In re Bull

• Decision Date: 09 August 1954
• Citation: 123 F. Supp. 389
• Parties: In re BULL.
• Court: U.S. District Court — District of Nevada

123 F. Supp. 389

In re BULL.

United States District Court, D. Nevada.

August 9, 1954.

Samuelson & Johnson, Reno, Nev., for respondent.

Madison B. Graves, U. S. Atty., Las Vegas, Nev., amicus curiae, for the Court.

GOODMAN, District Judge (sitting by special designation.)

This proceeding was initiated by an order directing respondent attorney to appear and show cause why he should not be disbarred from practicing before this Court. The order was prompted solely by certain statements reflecting unfavorably upon the Court, contained in a letter written by respondent to a client. This letter was mailed from Reno, Nevada, where respondent maintains his office, to the client, Albert Adelman, while Adelman was in custody in the Las Vegas County Jail following his conviction and sentence upon a federal criminal charge. Respondent had defended Adelman at the trial of the criminal charge before this court in Las Vegas a few days previously. The letter was written for the purpose of advising Adelman regarding the taking of an appeal. When the letter arrived at the Las Vegas County Jail, it was opened by the jailor and given to a deputy United States Marshal. The marshal showed the letter to Judge Foley of this Court, who had presided at Adelman's trial. The Judge directed that the letter be photostated. Thereafter the letter was delivered to Adelman. The photostatic copy of the letter is appended to the order to show cause. It reads as follows:

"Dear Al:

Sorry I was unable to be present at the time of your sentencing.

I have decided, after giving the matter thorough consideration, that it would be advisable to appeal your case. Frankly, Al, I doubt very much whether we would be able to succeed in an appeal, because experience has shown us that the records of any trial in Foley's court are emasculated when an appeal is taken. Furthermore, Foley has a very dear friend on the circuit court of appeals. Nevertheless, it is worth giving it the old college try, and I am so mad at the conduct of Foley at the trial, that I would go to great lengths to secure a reversal.

This does not mean that it will be unnecessary for you to start serving your sentence. Needless to say you should start serving your sentence as soon as possible.

In the meantime, best of luck — and if you happen to be passing through Reno, maybe I will be able to see you again.

Yours very truly Samuel T. Bull."

In response to the order to show cause, respondent appeared in person and by counsel and moved to suppress the letter as evidence upon the dual ground that it was a privileged communication between attorney and client and that it had been obtained by a search and seizure prohibited by the 4th Amendment to the United States Constitution. He also moved to dismiss this proceeding upon the ground that an order of disbarment cannot be predicated upon statements made in confidence to a client regarding the conduct of a pending cause. The motions, as well as the merits, have been submitted for decision.

Upon the grounds asserted by respondent, the motion to suppress is without merit. The letter does not qualify as a privileged communication between attorney and client. The modern rationale of the attorney-client privilege, as recognized in the law of evidence, is to encourage the client to confide freely with his attorney so that the attorney may know all the facts necessary to advise the client competently. Consequently the privilege extends only to communications concerning matters confided by the client to his attorney. It is a protective device available only to or on behalf of the client. Zenith Radio Corp. v. Radio Corp. of America, D.C., 121 F.Supp. 792; 8 Wigmore on Evidence §§ 2290-2 and 2317 (3rd Ed. 1940). 63 Yale Law Rev. 1038. Not one word in the letter refers to any fact which respondent learned from Adelman.

The opening and inspection of the letter at the Las Vegas County Jail was not an illegal search and seizure in violation of the 4th Amendment. Prison authorities, of necessity, have the right to censor prisoners' mail. The 4th Amendment does not sanction an unrestricted channel of communication behind prison walls. Stroud v. United States, 1919, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103; Adams v. Ellis, 5 Cir., 1952, 197 F.2d 483.

Neither as a privileged document, nor because of unlawful search or seizure, may the letter be suppressed. Consequently the motion to suppress is denied.

But, under the circumstances of this case, the admissibility in evidence and propriety of the use of the Adelman letter, pose a serious and indeed unique question. Principles of public policy will dictate its resolution.

In support of the motion to dismiss, respondent contends for a broad rule. He urges that no private communication from an attorney to a client, concerning the fitness of the Court to rule upon the client's cause, is admissible in a disciplinary proceeding against the attorney. He cites as authority, Ex parte Cole, Iowa 1879, 6 Fed.Cas. pp. 35, 39, No. 2,973. In that case, which involved different and more complicated facts, the Court, referring to a communication from an attorney to his client, which was derogatory to the Court, said: "That is one of the class of communications between attorney and client which the patrons of the law should and must protect, for any other rule would work a restriction in the freedom of intercourse between them more injurious to the sound administration of justice than the effects of any mistaken opinion or even false misrepresentation of the attorney." In the field of broad public policy, this may be, in a general sense, a sound rule. But, in my opinion it cannot have over-all application, particularly, where, as here, the facts do not justify it.

For attorneys can do much harm by reckless and unfounded statements discrediting the courts. Though such statements may be made in private to a client, it is unrealistic to suppose they will go no further. The opinions of an attorney concerning the courts are apt to be accepted at face value by the layman. The result is the undermining of public confidence in our judicial system. In these times, when it seems to be the fashion to hurl charges with reckless abandon, some thought at least should be given to upholding the honor and the integrity of our courts.

Certainly no such general immunity as to all communications, private or otherwise, by attorney to client, as is approved in the Cole case, is warranted. But other and narrower considerations do require our attention in this case.

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