23 App. D.C. 456 | D.C. Cir. | 1904
Lead Opinion
delivered the opinion of the Court r
It is first objected, on the part of the appellant, that there was error in the issuance of the writ in making it returnable before Justice Wright instead of the supreme court of the District to-which the application for the writ W'as made. This objection is
It is quite obvious, we think, that the term “justice” is not intended to be synonymous with “court,” nor.“court” with the term “justice,” as used in; these sections of the Code. While clothed with the same power, the court, and, the justice are authorized tos act separately and distinct from, each other, in matter of habeas,corpus, as under the English habeas corpus act of 31 Car, II. chap 2. Hence, when an application is, made for the writ of habeas corpus, either to the court, or to a justice thereof, the return is-required, by the, terms of the statute,; to be made, not to the court simply, but before said court or justice by whose order the writ was issued. It was certainly never intended that a prisoner applying to the court composed of several judges, any .one of whom, not disqualified, being competent to act as and for the court, should be compellable to have the question of the legality of his imprisonment decided and disposed of by one of the justices of -the court, by whose predetermination and decision-the, party had been, upon full consideration, committed to and detained in prison. It is manifest, if the applica
But this error in the issuance and return to the writ does not reach the vital and important question intended to be presented by this appeal. At most it would require the quashing of the writ and return, but that would leave the question of the legality of the imprisonment of the appellant undetermined.
The question, however, of the legality of the commitment and detention of the appellant, as for contempt of court, or because of his failure to answer the question propounded to him and required by the court to be answered, is presented by the appeal; and the appellant contends that, upon the facts as disclosed in the case, there was no sufficient warrant or authority for the commitment to and detention of the appellant in prison; that there was no contempt of court committed by him, and that he was in law fully justified in declining to answer the question which he was by the court required to answer; and therefore the order and commitment by the court, whereby the appellant was
It is a settled principle that the writ of habeas corpus cannot be made to serve the purpose of a writ of error or of an appeal; and that under such writ mere errors or irregularities in the proceedings under which the applicant for the writ was imprisoned will furnish no ground for review and reversal of such proceedings. But where the commitment was made without jurisdiction of the court, or want of legal authority therefor, as in the case of a commitment for contempt of court where it is shown that there was no ground for the contempt charged, there, and in like cases, the court will, by writ of’ habeas corpus, discharge the prisoner. This is an established principle by a series of cases, in both English and American courts; and it finds clear and definite expression in several recent decisions of the Supreme Court of the United States. As for instance, in the case of Ex parte Fisk, 118 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724, in an opinion delivered by Mr. Justice Miller, after stating the general principle that the exercise of the power of punishment for contempts of their orders, by courts of general jurisdiction, is not subject to review by writ of error or appeal, or by writ of habeas corpus, that learned justice was careful to qualify this general principle by proceeding to declare that —
“When, however, a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void. It is well settled now, * * * that when the proceeding for contempt in such a case results in imprisonment, this court will, by its writ of habeas corpus, discharge the prisoner.”
The same principle has been laid down in subsequent cases, as the settled law. Re Ayers, 123 U. S. 443, 485, 31 L. ed. 216, 223, 8 Sup. Ct. Rep. 164.
In the case of Holman v. Austin, 34 Tex. 668, the question
“If the question be Improperif the court interrogate a witness about a matter over which it has no jurisdiction and about which it has no right to inquire, the refusal of the witness to answer the interrogatory is no contempt of court, and any order or decision which punishes the refusal to answer as a contempt, is void. * * * To require a witness to submit to answer an illegal and improper question must be regarded as the personal command of the judge, rather than the judicial order of the court.”
The cases all agree that an act of a witness in refusing to answer a question propounded to him, if it be his right to decline to answer, will not become a criminal contempt by being adjudged so. People ex rel. Hackley v. Kelly, 24 N. Y. 75.
The question then is whether the fact sought to be elicited from the appellant by the question propounded to him on cross-examination, and which he refused to answer, was of such privileged character as justified the witness in refusing to answer the same.
