Argued and submitted November 8, 2013.
CC 12C11135. Original proceeding in mandamus.[*]
Jesse Merrithew, Levi Merrithew Horst LLP, Portland, argued the cause and filed the brief for relator. With him on the brief were Michael Curtis and Kathleen Correll.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for adverse party. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Timothy R. Volpert, Davis Wright Tremaine LLP, Portland, filed the brief for amicus curiae American Civil Liberties Union of Oregon, Inc. With him on the brief were Blake J. Robinson and Kevin Diaz, Legal Director, ACLU Foundation of Oregon, Inc.
Kenneth A. Kreuscher, Portland Law Collective, LLP, Portland, filed the brief for amicus curiae Oregon Criminal Defense Lawyers Association.
[355 Or. 545] BALDWIN, J.
This is the second of two cases that this court decides today regarding the interpretation and application of OEC 503(4)(c), the breach-of-duty exception to the lawyer-client privilege, OEC 503(2). In Longo v. Premo, 355 Or. 525, 326 P.3d 1152 (2014), we construed OEC 503(4)(c) to be a limited exception permitting disclosures of confidential information only as necessary for a lawyer to defend against allegations of breach of duty, and we directed the issuance of a peremptory writ of mandamus requiring a post-conviction court to issue a protective order. For the reasons that follow, we similarly grant mandamus relief to petitioner in this case.
In this original proceeding, relator (petitioner), who is the petitioner in the underlying post-conviction case, seeks a writ of mandamus to compel the Marion County Circuit Court judge presiding over the case (the post-conviction court) to issue a protective order with respect to documents and communications subject to the lawyer-client privilege. Petitioner's motion for a proposed protective order sought to prevent adverse party (the state), who is the superintendent of the Oregon State Penitentiary and the defendant in the underlying post-conviction case, from disclosing such information to third parties unrelated to the post-conviction case.
Petitioner was convicted in Marion County Circuit Court of two counts of aggravated murder and was sentenced to death. This court affirmed his judgment of conviction and capital sentence on direct review in State v. Brumwell, 350 Or. 93, 249 P.3d 965 (2011), cert den,
__ U.S. __, 132 S.Ct. 1028, 181 L.Ed.2d 757 (2012). Petitioner subsequently filed a petition for post-conviction relief, asserting that his court-appointed counsel in his criminal trial had provided ineffective assistance in violation of his constitutional
right to counsel under Article I, section 11, of the Oregon Constitution  [355 Or. 546] and the Sixth Amendment to the United States Constitution.
In the post-conviction proceeding, petitioner filed a motion for a protective order with respect to materials subject to the lawyer-client privilege, OEC 503(2). Petitioner more specifically sought an order protecting any privileged information that he, his former trial attorneys, and those working with his former attorneys would provide upon deposition. He sought to preclude use of such privileged materials " for any purpose other than litigating the instant proceeding" and to bar any party from " turning them over to any other persons or offices, including, in particular, law enforcement or prosecutorial agencies involved in" prosecuting his underlying criminal case. Petitioner asserted that, ...