Lanza v. New York State Joint Legislative Comm. on Government Operations, 3 N.Y.2d 92 (N.Y. 1957)

Froessel, J.

Plaintiffs, an attorney and his alleged client, brought this action to restrain defendants, a New York State Joint Legislative Committee, its chairman and counsel, from ‘ ‘ using ’ ’ or divulging a communication said to be confidential and contained in a recording thereof illegally obtained, and for related relief. At the same time, plaintiffs moved for a temporary injunction for the same relief. Defendants cross-moved to dismiss the complaint for lack of jurisdiction and for legal insufficiency under subdivisions 1 and 4 of rule 106 of the Buies of Civil Practice. Special Term, New York County, by two separate orders, granted the injunction pendente lite, and denied defendants’ cross motion. The Appellate Division unanimously reversed both orders, granted defendants’ cross motion to dismiss, and denied the motion for a temporary injunction.

Plaintiffs in their complaint allege, among other things: That the defendant, New York State Joint Legislative Committee on G-overnment Operations, was duly created in 1955*

by the Legislature of the State of New York to investigate and examine the management of any State department, board, bureau, commissioner or other agencies of the State; that said committee was empowered by the Legislature to make studies, among other things, of the operation of State government with a view towards determining its economy, efficiency and effectiveness ; administration of State laws and the detection and prevention of unsound, improper or corrupt practices; and was authorized to exercise the powers granted to legislative committees by the provisions of the Legislative Law.

That in February, 1957 the committee undertook to investigate the facts and circumstances concerning the parole violation of plaintiff Joseph Lanza. On April 26, 1957, an announcement appeared in the newspapers to the effect that the committee would hold public hearings beginning on April 29th, in the course of which it would make public a certain recording of conversations between Cosentino and his client Lanza, which had come into its possession, and which plaintiffs claim was made without their knowledge or consent. The recording is alleged to have been made on February 5th and 6th in the counsel room of the Westchester County Jail when no one else was present.

Some of the foregoing allegations are contradicted in the affidavits submitted by defendants in opposition to the motion for a temporary injunction. It is true, as referred to in Judge Desmond's opinion, that the committee counsel stated upon the argument that the intentional secret interception of a confidential communication between attorney and client in the counsel room of a prison is repugnant, but it is also true that he offered to the court the minutes of the committee’s hearing which, he stated, would demonstrate beyond doubt that this simply did not take place here. Because of the objection by plaintiffs’ attorney, we were not permitted to examine these minutes. Whatever the actual facts may be, however, we are required, on a motion attacking the complaint on its face, to assume its allegations to be true (Denihan Enterprises v. O’Dwyer, 302 N. Y. 451, 458; Blanshard v. City of New York, 262 N. Y. 5, 12).

The primary question presented to us is: May the New York State Joint Legislative Committee on Government Operations, an arm of the State Legislature, one of the three co-ordinate

branches of our State government, and its named representatives, be enjoined by the courts from making a part of its record at a public session a tape recording and transcript, now in its possession, of an alleged private conference between Lanza and Cosentino while in a local county jail? It is not denied that the subject matter of this tape recording is within the scope of this committee’s inquiry.

Plaintiffs contend that the use and divulgence of the recording in question violate the privilege between attorney and client afforded by the provisions of section 353 of the Civil Practice Act, and impair the client’s constitutional right to counsel. The attorney-client privilege is of common-law origin (8 Wigmore on Evidence [3d ed., 1940], § 2290 et seq.; Whiting v. Barney, 30 N. Y. 330), and as adopted by the people of this State is now embodied in sections 353 and 354 of the Civil Practice Act. Section 353 merely provides that an attorney (and his employees) “ shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment ”. Section 354 states: “ The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the * client.” (Emphasis supplied.)

Thus the statute seals the lips of the attorney and affords a privilege against testimonial compulsion, unless waived by the client. In other words, it forbids the disclosure of such evidence by an attorney (and his employees) when examined as a witness. So it has been held with respect to physicians, who “ are accorded the same statutory recognition, sanction and protection ” as attorneys (Matter of New York City Council v. Goldwater, 284 N. Y. 296, 300; Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N. Y. 450). If either should in conversation disclose such secrets, he would, we said in the last-cited case (p. 455), “ violate no statute, however reprehensible his conduct would be ”.