The appellant is an attorney at law, and a member of the bar of the supreme court of the District of Columbia. In taking the memoranda for the preparation of the will of the party whose name he refused to disclose, he was certainly acting in his character of attorney, and the relation of client and attorney existed, if his statement be truthful. Was he bound to disclose the name of his client, under the circumstances related by him ? The law upon this subject is well settled, and admits of no question or doubt.
“If, touching matters that come within tbe ordinary scope of professional employment, they [legal advisers] receive a communication in their professional capacity, either from a client, or on bis account and for bis benefit in tbe transaction of bis business, or, wbicb amounts to the same thing, if they commit to paper, in tbe course of their employment on bis behalf, matters wbicb they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce tbe papers in any court of law or equity, either as party or as witness.” 1 Greenl. Ev. 12th ed. §§ 236-244; 1 Taylor, Ev. 6th ed. pp. 812-816; and the cases cited by tbe authors.
It is true, the strict enforcement of tbe rule may, in some eases, operate to tbe exclusion of truth; but tbat does not justify the breaking down of a great principle of protection founded m wisdom and public policy, and necessary to be observed in tbe
In this case, it was competent to show by independent evidence that the witness, claiming and insisting upon his privilege,, had in fact no such client as he pretended to have, and thus, by’ such proof, to impeach the credibility of the witness. But not by compelling' the witness against his claim of privilege to make; the disclosure. For by making the disclosure of the name of his client he would certainly have committed a breach of professional confidence, and violated a privilege of his client, supposing him to have one, as he had stated in his testimony.
It has been held, in some cases, that an attorney may be required to disclose the name of the person by whom he was retained, in order to let in the confessions or admissions of the real party in interest; the character in which his client employed him, whether that of an executor or trustee, or on his private account. But this is not a principle of universal application, and manifestly it has no application to this case. A question somewhat of this nature arose in the case of Chirac v. Reinicker, 11 Wheat 280, 285, 6 L. ed. 474, 475. It was there held that counsel could not disclose whether they were employed to conduct an ejectment suit for their client as landlord of the premises. The real dispute in that case was, whether the question put to counsel did involve the disclosure of professional confidence.' If the question had stopped at the inquiry, says the' court, “whether the witnesses [the counsel] were employed by’ Reinicker as counsel, to conduct the ejectment suit, it would deserve consideration, whether it could be universally affirmed,that it involved any breach of professional confidence. The fact’ is preliminary in its own nature, and establishes only the existence of the relation of client and counsel, and, therefore, might: not necessarily involve the disclosure of any communication arising from that relation after it was created. But the question;
In this case, the question put to the witness and which he refused to answer, by declining to give the name of the party from whom he took the memoranda for preparing the will, involved a breach of professional confidence, which the witness had expressly pledged himself not to violate, according to his testimony. The fact, however, of his being employed to take the memoranda for preparing the will was fully within the privilege of confidential communications as between client and attorney, lew people who find it necessary to employ an attorney to prepare a will desire the fact to be publicly known. It is essentially a confidential and privileged communication; and few attorneys would be employed to draft wills if it were understood that they were at liberty to disclose the fact to any person, or upon any occasion, when disclosure might be desired. In this case, the name of the person from whom the memoranda were taken was, at most, but a collateral fact; but the disclosure being protected by the privilege of the client, the attorney was not, upon any principle, compellable to disclose the name.' 1 Green! Ev. § 448. By the terms of the commitment, the appellant could not relieve himself from imprisonment except by violating the privilege of his client; and this he could not be compelled to <do.
Upon the case as presented, we are of opinion that the appellant was without lawful or sufficient cause committed to prison, and that his detention is wrongful and without warrant of law. and, consequently, he is entitled to be discharged. It follows,
Order reversed and Ike appellant discharged from further detention.
Dissenting Opinion
dissenting:
T am unable to concur in the discharge of the petitioner, for reasons which I will state briefly.
