United States v. Woodruff, Crim. No. 74-58.
| Decision Date | 06 November 1974 |
| Docket Number | Crim. No. 74-58. |
| Parties | UNITED STATES of America v. Donald L. WOODRUFF, a/k/a Chips. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
David J. McKeon, Phila. Strike Force Dept. of Justice, Philadelphia, Pa., for plaintiff.
Thomas C. Carroll, Defender Ass'n, Philadelphia, Pa., for defendant.
In this case, defendant Woodruff, who was free on bail pending trial of this matter, did not appear for trial. The government, which intends to seek an indictment against this defendant on charges of bail jumping, in violation of 18 U.S.C.A. § 3150, has requested this Court to order the public defender who represented this defendant to respond to the questions put to him by the government relating to whether or not he advised his client as to the time and place of the trial in this matter and further as to whether or not his client responded and acknowledged that he understood the time and place of the trial.
Defense counsel agrees that the procedure by which this motion has been brought is valid and that the Court should act on the basis of the merits of the dispute so that the sole question before us is whether counsel is obligated to furnish this type of information when properly requested by the government. The essence of the question is whether the compelled disclosure which is sought will violate the attorney-client privilege. We grant the government's motion.
There is no doubt that the purpose of this rule is to promote the freedom of consultation of legal advisers by clients. We set out Judge Wyzanski's statement of the privilege.
"The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which his attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. United States v. United Shoe Machinery Corporation, 89 F.Supp. 357, 358-59 (D. Mass.1950).
The only basis upon which the communications here may be held to be outside of the privilege is that of subject matter. The communications here were not made with the purpose of securing legal advice or assistance with respect to the legal problem of the defendant. Moreover, the nature of the communications are such that the information is not incidental to or intertwined with the legal problem of the defendant. Finally, the form of the questions and the nature of the communications together insure that privileged communications will not be drawn within their scope.
Two Circuit Courts have held that there is no breach of the attorney-client privilege in permitting a defendant's former counsel to testify that he had informed the defendant of the necessity of his appearance at a court proceeding and the time thereof. Both these cases involved prosecutions for violations of the statute under which the government intends to proceed against the present defendant. Both courts noted: that it is the duty of counsel to relay such instructions as an officer of the court; that, in this regard, defense counsel merely served as a conduit for the transmission of a message; and that, the transmission of such an instruction is not in the nature of a confidential communication. United States v. Hall, 346 F.2d 875, 882 (2d Cir., 1965), cert. den. 382 U.S. 910, 86 S.Ct. 250, 15 L.Ed.2d 161 (1965); United States v. Bourassa, 411 F.2d 69, 74 (10th Cir., 1969), cert. den., 396 U.S. 915, 90 S.Ct. 235, 24 L. Ed.2d 192 (1969).
Wigmore has helpfully analyzed the problem presented by this motion.
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...privilege, other jurisdictions which have addressed the question have concluded that it is not so protected. See, e.g., U.S. v. Woodruff, 383 F.Supp. 696 (E.D.Pa.1974) (attorney may be questioned as to the whereabouts of a client who has jumped bail as long as the questioning does not impli......
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