Murphy arrived late for his afternoon appointment with Finch…
Murphy arrived late for his afternoon appointment with Finch, his attorney, about a probate matter. Finch saw that Murphy had been drinking heavily. Murphy staggered as he was ushered into Finch’s office; Murphy’s breath smelled of alcohol. In a slurred voice, Murphy apologized for being late. He explained that he had a “few drinks” with some friends and “lost track” of time. During the interview, Murphy rambled incoherently, and Finch finally suggested that the appointment be rescheduled. As Murphy left the office, Finch offered to call an Uber, but Murphy insisted on driving. Finch watched with trepidation as Murphy drove away. Two blocks down the street Murphy collided with a parked car. He was not injured and fled the scene on foot. In his later trial for hit-and-run and drunk driving, Murphy is represented by another lawyer. The state of Hawaii calls Finch as a witness. Murphy’s attorney objects. In response, the state’s prosecutor cited Hawaii’s Code 503, which codifies its attorney-client privilege as follows: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client’s representative and the lawyer or the lawyer’s representative, or (2) between the lawyer and the lawyer’s representative. . . There is no privilege under this rule: (1) If the services of the lawyer were sought, obtained, or used to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; (2) As to a communication reflecting the client’s intent to commit a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another; . . . (4) As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer; If Murphy claims attorney-client privilege, can Finch, nonetheless, be required to testify?
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