1. I think the better practice in a case like this would be for the justice issuing the writ to make it returnable before himself, but I cannot agree that he has no power to make it returnable before another. The sections of the Code relating thereto must be considered in connection with § 62, which provides, among other things, that “any cause may be certified by any justice to another justice to be heard or tried by the latter.”
In my opinion, granting the writ and making it returnable before another is a substantial certification of the case for trial by the latter.
Be that as it may, however, the petitioner has lost the right to raise the question on this appeal. The justice was vested with general jurisdiction of the subject-matter, at least, and the petitioner, by appearing and submitting himself to the jurisdiction without objection, waived any privilege he might have had to a hearing elsewhere.
2. The petitioner is not entitled to have his case determined upon the facts alleged in his petition save where admitted by the return made to the writ. The return denied all of the facts alleged in the petition which Avere not specially admitted. Instead of joining issue and introducing evidence, he stood upon his demurrer to the return and thereby admitted its entire truth.
B. But considering the case in the light of his own statement, 1 am convinced that he ought to have been compelled to answer the question.
He Avas called as a witness by the caveator, and voluntarily mentioned the circumstances which led to the question Avhich he refused to ansAver. A foundation was thus laid, whether into a
The due administration of justice depends upon the maintenance of the fundamental rule that it is right of every litigant to have introduced, whether witnesses be willing or unwilling, every material and relevant fact that may tend to shed light upon the issue joined.
An exception to the rule, as well established as the rule itself, is that an attorney may not, without the consent of the interested client, be permitted to disclose facts that have been communicated to him by virtue of the relation of attorney and client. But it is an exception, and one who claims the privilege must bring himself entirely within its scope.
The mere fact that an attorney has prepared a will for a person, or has taken memoranda for the purpose, does not, in my judgment, come within the exception; provided always that the inquiry is limited to the simple fact and involves no inquiry into-the terms of the will or into communications made relating thereto in the slightest particular. The mere fact that, a wilt has been made is clearly distinguishable from professional communications relating thereto.
Grant that the average testator might seriously object to the fact of his execution of a .will being made public, and further that it would be unprofessional for his attorney to voluntarily make the fact known; yet these conditions fail to justify the refusal of the attorney to answer to the fact when called as a witness in a case wherein it is relevant to the issue and more or less important to the interests of one of the litigants.
The will must, hy provision of law, be executed in the presence of witnesses. These are clearly not privileged, and the testator himself could be made to disclose the fact. At the same time the
That an attorney may be compelled to disclose the name of hia client in a particular case or matter is well settled. Chirac v. Reinicker, 11 Wheat. 280, 294, 6 L. ed. 474, 477; Brown v. Payson, 6 N. H. 443; Shaughnessy v. Fogg, 15 La. Ann. 330; Com. v. Bacon, 135 Mass. 521, 525 ; Martin v. Anderson, 21 Gra. 301, 308; Mobile & M. R. Co. v. Yeates, 67 Ala. 164, 167; White v. State, 86 Ala. 69, 75, 5 So. 674; Gower v. Emery, 18 Me. 79, 82; Rundle v. Foster, 3 Tenn. Ch. 658.
In Com. v. Bacon, 135 Mass. 521, 525, the witness was required to answer if he had brought an action in the name of “IL J. Brown” — a fictitious plaintiff, and also whether the interrogatories therein, purporting to be signed by “Brown,” had been signed and sworn to by the defendant. The court said that this fact involved no professional communication, and “hence,, although it so happens that the attorney would not actually have known what he testified to but for his employment, his employment cannot be regarded as the legal ground of his knowledge, and the defendant could not object to the disclosure.”
In all of the cases cited the distinction is clearly drawn between a question seeking information as to a strict matter of fact, and as to a matter of confidential communication, relating to. that fact.
I have found no case directly in point, but if an attorney can be forced to disclose the person in whose name, or for whose advantage under a fictitious name, he may have brought an action, then, for equally as strong a reason, he ought to be made to disclose the mere fact that he had written a will or had been retained to write one.
