Prichard v. United States
181 F.2d 326 (6th Cir.), aff'd, 339 U.S. 974 (1950)
 

SIMONS, J. 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....

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....

Judge Ardery was not merely a judge giving, as a lawyer, legal advice to a client--he was the presiding circuit judge of Bourbon County and as such had impaneled a grand jury which he was about to instruct concerning reported infractions of law upon which his advice was sought. By all standards of ethical conduct which govern the conduct of a judge it was morally, if not legally, impossible for Judge Ardery to enter into an attorney-client relationship with one whose conduct was to be investigated by a grand jury already called and about to be instructed, and this Prichard knew or must have known. It is true that no indictment against Prichard was returned by the local grand jury, but this was because the Federal Bureau of Investigation had taken over the inquiry and the state grand jury investigation was never completed. Prichard testified in camera that he knew Judge Ardery would be disqualified in sitting upon his case if an indictment against him were returned. By all the modern concepts of judicial ethics, the judge was not only disqualified from sitting on Prichard's case, but doubtless was also disqualified from organizing and instructing the grand jury once he was advised that the investigation would likely bring within the ambit of the inquest matters bearing upon the conduct of one who, upon the eve of inquiry, had already discussed with him participation in the very alleged unlawful conduct about to be investigated....

While Prichard asserts he went to the judge for legal advice, and while the judge thought he might give such advice and then withdraw from any case that might result from the grand jury investigation, there is no suggestion in the record as to any advice sought or given that would constitute legal advice. Rather is there strong inference that Prichard sought the interview to ease a troubled conscience and sought it of Judge Ardery not in his professional capacity as a lawyer capable of giving legal counsel but as a wise and valued friend who had known him all his life. "I am in deep trouble and I want your advice," and so the judge seemingly interpreted it. "I suggested to him that he go to his pastor and talk over the matter he had told me of.... We understood each other as to what my words meant." ...

Finally, Prichard's request for advice was robbed of the element of good faith once he knew, as know he did, that the judge was about to charge a grand jury in respect to election frauds. Whether we conceive the function of the judge in organizing and instructing a grand jury to be judicial or administrative is immaterial. In either capacity, knowledge of law violation may not be reposed in him under the cloak of privilege. As Wigmore puts it, [5 Wigmore on Evidence, 2d ed.] 2300, "A consultation with a judge, in his capacity as such, falls unquestionably outside the present privilege." Judge Ardery was currently engaged in ferreting out election frauds under the authority and command of the laws of his state. Knowledge that came to him while exercising this function could not be received by him in confidence. Whether judges of superior courts may ever enter into an attorney-client relationship, we need not presently decide, even though voicing our doubts. It is sufficient to say for purpose of present decision, that a judge circumstanced as was Judge Ardery, may not enter into such relationship with a lawyer who may not deny knowledge of accepted notions of judicial propriety. There was no error in receiving Judge Ardery's evidence.



Is the result in Prichard consistent with proposed Rule 503? Does the Prichard court utilize an objective, subjective, or strict liability approach to the question of the existence of a confidential lawyer-client relationship?

 


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