Dike v. Dike

• Decision Date: 05 December 1968
• Docket Number: No. 40081,40081
• Citation: 448 P.2d 490,75 Wn.2d 1
• Court: Washington Supreme Court
• Parties: Charles A. DIKE, Jr., Plaintiff, v. Robbin Angela DIKE, Defendant, John R. Simmons, Appellant, The State of Washington, Respondent.

Page 1

75 Wn.2d 1

448 P.2d 490

Charles A. DIKE, Jr., Plaintiff, v. Robbin Angela DIKE, Defendant, John R. Simmons, Appellant, The State of Washington, Respondent.

No. 40081.

Supreme Court of Washington, Department 2.

Dec. 5, 1968.

McIntosh & Simmons, Philip McIntosh, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Herbert L. Onstad, Deputy Pros. Atty., Seattle, Cole, Chapin, O'Connell & Nelson, Kenneth A. Cole, Richard C. Nelson, Bellevue, for respondent.

NEILL, Judge.

This is an appeal from a conviction of an attorney for contempt committed in the presence of the court.

Appellant was the attorney for Robbin Angela Dike, defendant in a divorce action. On November 17, 1967, the court entered an order in the divorce action placing temporary custody of the parties' minor child with a Mr. and Mrs. McCutchin, subject to visitation rights by both parents and to the defendant mother's right of temporary custody on weekends. Appellant, as attorney for defendant, had full knowledge of the provisions of the order.

On November 29, 1967, Mrs. Dike removed the minor child from the McCutchin home and failed to return her. A motion to find defendant in contempt for violation of the custody order was served on appellant on December 8, 1967. Neither defendant nor appellant appeared at the December 15th hearing on the motion for contempt. The court thereupon directed plaintiff's counsel to prepare an order addressed to appellant requiring him to appear before the court at 11:30 a.m. on December 18, 1967, and to produce defendant or to show cause why he should not produce her. This order was served on appellant at 9:30 a.m., December 18th.

Appellant appeared as directed. He filed a special appearance, motion to quash, and motion and affidavit of prejudice for transfer to a different department of the court. All were summarily denied. He refused to answer any questions relative to his client's whereabouts. He contended that the questions were improper because his information was confidential and that disclosing this information would be in violation of the canons of professional ethics.

The court thereupon had a uniformed deputy sheriff come to the courtroom, remove appellant, handcuffed, to the county jail where he was booked, fingerprinted and 'mugged'. Subsequently, appellant was released on $5,000 cash bail. It was not until January 8, 1968, that, pursuant to a motion by appellant, an order in compliance with RCW 7.20.030 ¹ was entered. An order was entered January 12, 1968, purging appellant of the contempt and exonerating his bond. This order recites that defendant had appeared at the trial of the divorce action on January 2d. ²

Appellant contends that the court erred in denying his motion to transfer the action to a different department in the superior court and in overruling his special appearance and motion to quash the show cause order on the basis of lack of jurisdiction. Appellant's contention that the matter should have been transferred to another department is without merit. The trial court had properly assumed continuing jurisdiction over the minor child and had awarded temporary custody to someone other than the parents, pending a final determination of the divorce action. The primary purpose of the hearing at which appellant was ordered to appear was to investigate into the alleged violation of the court's temporary custody order and to determine the whereabouts of the child. The judge who acted in the temporary order was familiar with the facts of the case including the mother's wrongful actions. He, therefore, was the proper judge to consider appellant's refusal to disclose the whereabouts of the mother and child.

As to appellant's contention that the court lacked jurisdiction or power to compel appellant to appear personally at the hearing we do not agree. It has been stated that

While a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted court has power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, and for the enforcement of its judgments and mandates. (Footnotes omitted.) 21 C.J.S. Courts § 88, p. 136 (1940).

It has also been said that courts have inherent power

* * * to supervise, and to correct the errors or abuses of, their officers and subordinates.

