Ex parte Enzor

• Decision Date: 21 January 1960
• Docket Number: 4 Div. 996
• Citation: 117 So.2d 361,270 Ala. 254
• Parties: Ex parte Leland ENZOR. STATE of Alabama v. Leland ENZOR.
• Court: Alabama Supreme Court

Page 361

117 So.2d 361

270 Ala. 254

Ex parte Leland ENZOR.

STATE of Alabama v. Leland ENZOR.

4 Div. 996.

Supreme Court of Alabama.

Jan. 21, 1960.

Robt. B. Albritton, Albrittons & Rankin, Andalusia, for petitioner.

MacDonald Gallion, Atty. Gen., and John F. Proctor, Asst. Atty. Gen., for respondent.

MERRILL, Justice.

This is a petition by Leland Enzor for a writ of certiorari to Covington County Circuit Court, seeking a review of a proceeding whereby the petitioner was ordered to jail for contempt. Since he is not in prison, our review is by certiorari. Worley v. Worley, 267 Ala. 71, 100 So.2d 18; Jordan v. Jordan, 266 Ala. 386, 96 So.2d 809.

Enzor, a qualified practicing attorney, was called before the Grand Jury of Covington County and asked the following question:

'Will you give us the name of the election official from Beat 3, Box 1, in the last Democratic Primary who told you that he had been offered a sum of money ($100.00) to miscount or tamper with the election returns?'

Enzor asserted that this statement was made to him by a client of his and his answer would violate the rule of privilege which exists as a result of this attorney-client relationship.

The circuit solicitor then filed a petition before Judge Smith praying that the petitioner be required to answer the question or be punished for contempt. A hearing was held on March 17, 1959, and testimony was taken. The judge ordered the petitioner to return to the grand jury room and answer the question. The petitioner refused and was thereupon adjudged to be in contempt and was committed to jail. He later made bond.

The judge found that there did exist an attorney-client relationship between the petitioner and his client at the time the conversation took place, but held that the communication was not a privileged one.

Tit. 7, § 438, provides:

'No attorney or his clerk shall be competent or compelled to testify in any court in this state, for or against the client, as to any matter or thing knowledge of which may have been acquired from the client, or as to advice or counsel to the client given by virtue of the relation as attorney or given by reason of anticipated employment as attorney, unless called to testify by the client, but shall be competent to testify, for or against the client, as to any matter or thing knowledge of which may have been acquired in any other manner.'

It is agreed that this statute is but a declaration of the law on privileged communication between attorney and client previously administered by the courts. It is so stated in Guiterman, Rosenfield & Co. v. Culbreth, 219 Ala. 382, 122 So. 619.

The question for our decision is whether or not the communication was one which the law recognizes as being a privileged communication.

'The rule making communications between attorney and client privileged from disclosure does not ordinarily apply where the inquiry is confined to the fact of the attorney's employment, the name of the person employing him, and the terms of the employment.' 58 Am.Jur., Witnesses, § 507. We have so held in regard to the fact of employment and the name of the client in Mobile & Montgomery Railway Co. v. Yeates, 67 Ala. 164; White v. State, 86 Ala. 69, 5 So. 674. But an exception is said to exist to the general rule. We quote again from 58 Am.Jur., Witnesses, § 507.

'While the disclosure of the identity of the client is not, in and of itself, a matter within the privilege, it may become so by reason of its necessary effect or tendency to reveal the previous connections, conduct, or transactions of the client which are within the privilege, and a direct disclosure of which would concededly be a violation of the privilege; when that condition exists the attorney will not be compelled to disclose the name of his client. * * *'

This exception is stated in the Annotation 114 A.L.R. 1321, at page 1325, and many cases are cited in support of the exception, which usually is based upon the circumstances of the particular case. The case nearest in point is Ex Parte McDonough, 170 Cal. 230, 149 P. 566, L.R.A.1916C, 593, Ann.Cas.1916E, 327. In the annotation following this case in L.R.A.1916C at page 602, it is said:

'As subsequently shown in a large majority of the cases in which the privilege as to communications between client and attorney has been invoked against the disclosure of the identity of the client, the attempt has proved unsuccessful, it being held that the matter sought to be disclosed was not within the privilege. It is believed, however, that the contrary result reached in Ex Parte McDonough is not irreconcilable on principle with those cases. The reason most commonly given for holding that the disclosure of the client's identity is not within the privilege is that the privilege presupposes the relationship of client and attorney, and therefore does not attach to its creation. The reason for the rule, however, and therefore the rule itself seems to fail where, as in Ex Parte McDonough, the disclosure of the identity of the person by whom the attorney is employed--a matter which, in itself, the court and adverse parties are in general entitled to know--will, in the particular circumstances of the cases, have the collateral effect to reveal past matters or transactions that are within the spirit and purpose of the privilege designed to encourage the client in the full and frank disclosure of the matters affecting his interest under the seal of professional confidence. In other words, while the disclosure of the identity of the client is not, in and of itself, a matter within the privilege, it may become so by reason of its necessary effect or tendency to reveal the previous connections, conduct, or transactions of the client which are within the privilege, and a direct disclosure of which would concededly be a violation of the privilege.'

In the McDonough case, the attorney had been employed by a number of clients. Some of them had been indicted for election of frauds in Alameda County, California. One or more of the attorneys' clients who had not been indicted furnished $10,000 as cash bail for the defendants who had been indicted. In subsequent proceedings before the Grand Jury, the identity of the client or clients who had furnished the cash bail was sought to be ascertained. The lower court there, as here, found that the relationship of attorney and client existed between the person or persons whose name was sought to be ascertained and the attorney who was being questioned, but held that the name of the client was not privileged. In reversing the lower court and holding that the identity of the client was provileged, the Supreme Court of California [170 Cal. 230, 149 P. 567] said:

'The question presented is whether the employment of petitioner by his clients to defend Higgins et al. and the furnishing by his clients of the sum of $10,000 to bail out Higgins were matters concerning which he cannot testify without the consent of such clients. Section 1881 of the Code of Civil Procedure provides:

"There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: * * * 2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.'

'However desirable it may be to obtain proofs sufficient to insure the conviction of all persons who commit crimes of the character of those under investigation, and it will readily be conceded that it is most desirable, such proofs may not be obtained from those who are forbidden by our law to give them. In regard to the obligations of an attorney to his client in this respect, our statutes are very explicit, making it his duty 'to maintain inviolate the confidence, and at...