United States v. Pape
144 F.2d 778 (2d Cir. 1944)

CLARK, J. Pape appeals from a judgment of conviction under an indictment for transporting a woman in interstate commerce "for the purpose of prostitution, debauchery and other immoral purposes."...

[T]he attorney, Buckley, ... appeared for the woman in Washington when she was first taken up by the police, and she was discharged in his custody. On preliminary examination the judge developed that he was retained by the accused about July 15, 1942, to represent the woman as well as the accused--for what purpose, so far as the latter was concerned, never appeared.... [The judge] proceeded to make his ruling explicit by saying that the lawyer could be asked who retained him to appear for the woman on the occasion in question and who paid his fee, identifying the persons if they were in court.... The lawyer did, therefore, testify that the accused retained him to represent the woman and paid his fee, also that he saw the defendant in Washington and that he had a Packard automobile. Of course, practically all this was merely cumulative; the court records were produced and showed that the woman was indeed released to the attorney; and the only additional fact brought out was that the accused's clearly proved interest in the woman went to the point of retaining and paying for a lawyer to secure her release.

The authorities are substantially uniform against any privilege as applied to the fact of retainer or identity of the client. The privilege is limited to confidential communications, and a retainer is not a confidential communication, although it cannot come into existence without some communication between the attorney and the--at that stage prospective--client.... [T]here may be situations in which so much has already appeared of the actual communications between an attorney and a client, that the disclosure of the client will result in a breach of the privilege; but nothing of the sort occurred here....

It seems clear on the authorities, therefore, that the evidence actually brought out before the jury was not privileged. There seems nothing in the preliminary disclosure to the judge that the attorney was also to represent the accused to change this result.... Generally speaking, relevant evidence is freely admissible, except as it is privileged; and the privilege extends only so far as the policy behind it demands. Here, as Mr. Justice Shientag shows with his usual felicity, People ex rel. Vogelstein v. Warden of County Jail, 150 Misc. 714, 270 N.Y.S. at page 367, "it was not the purpose of the privilege to shield guilt. Its primary object was to secure the orderly administration of justice by insuring frank revelation by the client to the attorney without fear of a forced disclosure; in other words, to promote freedom of consultation. To be sure the exercise of the privilege may at times result in concealing the truth and allowing the guilty to escape. That is an evil, however, which is considered to be outweighed by the benefit which results to the administration of justice generally."

He adds, "There is nothing in the books to show that the privilege was to extend to the fact of the retention of counsel. No point is made that the employment of counsel should be shrouded with secrecy." Hence when the narrow exclusionary rule ceases to apply, then the more general and pervasive rule of free disclosure to ascertain the truth and prevent the guilty from escaping furnishes the governing principle.

Conviction affirmed.

L. HAND, J. (dissenting).

The evidence of the accused's guilt was so strong that I feel some compunction in voting to reverse, yet there are two errors which I think require the case to be retried. Pape retained Buckley as his own lawyer at the same time that he retained him for the woman. I agree that this retainer of an attorney for himself involved no privileged communication; I have nothing to add to, or subtract from, what my brothers say on that. Moreover, it goes without saying that Pape's retainer of Buckley for the woman would not have been privileged, had he not retained him as his own attorney. On the other hand I attach no importance to the fact that he retained him in both capacities at the same time; the case stands as it would, if he had retained him for himself first. Yet if he had done that, when he told him to appear for her, I think it was a communication between attorney and client, a step in his own defence; it may have been also a step in hers but that, I submit, is irrelevant. That direction to his own attorney in his own interest was as much a privileged communication as any direction would have been, made in the course of preparing for a trial; as much, for example, as to tell one's attorney to interview a witness. That it was an important step in connecting him with the woman's prostitution, admits of no debate.


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