Ex Parte McDonough

Petitioner, an attorney at law, was retained by one Wooley and one Gorman to represent them as their attorney in connection with any and all investigations that were being made or that might be made as to their participation in certain alleged election frauds and violations of the election laws in Alameda County, claimed to have been committed in connection with the general primary election of August 25, 1914, and he has ever since been acting as their attorney in pursuance of such employment. Subsequent to such employment one Higgins, one Gale, and one Wiles were indicted by the grand jury of that county, charged with participation in said crimes alleged to have been committed in connection with such election. Petitioner appeared as the attorney of each of such men, and has ever since acted for them, having admittedly been employed to represent them. He deposited ten thousand dollars cash bail for the release of Higgins. Subsequently the grand jury of Alameda County, in the further investigation of said frauds and crimes, procured the attendance of petitioner as a witness, and while he has finally answered many questions put to him, he has steadily refused to answer such questions as these, viz.:

Q. Who employed you to represent Higgins et al.?

Q. Did Jack Woolley or Grant Gorman employ you to represent Higgins et al.?

Q. Did Jack Woolley or Grant Gorman furnish the $10,000 which you deposited as bail for Higgins?

Q. Who furnished the $10,000 deposited as bail for Higgins?

For his refusal to answer these questions after being ordered to do so by the superior court, petitioner has been adjudged guilty of contempt of court and ordered confined in the county jail of Alameda County until he does answer them.

Admittedly the purpose of the questions is to obtain evidence against Woolley and Gorman, by which they can be implicated as principals in the commission of the crimes for which Higgins et al. have been indicted, and to implicate them in the commission of the election frauds.

The court below found that all the allegations of petitioner's affidavits filed in the contempt proceedings are true. These affidavits averred substantially, among other things, the following: Each and every communication, either verbal, written, or by signs, which he had received from either Woolley or Gorman in any way, relating to or concerning or about the said frauds, or the charges on which Higgins et al. were indicted, or with reference to the defense or bail of either said Higgins or said Wiles or said Gale, were received by him as the attorney for said Woolley and as the attorney for said Gorman, and not otherwise. That the ten thousand dollars deposited as bail for Higgins was delivered to him by a client of his, which client had previously employed him to represent him, said client, in all investigations which were being or might be made of said client's conduct in connection with said alleged election frauds and in connection with Higgins et al., and to represent him in all matters and things growing out of the alleged election frauds in which it was or might be claimed that said client was implicated, and in any proceedings whereby it might be sought to ascertain whether the said client was connected with the commission of these crimes or not. That clients employed him to represent Higgins et al. and that these clients had previously employed him to represent them in connection with all charges which might be brought against them in connection with said frauds, and in reference to any claim that might be made that these clients had in any way been connected with these frauds, and that it was in connection with such employment by said clients to act as their attorney, and not otherwise, that these clients employed him to represent Higgins et al. That neither the unnamed clients nor Woolley nor Gorman consented to his testifying.

The question presented is whether the employment of petitioner by his clients to defend Higgins et al. and the furnishing by his clients of the sum of ten thousand dollars to bail out Higgins were matters concerning which he cannot testify without the consent of such clients. Section 1881 of the Code of Civil Procedure provides: "There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: . . . 2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment."

However desirable it may be to obtain proofs sufficient to insure the conviction of all persons who commit crimes of the character of those under investigation, and it will readily be conceded that it is most desirable, such proofs may not be obtained from those who are forbidden by our law to give them. In regard to the obligations of an attorney to his client in this respect, our statutes are very explicit, making it his duty "to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client" (Code Civ. Proc., sec. 282, subd. 5), and, in the section above quoted, prohibiting his examination as a witness, as therein stated. As said in People v.Atkinson, 40 Cal. 284: "On principles of public policy, communications from a client to his attorney touching the subject-matter under investigation are privileged, and will not be allowed to be disclosed by the attorney, even though he be willing to do so."

It is obvious, of course, that the sole purpose of the questions was to obtain from petitioner proof of admissions by a client to him, tending in some degree to show complicity on his part in the alleged crimes for which Higgins et al. had been indicted, made while he was acting as the attorney of such client in the very matter of said alleged crimes. Under the circumstances shown here, the questions could have no other purpose and the answers no other effect. It will at once be conceded that if this client had said to such attorney that he had aided and abetted Higgins et al. in the commission of the acts for which they had been indicted, under such circumstances of course as to preclude the idea that his statement was not confidential, the attorney could not be examined as a witness regarding such statement, in view of our law, without the consent of the client. To our minds there is absolutely no distinction in principle between such a case and that presented by the questions which it is here sought to compel petitioner to answer. The only difference is in the weight of the testimony as going to show such complicity on the part of the client, in the one case being a direct admission of such complicity, and in the other being an admission of interest from which, in the light of other circumstances, such complicity might reasonably be inferred.

