John Doe Grand Jury Investigation, Matter of

• Decision Date: 05 November 1990
• Citation: 562 N.E.2d 69,408 Mass. 480
• Parties: , 59 USLW 2329 In the Matter of a JOHN DOE GRAND JURY INVESTIGATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 69

562 N.E.2d 69

408 Mass. 480, 59 USLW 2329

In the Matter of a JOHN DOE GRAND JURY INVESTIGATION.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 7, 1990.

Decided Nov. 5, 1990.

Thomas J. Mundy, Jr., Asst. Dist. Atty. (Nijole Makaitis, Asst. Dist. Atty., with him), for the Com.

Nancy Gertner, Boston, for John Doe.

Richard I. Clayman, Chelsea, for Dorothy Stuart and others.

Michael Casoli, Boston, for the estate of Charles Stuart, joined in a brief.

Judith H. Mizner, Newburyport, for Massachusetts Ass'n of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

A Suffolk County grand jury has been investigating the possible responsibility of the late Charles Stuart and others for the deaths of Carol DiMaiti Stuart and Christopher Stuart. The grand jury have heard evidence that on January 3, 1990, the day before Charles Stuart died, Charles Stuart conferred for two hours with his attorney, John Dawley, in Attorney Dawley's office. The Commonwealth wants Attorney Dawley to disclose the substance of Charles Stuart's statements at that conference. Dorothy Stuart, who is the administratrix of Charles Stuart's estate, has told the grand jury that she does not believe that she has the right to waive any attorney-client privilege that may apply to Charles Stuart's communications with Attorney Dawley, and that, in any event, if she does have such a right, she will not exercise it by waiving the privilege.

The Commonwealth, by a motion filed in the Superior Court, has requested that a judge order Attorney Dawley to testify before the grand jury concerning the substance of the January 3 conversation. At a hearing on the motion, the Commonwealth argued that the interests of justice require that the privilege be overridden. Dorothy Stuart and all of Charles Stuart's heirs opposed the motion. Purporting to act under Mass.R.Crim.P. 34, 378 Mass. 842, 905-906 (1979), a judge reported to the Appeals Court the question whether, in the circumstances of this case, the attorney-client privilege should be overridden. We transferred the matter to this court on our own initiative. We pass any question concerning the propriety of the report. None of the parties challenges the report on procedural grounds, and we are satisfied that efficiency in the administration of justice would be best served by our answering the reported question regardless of whether, as a technical matter, it is properly before us.

We begin by stating our answer to the reported question as follows: "No. In the circumstances shown by the record, the attorney-client privilege should not be overridden." "The rule which places the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure." Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888). The privilege "extends to all communications made to an attorney or counsellor, duly qualified and authorized as such, and applied to by the party in that capacity, with a view to obtain his advice and opinion in matters of law, in relation to his legal rights, duties and obligations, whether with a view to the prosecution or defence of a suit, or other lawful object." Hatton v. Robinson, 14 Pick. 416, 421 (1833). In Hatton, this court stated that the principle upon which the attorney-client privilege is founded is this: "that so numerous and complex are the laws by which the rights and duties of citizens are governed, so important is it that they should be permitted to avail themselves of the superior skill and learning of those who are sanctioned by the law as its ministers and expounders, both in ascertaining their rights in the country, and maintaining them most safely in courts, without publishing those facts, which they have a right to keep secret, but which must be disclosed to a legal adviser and advocate, to enable him successfully to perform the duties of his office, that the law has considered it the wisest policy to encourage and sanction this confidence, by requiring that on such facts the mouth of the attorney shall be for ever sealed." Id. at 422.

Because "the attorney-client privilege may serve as a mechanism to frustrate the investigative or fact-finding process, it creates an inherent tension with society's need for full and complete disclosure of all relevant evidence during implementation of the judicial process." In re Grand Jury Investigation, 723 F.2d 447, 451 (6th Cir.1983), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). But that is the price that society must pay for the availability of justice to every citizen, which is the value that the privilege is designed to secure. The "social good derived from the proper performance of the functions of lawyers acting for their clients ... outweigh[s] the harm that may come from the suppression of the evidence." Commonwealth v. Goldman, 395 Mass. 495, 502, 480 N.E.2d 1023 (1985), cert. denied, 474 U.S. 906, 106 S.Ct. 236, 88 L.Ed.2d 237 (1985), quoting United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 358 (D.Mass.1950).

