NLRB v. Harvey

• Citation: 349 F.2d 900
• Decision Date: 07 July 1965
• Docket Number: No. 9718.,9718.
• Parties: NATIONAL LABOR RELATIONS BOARD, Appellant, v. E. Bruce HARVEY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

349 F.2d 900 (1965)

NATIONAL LABOR RELATIONS BOARD, Appellant, v. E. Bruce HARVEY, Appellee.

No. 9718.

United States Court of Appeals Fourth Circuit.

Argued March 3, 1965.

Decided July 7, 1965.

Rehearing Denied September 23, 1965.

George B. Driesen, Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Solomon I. Hirsh, Atty., N.L. R.B., on brief), for appellant.

S. Bolling Hobbs, Lynchburg, Va. (Caskie, Frost, Davidson & Hobbs, Lynchburg, Va., on brief), for appellee.

Before SOBELOFF and BRYAN, Circuit Judges, and BUTZNER, District Judge.

BUTZNER, District Judge:

The National Labor Relations Board has appealed from a judgment of the District Court which denied the Board's application for an order requiring E. Bruce Harvey to obey a subpoena duces tecum issued by the Board.¹ The Court quashed the subpoena and discharged a rule to show cause which had been issued against Harvey.

The subpoena was issued as an incident to the Board's investigation of charges that the American Furniture Company placed E. O. Shrader, a representative of District 50, United Mine Workers, under surveillance by detectives during an organizing campaign. The company discharged two employees shortly after Shrader visited their homes.

O. T. Link, the head of the detective agency, upon advice of counsel, declined to identify the person who had employed him. The District Court held him in contempt. Its judgment was affirmed. Link v. N. L. R. B., 330 F.2d 437 (4th Cir. 1964). Link then disclosed that he had been employed by Harvey. He furnished the Board a copy of his report to Harvey which included information about Shrader's visits to the homes of the two employees who were later discharged.

Harvey has engaged in the general practice of law in Altavista, Virginia since 1950. He is qualified to practice in the courts of Virginia and in the Supreme Court of the United States. He is a member in good standing of bar associations in Virginia and the American Bar Association. His partner, W. Barney Arthur, has been a licensed attorney for more than thirty years and is chairman man of the Sixth Judicial Committee of the Virginia State Bar. Harvey declined to comply with the subpoena or to name his client unless the Court required him to do so. He testified that at the request of a client he employed Link to conduct the surveillance. He asserts that the attorney-client privilege justifies his refusal to name the client and comply with the subpoena. In support of his position he submitted an affidavit which states in part:

"* * * in late February or early March, 1963, a long time, regular and continuing client of the firm of Arthur & Harvey, and for which client said firm has performed and furnished legal services of a varied nature, both before and since, did, in conference and in confidence and not in the presence of others, and with the distinct understanding that client\'s name would not be revealed in connection therewith, seek and engage the aid, counsel, advice, assistance and services of said firm in the securing of certain information of importance to said client in the lawful conduct of said client\'s affairs; that in the securing of such information and in the carrying out of the services and assistance for which said firm was employed, I did during the last part of February or the first part of March, 1963, and without revealing the name or purposes of the client, engage the services of one O. T. Link, of Danville, Virginia, a private detective or investigator doing business under the name of Danville Detective Agency, to make an investigation concerning the activities of one E. O. Shrader then living or staying at Rocky Mount, Virginia; that Mr. Link\'s investigation covered a period of one week, from March 4, 1963, to March 11, 1963; that Mr. Link\'s written report of his investigation was delivered to me and a copy thereof delivered to the client hereinbefore referred to; that I am advised that a copy of Mr. Link\'s report was delivered on or about May 25, 1964, to Mr. David C. Sacks, Regional Attorney for the applicant, National Labor Relations Board, by Mr. C. Stewart Wheatley, counsel for Mr. Link in the proceeding then pending in this Court under the style of National Labor Relations Board v. O. T. Link, Civil Action 597(D); that the client of Arthur & Harvey referred to herein is not the American Furniture Company of Martinsville, Virginia, or any person, firm or individual employed or in any way connected with said company; that no information contained in the said report obtained from Mr. Link as aforesaid has been revealed by me or through the firm of Arthur & Harvey to said American Furniture Company or to any officer, agent or employee thereof or to anyone other than the aforesaid client nor has any other communication or information of any kind concerning the matter for which our services and assistances were engaged by our client been so revealed; that the client hereinbefore referred to advises and I have every reason to believe that said client has no connection of any kind, has not acted as agent for and has not revealed any information contained in Mr. Link\'s report to the American Furniture Company or any officer, agent or employee thereof, and that such information has not been passed on, by or through said client to said American Furniture Company or any officer, agent or employee thereof; that the foregoing appear to be borne out by the statement of Mr. Richard M. Simmons, Jr., President of American Furniture Company reported in March 26, 1964, issue of the Roanoke Times, a copy of which is attached hereto:

"I further depose and say that the purposes for which the services of the firm of Arthur & Harvey were engaged by our aforesaid client and the resulting investigation of Mr. Shrader by Mr. Link under my direction were not for the purpose of interfering, restraining or coercing any employee of the American Furniture Company or any other employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act or in violation of Section 8(a) (1) of said Act; that such purposes and the investigation of Mr. Shrader were not in connection with any criminal or fraudulent matter, nor in my considered opinion were they unlawful or in violation of any provisions of the National Labor Relations Act or any other law or statute; that all communications between the aforesaid client of the firm of Arthur & Harvey of which I am a partner in connection with the aforesaid matter, including specifically the name of the client, have been considered both by the client and his attorneys to be in strictest confidence and to constitute privileged communication within the recognized principles of attorney-client privilege and protected against disclosure to other persons without the consent of the client; that the client involved has specifically declined to give consent to any disclosure of his name or any such communication; that under the circumstances I sincerely feel and believe that it would be a breach of Canon 37 of the Canons of Professional Ethics of the American Bar Association of which I am a member and of the recognized legal ethics observed by reputable attorneys in Virginia to reveal the information sought by the applicant; and further that in my considered judgment such information, if revealed, would be of no aid or assistance to the applicant for the purposes of its investigation and charges against the American Furniture Company."

The Board asserts that the key to its investigation of the charges is the identity of the person who employed Harvey to arrange the surveillance. It points out that the employees were discharged shortly after the detective reported to Harvey that the union representative had visited their homes. The Board contends that if the company arranged for the surveillance, it may have violated the Act, and a complaint should issue to prevent further interference with rights guaranteed by the Act.² On the other hand, the Board concedes that if the company is not responsible for the employment of the detective the charge relating to the surveillance can be dismissed. The Board does not challenge the veracity of Harvey. It has, however, moved to strike those portions of his affidavit that are based upon hearsay or express an opinion.

The District Court found upon amply supporting evidence that Harvey had acted on behalf of a longtime, regular, continuing client; his client was not the American Furniture Company; his firm had performed varied legal service for the client before and since the surveillance; no information about the surveillance was passed to American Furniture Company by Harvey; and he had every reason to believe that his client did not reveal information to American Furniture Company. Of course, it was impossible for Harvey to say, and consequently for the Court to find, whether unknown to Harvey his client informed the American Furniture Company about the surveillance. The District Judge properly held that the identity of Harvey's client is relevant to the proceeding before the Board and must be disclosed by Harvey unless disclosure is protected by the attorney-client privilege.

Wigmore, recognizing that a definition of the attorney-client privilege is a matter of some difficulty, has stated the essentials to be:

"(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived." 8 Wigmore, Evidence § 2292 (McNaughton rev. 1961)

An oft-quoted definition of the privilege is found in United States v. United Shoe Machinery Corporation, 89 F.Supp. 357, 358 (D.Mass.1950):

"* * * The privilege

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