Prichard v. United States

Decision Date05 June 1950
Docket NumberNo. 10964.,10964.
Citation181 F.2d 326
CourtU.S. Court of Appeals — Sixth Circuit

Hugh B. Cox, Washington, D. C. (Leslie W. Morris, Marion Rider, Frankfort, Ky., Victor A. Bradley, Georgetown, Ky., Henry T. Duncan, William H. Townsend, Lexington, Ky., and Hugh B. Cox, Washington, D. C., on the brief), for appellant.

Claude P. Stephens, Lexington, Ky. (Claude P. Stephens, Lexington, Ky., Golden N. Dagger, George R. Gallagher, John J. O'Keefe, Jr., Washington, D. C., and I. S. Microutsicos, Washington, D. C., on the brief), for appellee.

Before SIMONS, ALLEN and McALLISTER, Circuit Judges.

Judgment Affirmed June 5, 1950. See 70 S.Ct. 1029.

SIMONS, Circuit Judge.

The appellant and his law partner, A. E. Funk, Jr., were indicted under § 241, Title 18 U.S.C.A. for conspiracy to stuff ballot boxes in certain precincts of Bourbon County, Kentucky, at the general election in November, 1948, which was, of course, a national election. Funk was acquitted but Prichard was convicted and sentenced. He contends that the district court erred in admitting the testimony of Judge Ardery in respect to a confession, over his claim of privilege; that there was no corroborative evidence of Judge Ardery's testimony to warrant submitting the case to a jury; that Funk, having been acquitted and the charge being conspiracy, the judgment against him should have been set aside, and finally, that the proofs failed to establish a federal offense.

The principal ground for the appeal as argued and briefed, relates to the testimony of judge Ardery as to an interview solicited from him by Prichard, and this necessitates a recital of the circumstances which led to the conversation and the status of the parties at the time. Prichard is a lawyer with a career of marked distinction. Graduated from college and with a law degree from Harvard Law School, admitted to the bar in 1939, he had been research secretary to one and probably two of the present Justices of the Supreme Court, to the Attorney General of the United States and the Secretary of the Treasury, and was, at one time, general counsel of the Democratic National Committee. Returning from Washington to Kentucky a number of years before the incidents here involved, he practiced law in the Circuit Court of his county and in the Court of Appeals of the Commonwealth of Kentucky. He became a man of great influence in the politics of his state and county. Judge Ardery is a judge of the 14th Judicial Circuit of the State of Kentucky, had known Prichard all his life, especially since Prichard had been a school mate and later a law partner of his son, Philip. At the election 254 forged ballots had been placed in the ballot boxes of a number of the precincts in Bourbon County prior to the opening of the polls. On the night that the appellant, accompanied by Philip Ardery, sought the interview with the judge, the latter had already called a grand jury to investigate election frauds in the county. The grand jury was to meet the following morning at which time Judge Ardery was expected to instruct the grand jurors as to their duties and the scope of the investigation, as required by Kentucky law.

Prichard had gone to Philip Ardery, his former law partner, on Sunday evening, November 7, 1948, for legal advice. Whatever conversation there was between them at that time was held by the district judge to be within the attorney-client relationship, so privileged, and is not here involved. Prichard and Philip Ardery, however, decided to consult Judge Ardery and drove to the judge's house, arriving there about 11 o'clock. Being advised that the interview which then transpired would be met by the claim of privilege on behalf of Prichard, the district judge heard evidence and argument in camera as to the nature of the evidence expected to be solicited from the judge, and limited interrogation with scrupulous concern for Prichard's rights. In view of Judge Ardery's official position, the duties he was then engaged upon in reference to the grand jury, the command of Kentucky statutes and the public interest, he concluded that one who seeks the advice of the judge of the court in which his case is to be tried is not entitled to the privilege accorded by law to confidential communications between an attorney and client. To allow the privilege under such circumstances would invite frustration of the administration of the courts by their duly elected and qualified judges. Such application would seem inimical to the public interest and a perversion of the purpose and spirit of the rule. He decided that judge Ardery's testimony was admissible and would be received by the jury with caution as to its lack of bearing upon the guilt of the co-defendant.

At the preliminary hearing the judge had told the court that when Mr. Prichard appeared at his door that night he said, "Judge, I am in deep trouble and I want your advice." He then invited him into his home. To the jury the judge testified, "Mr. Prichard told me that he and two other young men prepared the ballots here in issue and put them in the ballot boxes before the election began." He said that he felt he could give Prichard legal advice and that if anything transpired later he would not sit in the case. Prichard gave him two details in regard to it. He said one of the young men wrote the names of the election officers on the ballots and that he stamped the ballot which scratched Senator Chapman. Prichard appeared greatly disturbed, both mentally and emotionally. His mind was not on the past. It was on the future, at what it might hold for him. "He asked me if I had a suggestion which would help him. I had none at that time." Asked whether Prichard had requested suggestions at any other time, the judge testified that he had on the following Wednesday. At this point the court excused the jury for the purpose of considering the competency of this additional evidence. Judge Ardery then explained, "I suggested to him that he go to his pastor and talk over the matter he had told me of. He didn't seem inclined to receive that suggestion favorably, and then I told him that in my opinion the sooner he got this question over and disposed of, the better it would be. My grand jury was then in session. * * * We understood each other as to what my words meant." While this second conversation was not permitted to go to the jury it has bearing upon the problem here involved.

The privilege that attaches to the communications of a man to his lawyer is of ancient origin. "It is a salutary rule designed to secure the client's freedom of mind in committing his affairs to the attorney's knowledge." 5 Wigmore on Evidence, (2d) Ed. § 2306. "It is designed to influence him when he may be hesitating between the positive action of disclosure and the inaction of secrecy." It is the privilege, however, of the client which the attorney is bound to respect. As Wigmore elucidates it, § 2291, "It is worth preserving for the sake of a general policy; but it is none the less an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle." As one court has put it, "The privilege is an anomaly, and ought not to be extended." Foster v. Hall, 12 Pick., Mass., 89, 97, 22 Am.Dec. 400. In the endeavor to phrase the general principle so as to represent all of its essentials, Wigmore undertakes to fashion a formula by which this may be accomplished. Its elements are (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

We concern ourselves here primarily with the second element of the formula, and this leads us first to a consideration of Kentucky law. Section 30.120, par. 1 of the Kentucky Revised Statutes, provides: "The Governor, the Lieutenant Governor when serving as Governor, a judge of the Court of Appeals or circuit judge shall not practice law in any court of the state except in cases in which he was employed previous to his election, or in which he is personally interested." Prichard contends that this does not impose general prohibition against the practice of law by circuit judges. It merely provides that circuit judges shall not practice law in any court of the state and the giving of legal advice carried on outside the courtroom does not constitute practicing...

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