United States v. Marrelli

LatimeR, Judge

(concurring in the result) :

I concur in the result.

The opinion of the Court, expressed through the words of Judge Brosman, is exhaustive and all-inclusive. There are, however, a number of principles announced which I consider of doubtful application in light of the meager evidence I find in this record. By way of illustration, there is good authority to the effect that, if a lawyer sets aside his legal cloak and is employed as an accountant, the information he obtains in that capacity is not privileged. On the other hand, if he is consulted as a counselor of law, the fact that he deals with accounts or accounting principles does not destroy the confidential relationship. Again, if an attorney is employed in the capacity of a real estate broker, communications made to him must be disclosed on the witness stand, but not so if the clients seek and obtain legal advice on questions arising out of real property transactions. My difficulty, in the instant case, springs from the lack of evidence to establish an attorney-client relationship, and as to whether the disclosure, if improper, occurred before or after the accused *289claims to have employed Mr. Johnson as his counsel. For that reason, I prefer to base my concurrence on a narrow ground.

The principle of attorney-client privilege is an exception to the general liability of every person to give testimony upon all facts inquired of in a court of justice. Therefore, the party seeking to exclude the testimony should be required to produce facts which would render the evidence incompetent. In this instance, the most that was offered in that behalf is that at some time between the latter part of October 1952, and January 1953, the accused had an occasion to hire an attorney by the name of Johnson, officing in Panama City, Florida; that he never authorized the attorney to turn over to other parties any documents belonging to him; that he did not know when Johnson obtained the checks; and that his mother paid the bill. The checks amounting to approximately $250.00 were issued on the 14th, 15th and 16th days of October 1952, and they were repurchased from the various merchants in Panama City shortly after they had been returned for nonpayment. There were three victimized merchants who testified on the identity of the repur-chaser — one stated the check was redeemed by Davenport and Johnson Law Association; one mentioned a Mr. Johnson; and, a third mentioned a local attorney.

From the foregoing meager presentation of facts, we are asked to conclude that the attorney obtained possession of the checks as a result of disclosures made by the accused while a confidential relationship existed between them. However, there are so many interstices in the evidence that for us to fill them in would require a major task of supplementation. I do not propose to mention all of the missing links as, for my purposes, two will suffice. The first gap in the evidentiary chain is found in the fact that the .record does not establish the date the accused is supposed to have employed Mr. Johnson as an attorney. The obligations represented by the checks were satisfied shortly after the checks had been refused by the bank, and it is entirely possible that the repurchasing transactions may have been completed before the accused consulted with Mr. Johnson or had any intent to employ him as a counselor. In that connection, it is to be noted that the accused testified his mother paid for the service performed, and it is more than a fair inference that she or some other third party advanced the funds to redeem the checks as accused’s source of income had dried up. If the information came into the possession of the attorney from accused’s mother prior to the time the claimed relationship was contemplated, then the knowledge he obtained concerning the checks would not be protected by confidentiality. Moreover, the accused testified he did not know when the checks were turned over to the attorney, and, for aught that appears, the checks may have been released to the representative of the Air Force before any contract of employment was negotiated by the accused.

In discussing a second fatal weakness found in the record, I will assume an attorney-client relationship has been established. Based on that assumption, we are faced with a situation where an attorney has released information concerning his client prior to trial. The question of importance then posed is whether the attorney exceeded his authority in making any disclosure. The reasons justifying him in doing so were never probed into, and, unless I desire to impute bad faith unto him, then I must conclude he had some reasonable basis for taking the action he did. Obviously a client can authorize his attorney to make a full and fair disclosure of any fact, and there are many good reasons which might justify a lawyer in releasing information concerning his client without exceeding his express or implied authority. The record is noticeably silent about the reasons for seeking Mr. Johnson’s assistance, and he may have been directed to take any and all steps which might have a tendency to forestall prosecution by either state or Federal authorities. While the accused testified he did not authorize the counselor to turn any documents over to third persons, that *290hardly denied he authorized the attorney to take such action as might be necessary to have the state authorities relinquish jurisdiction and return the accused to military control for possible disciplinary action. Neither does it deny that the attorney was authorized to negotiate with military authorities to have them request a release by the state. It is probable that there were some advantages which would accrue to the accused if the prosecution was channeled through military sources. If so, a showing that the obligations were fully paid and satisfied might influence military authorities to request the state to relinquish jurisdiction. In addition, it may have been necessary to make a full disclosure to escape prosecution by both the state and the Federal Government. Furthermore, the record shows this to be accused’s first brush with the law; the transactions were closely related in time; and he was interested in remaining in the service. The evidence that accused had negotiated the checks, and that he could be identified, must have appeared compelling. Accordingly, a trusted and competent attorney might, in order to assist his client and without breaching his trust, properly establish that his client had committed an offense but had repented, had made restitution, and had righted his wrongs. By adopting those tactics he might further his client’s chances of escaping prosecution. To support such a plan, the attorney could release supporting evidence. While in this case the attorney might have done less than release the checks temporarily, there is no showing he could; and there is not an iota of evidence in the record that he exceeded his authority in proceeding as he did. A finding to that effect is a necessary predicate to a conclusion that he breached a confidential relationship, and the finding must be supported by some evidence.

I have mentioned only two fatal deficiencies, one which undercuts the confidential relationship, and one which eats away the claim of an unauthorized disclosure. However, there are many others, and collectively they so weaken the understructure necessary to support accused’s contention that it must fall.