by privilege, is essential to the successful completion of the prosecution, and “there is no other feasible alternative to obtain the information[.]” In its motion, the State requested that the district judge make findings on each of the KRPC 3.8(e) factors. The State explained it was using this unusual procedure out of an “abundance of caution and in light of the serious nature of causing a subpoena [to issue] for a criminal defense attomey[.]”

At the hearing on the motion, the State called Reno County Police Detective John Moore. Moore had conducted the investigation to determine which of the State’s endorsed witnesses might have made the statement referenced in McKinnon’s motion to withdraw. Moore’s testimony about those efforts is as follows:

“Q: [Prosecutor] And did you, as part of this investigation in the case, did you attempt to . . . locate and interview the witness endorsed by the State that could possibly be the witness that Ms. McKinnon indicated may intend to commit perjury?

“A: [Moore] Yes.

“Q: Okay. And when you interviewed these particular witnesses, how many total was there?

“A: Sixteen.

“Q: Okay. And were you able to, during the interviews of these witnesses, find any witness who would support or agree with the statement made by Ms. Mc-Kinnon in the motion?

*751 “A: No.

“Q: In fact did some of the witnesses indicate that they never even heard of Ms. McKinnon?

“A: I have at least five who had never heard of her.

“Q: Okay. And the ones who had heard of her, did those witnesses indicate whether or not they had ever discussed the Gonzalez case with Ms. McKinnon?

“A: Not one of the witnesses ever said that they had discussed this case with Ms. McKinnon.

“Q: Okay. Based on this particular investigation, were you able to find any support in the witnesses, or evidence to support the allegation that was made?

“A: No.

“Q: Did you have any other avenues in the investigation to undertake other than doing this particular interview of these witnesses? Did you have any other ways you could go to try to look into it?

“A: No, I’ve tried to locate each and every one of them. I did speak to each and every one of them.

“Q: Did you, in your own mind, have any other avenues of possible investigation other than what you already did?

“A: No.”

The district judge granted the State’s motion to issue the subpoena, ruling that each of the three KRPC 3.8(e) factors had been established.

On the first factor, the district court held that the information sought was not protected by the attorney-client privilege because the crime-fraud exception applied. See K.S.A. 60-426(b)(l) (attorney-client privilege does not apply to communication when sufficient evidence, aside from communication itself, establishes legal service sought, obtained to enable, aid commission, planning of crime).

On the second factor, the district judge held that the information sought was essential to the successful completion of the prosecution. Because the integrity of the prosecution could be affected if a prosecution witness had expressed the intent to commit perjury, and because the prosecutor needed to exercise ethical judgment on whether to present the witness, the judge believed it to be essential that the State know the witness’ identity.

The district judge also found the State had established the third factor — that there was no other feasible alternative to obtain the information — because of Moore’s testimony on his interviews.

*752 The State then issued and served McKinnon with a subpoena to appear and testify. The prosecutor informed McKinnon that he intended to ask her the following questions concerning the former client’s expressed intent to commit perjury in Gonzalez’ case: Who made the statement? When was it made? What words were used? What were the circumstances? In what form did she receive that communication?

McKinnon filed a motion to quash the subpoena, arguing that answering the prosecutor’s questions would violate her duty of client confidentiality under KRPC 1.6 (2009 Kan. Ct. R. Annot. 468) and KRPC 1.9 (2009 Kan. Ct. R. Annot. 490), exposing her to disciplinary action.

The district judge denied McKinnon’s motion to quash. The judge again held that KRPC 3.8(e) supported the subpoena, i.e., that no privilege existed under the first factor and that McKinnon had failed to offer sufficient evidence or argument to rebut the second and third factors. Further, the district judge rejected McKinnon’s arguments about her ethical duty of confidentiality, concluding that the rules did not prohibit McKinnon from revealing the information. Specifically, the judge noted that KRPC 1.6(b)(1) allows an attorney to reveal client confidences to prevent a client from committing a crime, and KRPC 1.6(b)(2) protects an attorney from disciplinary action for revealing confidential client information in compliance with a court order.

Immediately after the district judge’s ruling, the prosecutor called McKinnon to the witness stand. After a few preliminary questions, the prosecutor asked McKinnon who had made the statement set out in paragraph 3.a of her motion to withdraw. McKinnon refused to answer the question. The judge then ordered McKinnon to answer the question. She again refused. The judge found McKinnon in direct civil contempt of court and imposed a fine of $1,000 per day until the contempt was purged by Mc-Kinnon’s agreement to answer the question.