The statute does not inhibit disclosures by other persons who have overheard the conversation (Cary v. White, 59 N. Y. 336, 339; Erlich v. Erlich, 278 App. Div. 244; Sparer v. Travelers Ins. Co., 185 App. Div. 861; Hobbs v. Hullman, 183 App. Div. 743; see People v. Decina, 2 N Y 2d 133, 144; Baumann v. Stein

gester, 213 N. Y. 328; 8 Wigmore on Evidence [3d ed., 1940], § 2326; 58 Am. Jur., Witnesses, § 365; Richardson on Evidence [8th ed.], § 438). It follows that when neither the attorney nor the client is examined as a witness, the statute does not create a right to prevent the disclosure of a confidential communication, and accordingly does not authorize a cause of action for an injunction.

The committee in the instant case does not seek to compel the attorney or the client to testify as to the confidential communication and is not, as in Matter of New York City Council v. Goldwater (supra), invoking the power of the court to compel plaintiffs or anyone else to disclose information they are forbidden to disclose. It is seeking to make a part of the public record of its investigation information which has come to it in the course thereof.

Of course, we agree with the courts below that the secret recording of the conversations in the manner alleged in the complaint was an unreasonable interference with Lanza’s right to confer privately with counsel (see People v. Cooper, 307 N. Y. 253; United States ex rel. Cooper v. Denno, 221 F. 2d 626, cert. denied 349 U. S. 968; Altmayer v. Sanford, 148 F. 2d 161). However, that is not the issue here; it is the “ use ” of the recording that is sought to be enjoined. The interference by undisclosed persons has already taken place. It is clear that if such interference had occurred in connection with a proceeding directed against Lanza, any resulting determination would be annulled by the courts on the ground that the interference with his right to counsel had destroyed his constitutional right to a fair trial (Matter of Fusco v. Moses, 304 N. Y. 424, 433-434; People v. McLaughlin, 291 N. Y. 480, 482-483; Caldwell v. United States, 205 F. 2d 879, 881; Coplon v. United States, 191 F. 2d 749, 757-760, cert. denied 342 H. S. 926; see People v. Cooper, supra, pp. 259-260).

Thus, where in the course of a criminal trial the defendant’s right to confer privately with his counsel has been violated, the trial is vitiated (People v. McLaughlin, supra; Caldwell v. United States, supra; Coplon v. United States, supra; see People v. Cooper, supra). The same rule was applied to set aside a determination of an administrative body where persons accused of corrupt dealings were dismissed after a hearing in the course of which their right to counsel had been denied (Matter of Fusco v. Moses, supra).

Here it is not claimed that the recording will be used in connection with any action or proceeding directed against Lanza — we merely have a legislative investigation and its findings are binding on no one. Lanza’s right to a fair trial is in nowise being impinged upon since there is no trial, present or prospective. None of his property rights is involved. Consequently, the use and disclosure of the communication, unconnected with any proceeding directed against Lanza, as distinguished from the act of recording, is not a basis for an injunction action.

The legislative committee’s hearings here involved are not directed against Lanza but are conducted in furtherance of a legitimate legislative object by express authorization of the Legislature itself pursuant to law. Such power of inquiry is an essential auxiliary to the legislative function (Matter of Joint Legislative Comm. to Investigate State Educ. System [Teachers Union], 285 N. Y. 1, 8; McGrain v. Daugherty, 273 U. S. 135, 174 et seq.).

