In re Kaplan

By the order appealed from appellant, a lawyer, has been committed to jail (Civ. Prac. Act, § 406) until he shall tell respondent New York City Commissioner of Investigation the name of the client who gave appellant certain information wMch the latter turned over to the Commissioner. The facts are tersely stated in the Special Term opinion: “It appears that respondent is an attorney and represents United Fruit Buyers Association, Inc. The latter is an organization

After reciting the facts, Special Term rejected appellant’s argument that he was entitled to withhold the name because of the attorney-client privilege (Civ. Prac. Act, § 353). The court wrote: “Until there is a client, there is no attorney-client relationship. So in order to establish it, the name must be revealed. It follows that the privilege does not extend to the identity of the client (People ex rel. Vogelstein v. Warden of County Jail, 150 Misc. 714 , 717, affd. 242 App. Div. 611 ).” It appears, however, from the whole record and as found by Special Term itself in the opinion above quoted that the lawyer-client relation clearly did exist in this situation. The law question, then, is whether an attorney confidentially retained by a client to pass certain information to a public investigating body is to land in jail because he is willing to disclose the information

Justice Shientag’s brilliant and comprehensive opinion in Vogelstein’s ease (People ex rel. Vogelstein v. Warden of County Jail, 150 Misc. 714 , affd. 242 App. Div. 611 ) is cited as a holding that the privilege never extends to concealment of the client’s name. But the law and the sweep of that opimon are not that broad. The court in Vogelstein pointed out, as do all the authorities, not only that the fact of retention of counsel is ordinarily not confidential or privileged but that divulgenee of the alleged client’s identity is often necessary in order to determine whether the basic fact of attorney-client status really exists, so as to bring into play section 353 of the Civil Practice Act. Many decisions are cited in the Vogelstein opinion (and elsewhere, see Fisch, New York Evidence, § 521) to show that the great weight of authority in England and in this country is that the client’s identity does not come within the scope of the privilege. But there is a distinct cleavage of opinion in this State (see cases both ways cited by Fisch) and many exceptions, some of them for situations where giving out the client’s name would serve no necessary purpose but on the contrary would make public the very fact as to which the client desired and was entitled to secrecy. Usually, it is not the client’s name but the client’s communication to his lawyer which is held to be sacred, and so, ordinarily, there is no need to conceal the name to preserve the confidence. But here the client’s communication had already been divulged to the Commissioner and it was the client’s name that deserved and needed protection (see Elliott v. United States, 23 D. C. App. 456; United States v. Lee, 107 F. 702 ) for fear of reprisals, etc. Since there was no reason to doubt that the informant was a client of appellant, it was unnecessary to investigate that relationship. Since the client’s communication to appellant was made in the aid of a public purpose to expose wrongdoing and not, as in the Vogelstein case, to conceal wrongdoing, the seal of secrecy should cover the client’s name, so long as Ms information was made available to the public authorities. The contrary holding serves no right end, contravenes the ancient policy expressed in section 353,

The general rule is, or seems to be, that there should be disclosure of the name if the question of identity arises during the course of a litigation (see 1 Thornton, Attorneys, § 124, and see Wigmore’s remark in § 2313 of the 5th edition of his work on Evidence [Vol. 8, p. 608] that “ Every litigant is in justice entitled to know the identity of his opponent”). Other cases (like Vogelstein, supra) remove the veil from the client’s name when the attorney’s assertion of the privilege is a cover for co-operation in wrongdoing. But these are exceptions to the rule of confidentiality and since ‘ ‘ much ought to depend on the circumstances of each case” (8 Wigmore, op. cit., § 2313, p. 609) the present fact picture is surely a strong one for sticking to the rule, rather than making another exception.

We should reverse on the ground indicated, and thus decide a law question of general public importance. There is, additionally, a narrower reason for the same result. Section 406 of the Civil Practice Act, pursuant to which this commitment was ordered, requires in terms that the witness must have been served with a subpoena to warrant requiring him to attend. No subpoena or warrant was ever served on appellant, who appeared (as is now conceded) before the Commissioner on the latter’s invitation. Respondent argues that appellant’s voluntary appearance was the equivalent of, or a waiver of, service of a subpoena. For some purposes that would be true. But section 406 is a most drastic statute mandating incarceration of indefinite length for refusals to answer questions (see People ex rel. Valenti v. McCloskey, 6 N Y 2d 390 ; Matter of Commissioner of Investigation v. Lombardozzi, 5 N Y 2d 1026 ). Such statutes are always strictly construed. ■ In Matter of Spector v. Allen ( 281 N. Y. 251 ), this court reversed a contempt conviction for lack of a proper subpoena duces tecum where a witness had been served with such a subpoena listing certain documents and orally directed by the Grand Jury foreman to bring in another paper, which order he disobeyed. Our language in Matter of Spector v. Allen (supra, p. 260 ) is applicable here: “To protect the liberty of the individual from possible abuse of power, punishment for contempt is hedged about with restrictions and subject to regulations imposed by the Legislature. Disobedience only

At the Appellate Division, two of the Justices dissented on quite a different ground. They thought that materiality of the questions was negatived by the lapse of two and a half years from the time appellant first gave his information to the Commissioner until the time of this questioning. However, that dissent was on a question of fact. We could not hold on this record that the questions were as matter of law immaterial.

The order should be reversed and the proceeding dismissed, with costs in all courts.

Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Order reversed, etc.