McKinnon posted an appeal bond to stay execution of the contempt order pending this appeal. She now raises three interlocking issues. First, she challenges the district judge’s decision that the information was not protected by attorney-client privilege because *753 of the crime-fraud exception under K.S.A. 60-426(b)(l). Second, if we determine that the district judge’s decision on applicability of the attorney-client privilege was erroneous, McKinnon argues, the contempt judgment cannot stand. Third, even if the contempt stands, McKinnon asserts, the coercive sanction is excessive.

The State responds that the district judge properly applied the crime-fraud exception to the attorney-client privilege and that McKinnon was properly ordered to answer the question seeking the name of her former client because a client’s identity does not qualify as a privileged communication. The State also argues that the contempt judgment should stand even if the district court’s decision on privilege was in error, as refusal to comply with a court order is contemptuous even if it is later determined that the order was erroneous. Last, the State contends that the sanction imposed was not an abuse of discretion.

Analysis

To begin our analysis, we must address jurisdiction.

In this appeal from the order finding her in contempt and imposing a sanction, McKinnon’s arguments also are directed at the propriety of underlying rulings on the issuance of the subpoena and the denial of the motion to quash. Although the parties have not questioned our jurisdiction to address the validity of the orders that underlie the contempt judgment, it is our duty to consider the presence or absence of jurisdiction on our own initiative. See Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007) (subject matter jurisdiction may be raised at any time, even on court’s own motion); State v. Phinney, 280 Kan. 394, 398, 122 P.3d 356 (2005) (“The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative.”).

K.S.A. 20-1205 and K.S.A. 60-2102(a)(4) provide jurisdiction to address the contempt judgment as well as the underlying decisions on the issuance of the subpoena and the motion to quash. K.S.A. 20-1205 provides the right to appeal from a contempt judgment and specifically states that such an appeal is to be taken “in the same manner as is provided by law in civil cases.” The applicable civil appeal statute, K.S.A. 60-2102(a)(4), expressly provides that *754 in an appeal from a final decision, “any act or ruling from the beginning of the proceedings shall be reviewable.” In addition, the United States Supreme Court has made clear that an order underlying a civil contempt judgment is reviewable on appeal of the contempt. See United States v. Mine Workers, 330 U.S. 258, 294-95, 91 L. Ed. 884, 67 S. Ct. 677 (1947) (unlike criminal contempt, validity of disobeyed order may be reviewed in civil contempt context; right to remedial relief falls when the underlying order is proved to have been in error); compare State v. Alston, 256 Kan. 571, 584-86, 887 P.2d 681 (1994) (collateral bar rule prohibits review of the validity of underlying order in criminal contempt appeal, subject to exceptions).

Several standards of review require consideration in resolving this case.

An appellate court reviews a determination that conduct is contemptuous under a de novo standard; contempt sanctions are reviewed for abuse of discretion. State v. Jenkins, 263 Kan. 351, 356, 950 P.2d 1338 (1997); see also In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002) (same).

A district court judge’s decision on a motion to quash a subpoena calling for disclosure of privileged information is governed generally by K.S.A. 2009 Supp. 60-245(c)(3)(A)(iii), which provides: “On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it. . . requires disclosure of privileged or other protected matter and no exception or waiver applies.” Another subsection of the statute provides that a court shall quash or modify a subpoena that “subjects a person to undue burden.” K.S.A. 2009 Supp. 60-245(c)(3)(A)(iv). A further subsection, K.S.A. 2009 Supp. 60-245(c)(3)(B)(in), is worded more permissively, saying the court “may” quash or modify a subpoena under certain circumstances not present here, or “may” order appearance “only upon specified conditions” if “the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated.”

*755 We have previously reviewed district court decisions on motions to quash subpoenas for abuse of discretion, despite the statute’s mixed use of “shall” and “may.” See Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 704, 952 P.2d 1286 (1998) (“Control of discovery is entrusted to the sound discretion of the trial court”; decision quashing subpoena duces tecum reviewed for abuse of discretion); In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 256, 891 P.2d 422 (1995) (abuse of discretion standard applied in reviewing motion to quash an administrative subpoena); In re Pennington, 224 Kan. 573, 577, 581 P.2d 812 (1978), cert. denied 440 U.S. 929 (1979) (abuse of discretion standard applied in reviewing district court’s denial of news reporter’s motion to quash); In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 480, 932 P.2d 1023 (1997) (decision on motion to quash inquisition subpoena reviewed for abuse of discretion).

Discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006). Under this standard, an appellate court will not disturb a discretionary decision unless no reasonable person would have taken the view adopted by the district court. See Vorhees v. Baltazar, 283 Kan. at 393.

Still, even under the deferential abuse of discretion standard of review, an appellate court has unlimited review of legal conclusions upon which a district court judge’s discretionary decision is based. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.3d 1170 (2000). Because “ ‘[a] district court by definition abuses its discretion when it malees an error of law. . . [t]he abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” Kuhn, 270 Kan at 456 (quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]); see also State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007) (district judge’s discretionaiy decision protected under abuse of discretion standard “if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and taires into account the applicable legal standards”; what constitutes abuse of discretion *756 necessarily varies “depending upon the character of the question presented for determination”).

Moreover, even if a decision is entrusted to the discretion of a district court judge, and he or she correctly understands and applies the controlling legal standards, the facts upon which the discretionary decision must depend may still be challenged on appeal as unsupported by substantial competent evidence in the record. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990) (legal conclusions and fact findings upon which discretionary decision based reviewable for abuse of discretion; district court necessarily abuses its discretion if ruling based on an “erroneous view of the law or on a clearly erroneous assessment of the evidence”); cf. Saucedo v. Winger, 252 Kan. 718, Syl. ¶ 4, 850 P.2d 908 (1993) (“A decision which is contrary to the evidence or the law is sometimes referred to as an abuse of discretion, but it is nothing more than an erroneous decision or a judgment rendered in violation of law.”); see also Flautt & Mann v. Council of City of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) (because abuse of discretion may connote error of law, error of fact, or error in substance, form of trial court’s order, review consists of three parts: “(1) whether the factual basis of the decision is supported by sufficient evidence; (2) whether the trial court has correctly identified and properly applied the applicable legal principles; and (3) whether the trial court’s decision is within the range of acceptable alternatives”).

In Kansas, a district court’s factual findings are reviewed under the substantial competent evidence standard. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007); State v. Jones, 279 Kan. 71, 77, 106 P.3d 1 (2005). In federal court, Fed. R. Civ. Proc. 52(a)(6) requires a “clearly erroneous” standard of review for factual findings. The Kansas substantial competent evidence standard and its federal counterpart are very similar to the abuse of discretion standard. All three provide a great deal of deference to a district court’s decision made within a zone of reasonableness. See Cooter & Gell, 496 U.S. at 400-01 (when an appellate court reviews a district court’s fact findings, the abuse of discretion standard and the clearly erroneous standard are “indistinguishable” *757 as both protect district court determinations that fall “within a broad range of permissible conclusions”).

A district court abuses its discretion only when no reasonable person would take the view adopted by the district court. State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003). Similarly, substantial competent evidence is that which

“possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” (Emphases added.) Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 2, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007).

In addition, as we have held, “[¡Judicial discretion will vary depending upon tire character of the question presented for determination.” State v. Shopteese, 283 Kan. at 340. When a discretionary decision requires fact-based determinations, a district court abuses its discretion when the decision is based on factual determinations not supported by the evidence.

Finally, a de novo standard comes into play in this case on the question of privilege. If the underlying facts concerning the applicability of a privilege are not in dispute, appellate review is plenary. See State v. Jones, 287 Kan. 547, 554, 198 P.3d 756 (2008) (citing Butler v. HCA Health Svcs. of Kansas, Inc., 21 Kan. App. 2d 403, 436-37, 6 P.3d 871 [1999]) (when underlying facts undisputed, existence of attorney-client privilege reviewed de novo).

General Distinction Between Privilege Law and Attorney Ethics Rules on Client Confidences

The parties have argued both the attorney-client privilege and the various disciplinary rules concerning an attorney’s ethical duties with respect to client confidences and, at times, appear to confuse the two. Because there are fundamental and significant differences between these lines of authority and their applicability, it is necessary that we first clarify that we face one and not the other here.

