State v. DawsonState v. Dawson
William A. Hallowes, III, and Edward M. Booth, Jacksonville, for appellee.
DREW, E. HARRIS, Associate Judge.
William B. Dawson is a member of the Florida Bar. He practices law in Jacksonville under the name of Dawson and Hart, P.A., and was so engaged during all pertinent times in these proceedings. He is the owner of all the capital stock of said professional service corporation.1 The corporation employed Gerald R. Hart, a lawyer; Rebecca Lea Salter, a secretary; and James R. Geiger, an accountant.
In 1971 the Grand Jury of Duval County returned four indictments against Dawson charging grand larceny against several insurance companies by fraudulent representations in the settlement of automobile accident claims of many of his clients. Four separate informations by the state‘s attorney were returned against Dawson. Some three weeks later four informations were filed against Dawson charging identical offenses as those alleged in the indictments.
While the grand jury investigation was underway, it issued witness subpoenas duces tecum to the employees aforesaid,2
Subsequent to the delivery of the above documents and records to the grand jury, it returned two more indictments against Dawson charging grand larceny and other related offenses in connection with the settlement of automobile accident claims by various clients of Dawson. Thereafter, the state‘s attorney filed two additional and similar informations against Dawson.
Dawson, after amendments had been filed to the several indictments and informations, filed motions to dismiss all of them on the grounds of immunity, contending that all documents produced by the employees were personal to him and were files of his personal law practice and that he, through his employees, was compelled to produce evidence that incriminated him.3
The able trial judge assigned to the case held that Dawson was immune from prosecution under
The universal rule is that the privilege against self-incrimination applies only to natural individuals and cannot be utilized by or on behalf of a corporation.6 The trial judge held that such rule was inapplicable to a professional service corporation under
We think the High Court envisioned the problem we are faced with here when, speaking through the late revered Mr. Justice Thornal in In Re: The Florida Bar, supra, it said:
“Traditionally, prohibition against the practice of a profession through the corporate entity has been grounded on the essentially personal relationship existing between the lawyer and his client, or the doctor and his patients. This necessary personal relationship imposes upon the lawyer a standard of duty and responsibility which does not apply in ordinary commercial relationship. The noncorporate status of the lawyer was deemed necessary in order to preserve to the client the benefits of a highly confidential relationship, based upon a personal confidence, ability, and integrity. If a means can be devised which preserves to the client and the public generally, all of the traditional obligations and responsibilities of the lawyer and at the same time enables the legal profession to obtain a benefit not otherwise available to it, we can find no objection to the proposal.”
......
“On the contrary, because of the privilege that is being made available to lawyers of this State there will be increased responsibilities commensurate with the privilege.”
Dawson, as we have heretofore noted, at all times argued that the documents and evidence required by the grand jury and delivered to it by his employees were personal to himself as a lawyer, practicing as a professional corporation pursuant to law. The privilege against self-incrimination is, indeed, undisputedly a personal one. It cannot be used by any organization or corporation, and the documents or other evidence which the immunity is designed to protect must be personal to those that claim that protection or at least in his possession in a purely personal capacity.9
The rule to govern “is whether one can fairly say under all the circumstances that a particular type of organization has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interest of its constituents, but rather to embody their common or group interest only.”10
We think there is no difference whatever in compelling a man to be a witness
That these documents so seized by the coercion of the grand jury were personal to Dawson cannot be doubted. That they were used for the purpose of securing indictments and informations against him is unquestioned. Their use, therefore, in these criminal cases are prohibited by the immunity statute.
Our attention has been called to the case, In Re: Brian W. Bublick, Case No. 72-1739, U.S. Court of Appeals, 7th District Chicago, Opinion filed September 8, 1972, not reported, involving the production of records by an attorney practicing as a professional service corporation under the Illinois law. In this case, the court refused to quash the subpoena requiring the production of such records. This case is not controlling for several reasons; the principal one being set forth in that court‘s opinion thusly:
“The sole issue which is properly before us in this appeal is whether the privilege against self incrimination applies to the records of an individual lawyer practicing as a professional service corporation under the Illinois Professional Service Corporation Act. No question of the attorney-client privilege is involved.”
Moreover, the history of the Illinois Act and its specific provisions which might bear on that court‘s view are not before us, and even if they were and even if the Illinois Federal Court was to reach a conclusion contrary to ours, which it obviously has not done and which we doubt it would do, we would not be persuaded by it because of our firm conviction that basic constitutional rights would be violated.
We do not here say that every record or document in the possession of a lawyer is immune from seizure. We do say and hold that the records seized here concerning confidential attorney-client relations are protected, and that the trial judge properly quashed the various charges and abated the action.
Affirmed.
RAWLS, C.J., and WIGGINTON (Ret.), J., concur.
Notes
As to Gerald R. Hart: “All cancelled checks payable to Dr. Archie T. Frazier, Dr. Robert S. Nash, Dr. Edgar F. Merchant, Dr. Kenneth O. Weidler and Dr. Carl R. Rosseland on the bank account of DAWSON AND HART, P.A. at First Bank and Trust Company, Jacksonville, Florida, said checks bearing the dates January 1, 1969 through February 28, 1971, ...”
As to Rebecca Lea Salter: “Copies of checks payable to Dr. Archie T. Frazier on the bank account of DAWSON AND HART, P.A. at the First Bank and Trust Company, Jacksonville, Florida, said checks bearing the dates January 1, 1970, through February 28, 1971
and
Statements, or copies thereof if originals unavailable, showing charges for professional services by Dr. Archie T. Frazier rendered to the persons whose names appear on the list attached hereto for injuries purportedly received in automobile accidents
and
Closing statements or copies thereof if originals unavailable, showing sums withheld for Dr. Archie T. Frazier from insurance company drafts with respect to automobile accident liability claims of the persons whose names appear on the aforesaid list attached hereto
and
Ledger cards or sheets on each of the persons whose names appear on the aforesaid list attached hereto showing debit and credit entries... .” [Note: The list attached contains the names of 218 individual clients of Dawson.]
As to James R. Geiger: “... [B]ring with you any and all books, records, journals, ledgers and other papers and documents within your possession, custody or control pertaining to DAWSON AND HART, P.A., a professional service corporation... .”
Note: The above is the verbiage of the Florida Immunity Statute in effect from January 1, 1971, to June 2, 1971, the period during which the subject subpoenas were issued and which controls here.