The privilege of insisting that the attorney keep confidential the client's disclosures made to the attorney in his or her professional capacity belongs only to the client, and therefore can be waived only by the client, Hatton v. Robinson, supra at 422; Foster v. Hall, 12 Pick. 89, 93 (1831), or, in some instances at least, by the executor or administrator of the client's estate. Phillips v. Chase, 201 Mass. 444, 449, 87 N.E. 755 (1909), appeal dismissed, 216 U.S. 616, 30 S.Ct. 577, 54 L.Ed. 639 (1910). Brooks v. Holden, 175 Mass. 137, 141, 55 N.E. 802 (1900). There has been no waiver in the present case.

It is important to note that the attorney-client privilege survives the client's death. Survival of the privilege is the clear implication of this court's early pronouncements that communications subject to the attorney-client privilege "cannot be disclosed at any future time," see Foster v. Hall, supra at 93, and that "the mouth of the attorney shall be for ever sealed." See Hatton v. Robinson, supra at 422. Also, survival of the privilege is necessarily implied from our cases dealing with the power of executors and administrators to waive the privilege which had belonged to the deceased client. If the privilege were to end upon the death of the client, there would be nothing for the executor or administrator to waive.

The Commonwealth does not contend that Charles Stuart's death terminated any preexisting attorney-client privilege. Rather the Commonwealth's position is that Charles Stuart, having died, no longer can be harmed by the disclosure of his communications to his attorney, and therefore, in this case, the privilege should be "overridden" because society's interest in ascertaining the truth concerning the deaths of Carol DiMaiti Stuart and Christopher Stuart and in identifying the parties responsible therefor outweighs the value sought to be promoted by means of the attorney-client privilege.

No Massachusetts case supports the proposition advanced by the Commonwealth. The Commonwealth's reliance on Doherty v. O'Callaghan, 157 Mass. 90, 31 N.E. 726 (1892), as bolstering the argument that, in resolving the present controversy, we ought to "give some consideration to the effect of the client's death in weighing the competing interests," is misplaced. In Doherty, we did not weigh competing interests. In Doherty, we said: "Undoubtedly, while the testator lives, the attorney drawing his will would not be allowed, without the consent of the testator, to testify to communications made to him concerning it, or to the contents of the will itself; but after his death, and when the will is presented for probate, we see no reason why, as a matter of public policy, the attorney should not be allowed to testify as to directions given to him by the testator, so that it may appear whether the instrument presented for probate is or is not the will of the alleged testator." Id. at 93, 31 N.E. 726. We said that "we are of opinion that the case does not fall within the reason of the rule relating to privileged communications," and therefore the rule simply did not apply. Id. In the will situation, the testator's communication is designed for publication after death. Neither the client's nor the public's interest would be served by sealing the attorney's lips forever. Those circumstances are unique, however. As the attorney-client privilege rule recognizes, ordinarily the client's and the public's interests are best served by a rule of confidentiality that applies both before and after the death of the client.

The Commonwealth places substantial reliance on an intermediate appellate court decision in Pennsylvania entitled Cohen v. Jenkintown Cab Co., 238 Pa.Super. 456, 357 A.2d 689 (1976). We have been unable to find any case subsequently decided by the Pennsylvania Superior Court or the Pennsylvania Supreme Court in which the court has followed the Cohen holding. In that case, the plaintiff brought an action against the employer of a taxicab driver to recover for injuries the plaintiff had sustained in a motor vehicle accident. There was a question as to the identity of the offending driver, especially as to whether the driver was an employee of the defendant. The taxicab driver had revealed to his attorney that he had been the driver, and then the driver died. In determining the admissibility of that revelation in the case against the taxi company, the Pennsylvania Superior Court weighed the interests of the deceased driver and his estate in the nondisclosure of the driver's communication...