A privilege is a rule of evidence that allows a person “to shield [a] confidential communication or information from compelled disclosure during litigation.” Imwinkelried, The New Wigmore: Evi- *758 dentiary Privileges § 1.1, p. 2 (2d ed. 2009). In Kansas, the attorney-client privilege is statutory. It is found in the code of evidence at K.S.A. 60-426, which reads in pertinent part:

“(a) . . . [E]xcept as otherwise provided by subsection (b) of this section communications found by the judge to have between lawyer and his or her client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege ... (2) to prevent his or her lawyer from disclosing it. . . . The privilege may be claimed by the client in person or by his or her lawyer ....

“(b) .... Such privileges shall not extend (1) to a communication if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the legal service was sought or obtained in order to enable or aid the commission or planning of a crime or a tort. . . .” K.S.A. 60-426.

This statute protects from compelled disclosure certain confidential communications made between an attorney and client in the course of their professional relationship. The privilege applies narrowly because, like all privileges, it operates to deprive the fact-finder of otherwise relevant information. In re Bryan, 275 Kan. 202, 222, 61 P.3d 641 (2003) (citing State ex rel. Stovall v. Meneley, 271 Kan. 355, 373, 22 P.3d 124 [2001]).

In contrast, an attorney’s ethical duty of client confidentiality arises under the Kansas Rules of Professional Conduct and is part of a system of professional ethical standards designed to “provide guidance to lawyers and ... a structure for regulating conduct through disciplinary agencies.” Supreme Court Rule 226, Scope [20] (2009 Kan. Ct. R. Annot. 405). A violation of an ethical rule “should not itself give rise to a cause of action against a lawyer” or “necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation.” Supreme Court Rule 226, Scope [20]; see also OMI Holdings, Inc. v. Howell, 260 Kan. 305, 325, 918 P.2d 1274 (1996) (discussing Supreme Court Rule 226; ethics rules do not impose legal duty on attorneys). In contrast to the attorney-client privilege, which is a rule of evidence and applies only when the attorney “may be called as a witness or otherwise required to produce evidence concerning a client[,]” the attorney’s ethical duty of confidentiality under the disciplinary rules “applies in all situations other than those where evidence is sought from the lawyer through compulsion of law.” (Emphasis *759 added.) Comment [5] to KRPC 1.6 (2009 Kan. Ct. R. Annot. 469). Further, in contrast to the narrow scope of the attorney-client privilege, the ethical duty of client confidentiality applies broadly to all information related to representation of a client. KRPC 1.6(a); Comment [5] (2009 Kan. Ct. R. Annot. 468-69). It is expansive because the cloak of confidentiality is intended to “facilitate the full development of facts essential to proper representation of the client[.]” Comments [2] and [4] to KRPC 1.6 (2009 Kan. Ct. R. Annot. 469).

There is some overlap between the ethical duty of confidentiality and the attorney-client privilege. By definition, all communications protected by the attorney-client privilege will be confidential and covered by the ethical duty. K.S.A. 60-426(a) (communication must have been made in professional confidence). That overlap is the reason why the ethical duty of confidentiality requires an attorney to invoke the attorney-client privilege when it is applicable. Comment [13] to KRPC 1.6 (2009 Kan. Ct. R. Annot. 470). But not all client confidences inevitably must be protected through invocation of attorney-client privilege.

This is, at base, a privilege case. McKinnon invoked die attorney-client privilege to prevent her compelled disclosure of what she believed to be confidential client information. Such compulsion of her testimony was and is governed by K.S.A. 60-426 and any court decisions interpreting, construing, and/or applying it.

This is one such decision. The attorney ethics rules on client confidences provide important context to our analysis of the contours of K.S.A. 60-426 attorney-client privilege when a prosecutor attempts to compel a criminal defense attorney to speak, but they do not control it. As the following subsections of our analysis illustrate, another attorney ethical rule, KRPC 3.8(e) (2009 Kan. Ct. R. Annot. 564), does provide an essential overlay to the privilege statute and K.S.A. 2009 Supp. 60-245(c)(3) on motions to quash in situations of this type. It requires certain procedures and proof when a prosecutor seeks a subpoena directed to criminal defense counsel and when the subject of the subpoena seeks to quash such a subpoena.

