(dissenting). Petitioners were discharged from their positions as toll collectors by the Triborough Bridge and Tunnel Authority of the City of New York, following hearings upon charges of misapplication of toll tickets and misappropriation of funds at one of the Authority’s bridges. The evidence against them was in large measure gathered by one Berninger, a fellow employee, who served as an undercover investigator for the Authority, and whose activities, as such, were completed on September 28, 1950, when petitioners were suspended. Fearful of reprisals if petitioners were to learn of his activities, Berninger asked that he be suspended along with petitioners. Then, that having been done, Berninger, on his own initiative and without advising anyone connected with the Authority, joined petitioners in “ retaining ” attorney Asher W. Schwartz and in attending two conferences held by Mr. Schwartz at his office before the hearings were scheduled to begin on October 18th.
That it was Berninger’s own idea both to “ retain ” Mr. Schwartz and to visit the latter’s office with petitioners when they conferred with him, cannot, in the light of the evidence, be disputed. In point of fact, not only did no one associated with the Authority request or suggest to Berninger that he do either the one or the other, but no official of that body had any inkling that Berninger had seen Mr. Schwartz until the evening of October 17th, after the conclusion of the second conference — and that was some weeks after petitioners had been suspended and several days after formal charges of misconduct had been *435filed and served upon them. It is likewise indisputable, first, that all of the evidence upon which the charges were predicated had been gathered prior to the time that Berninger had “ retained ” Mr. Schwartz; second, that Berninger obtained no additional evidence or information as a result of attending the conferences at the lawyer’s office; and, third, that his presence there in no way operated to petitioners ’ prejudice.1 In brief, Berninger’s action in joining with petitioners occurred after he had concluded his work as an undercover investigator, was his own idea and was conceived solely for his own personal protection.
Guilt having been proved beyond all question, petitioners challenged the Authority’s decision solely on the ground that they were denied a fair hearing by reason of Berninger’s intrusion into their conferences with their attorney. They urge that they were deprived of the right of private consultation with counsel in preparation for the hearings. The courts below, agreeing with that contention, have annulled the Authority’s determination and directed reinstatement of petitioners’ jobs and restoration of their civil service rights.
*436Opportunity for private consultation with counsel is an essential element of the right to he represented by an attorney, so essential that a deprivation of that opportunity or an intrusion upon the privacy of consultation by government, or one of its agencies, must be deemed a denial of that right. (Cf. Coplon v. United States, 191 F. 2d 749, 759-760, certiorari denied 342 U. S. 926.) I would agree, therefore, that petitioners would be entitled to a vacatur of the Authority’s determination, if the Authority had had anything to do with Berninger’s attendance at the conferences or if it had made use of any information obtained at those conferences. Where, however, as in the case before us, the record is devoid of any such evidence — where it appears without contradiction that Berninger had acted as he did without the knowledge or authorization of the agency, prompted solely by personal considerations of his own — to annul the Authority’s decision, not only would extend the scope of the right of representation by counsel beyond all reasonable limits, but would serve no possible purpose. WTiile justice is our objective, fail-dealing our aim, I cannot perceive how invalidating the Authority’s action would advance either. Highly apposite are the words of Mr. Justice Cardozo in a capital case: “ justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. ’ ’ (Snyder v. Massachusetts, 291 U. S. 97, 122.) I would confirm the determination of the Authority.
The order appealed from should be reversed and the petition dismissed.
Loughran, Ch. J., Desmond and Dye, JJ., concur wth Lewis, J.; Field, J., dissents in opinion in which Conway and Froessel, JJ., concur.
Order affirmed, etc.
. Berninger swore — and no one disputed or contradicted him — that “Neither Mr. Dougherty, who was acting as counsel for the Authority, nor anyone else connected with the Authority ever suggested that I visit Mr. Schwartz’ office or that I should retain him as my attorney.” And it is clear from the affidavit of Lieutenant Rogers, to whom Judge Lewis refers in his opinion, that he learned of Berninger’s retention of Mr. Schwartz and his visits to the latter’s office only after they had taken place; thus, he asserted, “Mr. Berninger also told me that to avoid suspicion he had gone along with a group of the accused men to the law office of O’Donnell & Schwartz ”.
Moreover, the record conclusively demonstrates that Berninger neither acted as informant nor reported anything to Rogers or to anyone else after the middle of September; it was not until September 29th, I note, that he first saw attorney Schwartz. Thus, Berninger averred, “ The period covered by these reports made to Lieut. Rogers was from about the first of August 1950 until shortly after the middle of September of that year”. Lieutenant Rogers confirmed that with the statement that “ All Mr. Berninger’s reports on the mishandling of the toll tickets by the men at the bridge were made to me prior to the time of their suspension on September 28th.” And the Authority’s counsel, Mr. Dougherty, likewise declared, “ I know and emphatically state that the Authority’s information had all been collected before the notice of suspension was given on September 27 [sic] and that no information or evidence used on the hearings was obtained through Berninger’s visits to Mr. Schwartz’ office”.