* * * to investigate charges of acts having a direct tendency to obstruct or prevent the administration of justice, or charges of misconduct on the part of their officers. (Footnotes omitted.) 21 C.J.S. Courts § 88, p. 138 (1940).

To hold that a trial judge has no jurisdiction to compel an attorney, representing one of the parties in an action pending before that judge, to appear at a hearing being held to determine whether the attorney's client is deliberately violating a valid order of that court would render trial courts powerless to enforce their judgments and mandates and to insure the orderly administration of justice.

Appellant assigns error to several of the findings made by the court, but our reading of the record convinces us that the findings are supported by the evidence with one exception. The court found that 'Robbin Angela Dike intermittently observed and disregarded said order until November 29, 1967 when Mrs. Dike, with the knowledge of John Simmons, her Attorney, forcibly removed the minor from the McCutchin's custody * * *.' We see no support for the finding that the actions of Mrs. Dike were performed with the knowledge of her attorney. However, even striking such finding will not alter the basic issue since the wrongful act of Mrs. Dike was continuing and it is obvious that appellant became aware of her misdeed during its continuance.

In discussing the primary issue raised in this appeal, it is important to recognize that an attorney has a dual role--he is both an advocate for his client and an officer of the court. The various duties and obligations of appellant emanate from these two roles. Neither duty can be meaningfully considered independent from the other. Of this dual role of the attorney, it has been said (Henry S. Drinker, Legal Ethics (1953), p. 75, quoting from People ex rel. Attorney General v. Beattie, 137 Ill. 553, 574, 27 N.E. 1096 (1891)):

The lawyer's duty is of a double character. He owes to his client the duty of fidelity, but he also owes the duty of good faith and honorable dealing to the judicial tribunals before whom he practices his profession. He is an officer of the court--a minister in the temple of justice. His high vocation is to correctly inform the court upon the law and the facts of the case, and to aid it in doing justice and arriving at correct conclusions.

See also, 7 Am.Jur.2d Attorneys at Law § 5 (1963); and 20 Am.Jur.2d Courts § 4 (1965).

When the court learned that appellant's client had violated its custody order, it had the power as well as the obligation to investigate into the matter, to seek the whereabouts of the child, to order the mother to appear before the court and produce the child.

Appellant, as an officer of the court, had the duty to avoid hindering the court's efforts to protect the child's welfare, if not the duty to affirmatively assist the court. Appellant's refusal to disclose the whereabouts of his client clearly hindered the court's efforts in this regard and would constitute contempt of court unless his duty to preserve inviolate the confidences of his client encompassed his knowledge of the client's address and unless this latter duty overrides appellant's duty to the court.

Before turning to a discussion of the applicability of the attorney-client privilege, we should touch upon one other preliminary issue. The canons of professional ethics (CPE 1) provide in part that

It is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor.

The attorney's duty flowing from CPE 1 has been explained as follows (Drinker, supra, at 69):

Although it is both the right and duty of a lawyer to protest vigorously rulings on evidence or procedure or statements in the judge's charge which he deems erroneous, nevertheless, when the ruling has been finally made, the lawyer must, for the time being, accept it and invoke his remedy by appeal to the higher court. * * *

'The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may tax his patience and his temper to submit to rulings which he regards as incorrect, but discipline and self-restraint are as necessary to the orderly administration of justice as they are to the effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal appointed to decide, and the bar should at all times be the foremost in rendering respectful submission.' (Footnotes omitted.)

On the basis of this principle, respondent contends that appellant's refusal to disclose the whereabouts of his client constituted contempt irrespective of whether or not the court erred in ruling that the information sought was not privileged.

In Robertson v. Commonwealth of Virginia, 181 Va. 520, 536, 25 S.E.2d 352, 358, 146 A.L.R. 966 (1943), an attorney was ordered by the trial court to produce certain evidence. The attorney refused on the ground that the evidence was within the attorney-client privilege protecting confidential communications. The trial court held the attorney in contempt and the attorney appealed. The Virginia court stated:

A judgment,...