*760 KS.A. 60-426 Attorney-Client Privilege and KRPC 3.8(e)

Having addressed the general distinction between privilege law and attorney ethics rules on client confidences, we now turn to the extraordinary nature of the situation in this case and the applicable attorney ethics rule, i.e., a prosecutor’s issuance of a subpoena to compel testimony about a former client from a defense lawyer in a criminal proceeding and KRPC 3.8(e). The prosecutor invoked KRPC 3.8(e) to obtain issuance of the subpoena to McKinnon. He did so with good reason. KRPC 3.8(e) speaks directly to the prosecutor’s ethical obligation in such a mercifully rare scenario, and it prohibits a prosecutor from subpoenaing a defense lawyer in a

“criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information.” 2009 Kan. Ct. R. Annot. at 565.

At least three underlying principles are evident in the language of this rule.

First, the prosecutor’s role in our criminal justice system is unique, and it carries concomitant responsibilities. The prosecutor is a representative of the government in an adversary criminal proceeding, which means he or she must be held to a standard not expected of attorneys who represent “ordinary” parties to litigation. Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935). As we stated in State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000):

“A prosecutor is a servant of the law and a representative of the people of Kansas. . . . Sixty-five years ago the United States Supreme Court said that the prosecutor represents

‘a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ Berger v. United States, 295 U.S. [at] 88.” 268 Kan. at 510.

*761 The comments to KRPC 3.8, Comment [1] (2009 Kan. Ct. R. An-not. 565) make this explicit: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”

Second, Rule 3.8(e)(l)’s near-total prohibition on subpoenas directed to an attorney to obtain evidence protected by privilege reinforces the indispensability of attorney-client privilege in the effective and efficient functioning of the administration of justice. The attorney-client privilege is the oldest of the common-law privileges and exists “to encourage full and frank communication between attorneys and their clients” in order to “promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981); see also State ex rel. Stovall v. Meneley, 271 Kan. at 373 (privilege fosters candid communication); Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg Grain Co., 250 Kan. 54, Syl. ¶ 10, 824 P.2d 933 (1992) (privilege “should not be set aside lightly”).

Third, the limitations that KRPC 3.8(e)(2) and (3) place on the power to compel an attorney to provide nonprivileged evidence about a client “to those situations in which there is a genuine need to intrude in the client-lawyer relationship” communicate a general unwillingness to intrude. See Comment [4] to KRPC 3.8 (2009 Kan. Ct. R. Annot. 566). These limitations are based on “the generally accepted principle that the attorney-client relationship should not be disturbed without cause.” United States v. Colorado Supreme Court, 189 F.3d 1281, 1288 (10th Cir. 1999) (construing Colorado’s equivalent to KRPC 3.8[e]). In Colorado Supreme Court, the Tenth Circuit explained the bases for the special protections the law affords the attorney-client relationship:

“The importance of the attorney-client relationship is evidenced by the various privileges which protect it. The attorney-client privilege is ‘one of the oldest recognized privileges for confidential communication known to the common law’ and works to foster the underlying relationship. Upjohn Co. v. United States, 449 U.S. ... [at] 389 ...; see also Swidler & Berlin, 524 U.S. 399, 141 L. Ed. 2d 379, 118 S. Ct. 2081, 2084 (1998). Similarly, the work product privilege fosters

‘the general policy against invading the privacy of an attorney’s course of preparation [which] is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade *762 that privacy to establish adequate reasons to justify production through a subpoena or court order.’

Hickman v. Taylor, 329 U.S. 495, 511, 91 L. Ed. 451, 67 S. Ct. 385 (1947). The legal profession’s ‘ethical obligation’ of confidentiality is a corollary to these privileges. See Upjohn Co., 449 U.S. at 391, 101 S. Ct. 677 (citing ABA code of Professional Responsibility, 4-1).” United States v. Colorado Supreme Court, 189 F.3d at 1287.

We also note that discovery limitations imposed on parties seeking attorney work product are similar to the need-based limitations of KRPC 3.8(e)(2) and (3). The work product rule, codified at K.S.A. 60-226(b)(4), permits discovery of attorney work product only upon “ ‘ “a showing that the party seeking discovery has a substantial need for the material and cannot without undue hardship obtain the substantial equivalent by other means.” ’ ” Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, 218, 50 P.3d 66 (2002) (quoting Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 426,