STATE v. BRIEN III (2020)

Writ application granted. See per curiam.

Writ granted. Information concerning the competency and mental status of a defendant is not a confidential communication under LSA-C.E. art. 506(B) because it was not disclosed in furtherance of obtaining legal services, and the exclusion of such information would not advance the policy sought to be furthered by the attorney-client privilege because the information does not relate to the client's reason for seeking representation. See LSA-C.E. arts. 506 and 507; See also State v. Gage, 10-0237 (La. App. 1 Cir. 10/29/10), (unpublished), 2010 WL 4273080, writ denied, 10-2666 (La. 4/25/11), 62 So.3d 86. The State's writ application is granted. The ruling denying the State's motion to subpoena the defendant's previous attorney to testify regarding defendant's competency at the time the guilty plea was entered is reversed, the motion is granted, and this matter is remanded to the district court for further proceedings.

I agree with the majority that the motion to subpoena defendant's previous counsel should be granted under these circumstances in which defendant, represented by new counsel, is seeking to have his guilty plea vacated based upon competency issues. See La. C.E. art. 507. Unlike the majority, I would not broadly conclude that any and all information related to competency and mental status of a defendant is not subject to the attorney-client privilege. I believe that in some – but not all – circumstances, information regarding defendant's competency and mental capacity to proceed at trial may not be a confidential communication pursuant to the attorney-client privilege, as it may not relate to the reasons for which defendant sought representation. See State v. Gage, 2010-0237 (La. App. 1 Cir. 10/29/10), 2010 WL 4273080 (unpub'd opin.) (information concerning the competency and mental status of defendant prior to trial was not a confidential communication under state statute because it was not disclosed in furtherance of obtaining legal services), writ denied, 10-2666, 62 So.3d 86 (La. 4/25/11). I thus concur to emphasize my view that the extent to which the lawyer can testify is a specific question-by-question exercise in which defendant's present counsel can contemporaneously object as necessary. See La. C.E. art. 506 (providing that “the perceptions, observations, and the like, of the mental, emotional, or physical condition of the client in connection with [otherwise privileged communications pursuant to the attorney-client privilege]” are subject to the attorney-client privilege). For the foregoing reasons, I concur with the majority decision to grant the State's writ application, reverse the lower courts’ rulings and remand to the district court for issuance of the subpoena.

Crichton, J., concurs and assigns reasons.