Hall County Grand Jury Proceedings, In re

• Citation: 175 Ga.App. 349,333 S.E.2d 389
• Decision Date: 27 June 1985
• Docket Number: No. 71087,71087
• Parties: In re HALL COUNTY GRAND JURY PROCEEDINGS.
• Court: United States Court of Appeals (Georgia)

Page 389

333 S.E.2d 389

175 Ga.App. 349

In re HALL COUNTY GRAND JURY PROCEEDINGS.

No. 71087.

Court of Appeals of Georgia.

June 27, 1985.

Rehearing Denied July 9, 1985.

Certiorari Granted Sept. 6, 1985.

Howard J. Manchel, Atlanta, Charles O. Gignilliat, Gainesville, for appellant.

Bruce L. Udolf, Dist. Atty., George P. Shingler, Atty. Gen., for appellee.

CARLEY, Judge.

Mr. William Binion is an accountant. In May of 1985, Mr. Binion was called to appear as a witness before the Grand Jury of Hall County. He was questioned concerning accounting work that he had done for several of his former clients. Mr. Binion freely responded to questions of a general nature. As to specifics, however, he invoked, on behalf of those clients, the accountant-client privilege and declined to answer. The grand jury filed a motion in the Superior Court of Hall County, seeking an order to compel Mr. Binion to testify as to those matters to which a claim of privilege had been asserted. This motion was supported by the sealed affidavit of the grand jury foreman. The affidavit summarized certain other testimony that the grand jury had already received concerning those former clients with regard to whom Mr. Binion had asserted the privilege.

After directing that service be made on Mr. Binion's affected former clients (hereinafter referred to as "intervenors"), the superior court conducted a hearing on the grand jury's motion to compel testimony. At that hearing, the superior court heard arguments from all of the respective parties concerning the scope of and exceptions to the accountant-client privilege. After the hearing, the superior court conducted an in camera inspection of the material which the grand jury had filed in support of its motion to compel Mr. Binion's testimony. After this in camera inspection, the superior court entered an order which held, in part, that the privilege did not extend to "representations or communications which are in furtherance of a scheme to commit a crime or fraud." The superior court further held that the material filed by the grand jury in support of its motion was sufficient to constitute a prima facie showing that the testimony it sought from Mr. Binion was within this exception to the accountant-client privilege. Accordingly, the superior court granted the grand jury's motion, and ordered Mr. Binion to testify.

The intervenors filed a direct appeal to this court from the superior court order. The district attorney, representing the grand jury, moved for an expedited appeal which was granted.

1. Although we find no Georgia cases directly on point, following the rationale of Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982), we are persuaded by the logic of federal decisions that the order compelling Mr. Binion's testimony before the grand jury is directly appealable by the intervenors. See In re Grand Jury Proceedings, 641 F.2d 199 (5th Cir.1981).

2. The accountant-client privilege is established by OCGA § 43-3-32(b). "Due to the similarity of our statutory privileges for the clients of attorneys and accountants ... we feel [an] analogy drawn between the two is sound...." Gearhart v. Etheridge, 232 Ga. 638, 641, 208 S.E.2d 460 (1974). Accordingly, it follows that in the accountant-client relationship, as in that between attorney and client, communications occurring after a fraud or a crime has been completed are privileged, but those which occur before the perpetration of a fraud or commission of a crime and which relate thereto are not protected by the privilege. "As to violations of law or commission of fraud, ... the protection extends only to communications after the act or transaction is finished. It does not cover communications respecting proposed infractions of the law in the commission of a crime or the perpetration of a fraud. [Cits.] 'The privileged communication may be a shield of defense as to crimes already committed, but it can not be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society,' frauds or perjuries. [Cit.]" Atlanta Coca-Cola Bottling Co. v. Goss, 50 Ga.App. 637, 639, 179 S.E. 420 (1934). See also Marriott Corp. v. American Academy of Psychotherapists, 157 Ga.App. 497, 502(3b), 277 S.E.2d 785 (1981). Thus, the superior court did not err in holding that the intervenors had no valid privilege as to any communications to Mr. Binion that were preliminary to the intervenors' commission of a crime or perpetration of a fraud.

3. The intervenors' primary assertion of error concerns the procedure by which the superior court determined that this exception was applicable to their communications to Mr. Binion. As noted above, the superior court, after hearing legal arguments as to the privilege, conducted an in camera inspection of an affidavit summarizing the other testimony that had been heard by the grand jury and, based upon this affidavit, made the factual determination that Mr. Binion's testimony concerning certain communications from the intervenors was not privileged. The intervenors assert that the in camera determination that the privilege did not attach to Mr. Binion's testimony was violative of their due process rights. The intervenors contend that they should have been apprised of the contents of the material considered by the superior court and should have been given the opportunity to refute any allegations or contentions therein that their communications to Mr. Binion had been made with prospective criminal or fraudulent intent.

" 'It is an established rule of evidence in this State that, in a judicial trial in a court of law, where evidence is finally adjudicated and final judgments are rendered, ex parte affidavits are inadmissible, and their admission in such a case over proper objection constitutes reversible error.' [Cits.]" (Emphasis supplied.) Lanthripp v. Lang, ...