It has been said that the word "Communication" as used in such provisions as our section 1881 of the Code of Civil Procedure, is not to be restricted to mere words uttered by the client, that looking back at the reason of the privilege it is seen to secure the client's freedom of mind in committing his affairs to the attorney's knowledge, and that acts, as well as words, may fall within the privilege. (See Wigmore on Evidence, sec. 2306; State v. Dawson, 90 Mo. 149, [1 S.W. 827; Holden v. State, 44 Tex.Crim. 382, [71 S.W. 600].) These statements, we are satisfied, are in accord with the reason of the rule, and we cannot doubt their correctness. The questions here called for "communications" from petitioner's client or clients to him. In view of the facts found by the lower court, it cannot here be doubted either that whatever information was conveyed to petitioner thereby, came to him from his clients in the ordinary course of his professional employment as such clients' attorney, or that there was nothing in the nature of the transaction or in matters extraneous thereto to rebut the presumption that the communications were confidential. (See Hager v. Schindler, 29 Cal. 67.) And there was nothing in the facts to warrant a conclusion that the evidence proposed to be thus adduced bore at all upon any intention or arrangement on the part of the client to perform some illegal act in the future, or the then actual doing of any such illegal act, as to which, it may be conceded, the rule would not apply, however injurious to the client the evidence might be. (SeeUnited States v. Lee, 107 Fed. 702.) There was nothing illegal or contrary to public policy in what it was proposed to show petitioner's clients had done in the way of employing petitioner to defend Higgins et al., or in furnishing the money to be used for the purpose of obtaining the release of Higgins on bail. As before suggested, it was simply being attempted to show by petitioner's testimony that the clients had made to him admissions from which, in the light of other circumstances, their guilt in the matter as to which petitioner was defending them, might be inferred.

We are unable to perceive any sufficient ground upon which it may be held that petitioner may be compelled, without his client's consent, to answer any of these questions. Counsel for the people rely, as to the questions directed to the identity of the persons who employed petitioner to defend Higgins et al., upon what has frequently been said to the effect that an attorney is not privileged from disclosing by whom he was employed. Ordinarily this is doubtless true. As is said by Wigmore in his work on evidence (sec. 2313), the identity of the attorney's client, or the name of the real party in interest, will seldom be a matter that can be held, under the law, to have been communicated in confidence. The mere fact of retaining an attorney to act as such is not ordinarily a matter occurring in the course of the confidential relation of attorney and client, but is something that precedes the establishment of that relation. (Eickman v. Troll, 29 Minn. 124, [12 N.W. 347].) Frequently, too, the fact of employment of an attorney by a certain person for a specific purpose is an element of the cause of action being asserted against such person in the matter under investigation. This is illustrated in the case of White v. State,86 Ala. 69, [5 South, 674], and Stanley v. Stanley, 27 Wn. 570, [68 P. 187], cited by counsel for the people. In the first of these cases, White was charged with making a false claim against a railroad company for lost baggage, and evidence of an attorney, employed to present the claim and who presented it, as to his employment, was held admissible. The other case was an action for damages by a wife against her husband's parents for alienation of her husband's affection, and the testimony of an attorney that he was employed by the parents to bring an action for divorce on the part of the husband against the wife was held to be proper. As Mr. Wigmore says, much ought to depend on the circumstances of each case. The matter was discussed in In re Shawmut Min. Co.,94 App. Div. 156, [87 N.Y. Supp. 1059], and it was substantially said that many cases holding that an attorney may be compelled to testify to his representation of some person as an attorney are based and decided upon the principle that the employment and communications were made for the purpose of enabling the attorney to perform acts which involved the rights of third parties, whoacted upon the faith of his attorneyship, and that under such circumstances it was entirely proper that the fact of attorneyship should be established. Of course, we have nothing of this kind here. The case of United States v. Lee, 107 Fed. 702, perhaps comes nearer to sustaining the claim of the attorneys for the people than any other case cited, but even that case is distinguishable in a material way. The grand jury was investigating the matter of the disappearance of Lee, who had become a fugitive from justice while under indictment and awaiting trial, and his attorney, who had appeared for him on the indictment, was compelled to testify as to the name of the person who had employed him to defend Lee, it appearing that some one other than Lee himself had employed him. As suggested, the grand jury was investigating the matter of his disappearance, and not the question of his guilt of the charge against him — was endeavoring to ascertain who, if anybody, was guilty of complicity in the flight of Lee, an illegal act occurring after the commission of the crime charged against Lee. Even as to this the district judge said that a question asked the attorney relative to the interest which his client had in the defense of Lee might involve a confidential communication from his client to himself and might therefore be improper. He further said: "If the client did have an interest and stated it to his counsel, the latter is not called upon to reveal it." But the judge thought that counsel could not state that he gained the information called for from a client and then leave that client mysterious, unknown and undefined, and that the court had a right to know that the client was actual flesh and blood, and "to demand identification for the purpose at least oftesting the statement which has been made by the attorney who places before him the shield of this privilege." Of course, in view of the facts found by the trial court here, no such reason exists in this case. It is clear enough that none of the various reasons advanced in the authorities for the disclosure of the name of the client who employed the attorney is applicable here, in view of the circumstances of this case. We cannot escape the conclusion that, in view of the findings of the lower court, to require the petitioner to answer any of the questions as to the name of the client who employed him to defend Higgins et al. would be to require him to divulge a confidential communication made to him by a client in the course of his employment — a communication tending to show, and, under the circumstances of this case, material only for the purpose of showing, an acknowledgment of guilt on the part of such client of the very offenses on account of which the attorney had been employed to defend him.

What we have said is also true as to the questions relative to the furnishing of the money deposited as bail for Higgins.

The petitioner is discharged from custody.

Sloss, J., Lorigan, J., Melvin, J., Henshaw, J., and Shaw, J., concurred.