No contention is made that the information sought to be used is not relevant to this purpose, and in such case the judiciary would be usurping authority if it enjoined the legislative branch of our government, in the exercise of its constitutional functions, from using and making a part of its public record the information from the recording involved here. In Hearst v. Black (87 F. 2d 68) a Senate committee had obtained physical possession of copies of telegrams which had been taken illegally from the telegraph company’s offices. It was sought to restrain the committee “ from keeping the messages or making any use of them or disclosing their contents ”. The court distinguished between the act of illegally seizing the telegrams and their later use and disclosure by the committee, and held that a court of equity has no authority to restrain the latter acts, adding (p. 71) that the universal rule “ is that the legislative discretion in discharge of its constitutional functions, whether rightfully or wrongfully exercised, is not a subject for judicial interference ”. (See, also, Nelson v. United, States, 208 F. 2d 505, 513, cert. denied 346 U. S. 827; Barsky v. United States, 167 F. 2d 241, 250, cert. denied 334 U. S. 843; Matter of Joint Legislative Comm. to Investigate State Educ. System [Teachers Union], supra.)

We can find no authority, constitutional or statutory, empowering the courts to enjoin the Legislature in the assumed

fact pattern of this case. To claim inherent power here is nothing more than an assumption of power on the part of one branch of the government as against a co-ordinate branch. This we decline to do. The Legislature is as much a guardian of the liberties of the people as are the courts. We will not assume that the legislative committee will disregard its duty toward any individual who may in anywise be referred to in its public hearings. Indeed, we do not know whether the allegations of the complaint are in fact true. The committee has had extended hearings and has taken substantial evidence. It is in a position to determine the underlying facts on which it will base any action it may take. The responsibility for such action is that of the committee and the Legislature.

Accordingly, we hold, that the drastic remedy of injunction does not lie in this case, and that no sufficient cause of action is stated in the complaint. The judgment appealed from should be affirmed, and the appeal from the order denying the temporary injunction should be dismissed.

Desmond, J. (dissenting).

Defendants are a New York State Legislative Committee authorized to investigate the operations of the State departments, and the committee’s counsel, all defendants being sued individually and as officials. Plaintiff Cosentino is a lawyer and according to the complaint was acting as lawyer for coplaintiff during an interview with the latter with no one else present in the counsel room of the Westchester County Jail. According to the pleading, the defendant committee has announced that it has, somehow or other, gotten a recording of that supposedly secret and sacredly confidential lawyer-client conversation and intends to make it public. Plaintiffs bring this suit for an injunction against such disclosure. Special Term denied a motion to dismiss the complaint and granted a temporary injunction. The Appellate Division, although it characterized the recording of an attorney-client interview as “ a gross and inexcusable violation ”, found itself powerless to interfere, and reversed the temporary injunction and dismissed the complaint. Since a temporary injunction grant or denial is not appealable or reviewable here, the only question before us is as to the sufficiency of the complaint to state grounds for relief against this threatened wrong.

Under familiar rules, the allegations of the complaint must at this stage be taken as true. Under equally familiar rules,

the complaint must be held sufficient if, liberally construed, it states in some recognizable form a cause of action known to the law (Howard Stores Corp. v. Pope, 1 N Y 2d 110, 114, and cases cited). We must keep in mind that at this point in this court plaintiffs, alleging that they are about to be injured irreparably and that they have no protection except an injunction, are asking us for no more than a trial. To accept as true their pleading of what is admittedly a gross wrong and then to turn them away without even a trial is confession by this court of futility and impotence.

On the argument before us the committee’s counsel agreed that the secret interception of a confidential exchange between lawyer and client is “ repulsive and repugnant” but that the committee nevertheless intends to make public this transcript. Counsel told us in open court that the secret “ bugging ” of the jail room was done by officials of Westchester County, a subdivision of the State. We are, therefore, officially informed that both the eavesdropping and the threatened divulgence are by agencies of the State of New York. It is argued, however, that the lawyer-client privilege extends to testimonial compulsion only and in any event does not bar third persons from disclosing what they have overheard (Civ. Prac. Act, § 353; see Richardson on Evidence [8th ed.], § 438). If we had here no more than a question of admission or exclusion of evidence, we might reluctantly say that the eavesdropped material could be testified to by its possessor. But such an approach misses the main point entirely. What plaintiffs are complaining of is a threatened violation of their fundamental constitutional right. A way should be found to raise a judicial bar against such a wrong.

Scrupulously we eschew interference with the functioning of the Legislature. This court will not enjoin legislative action as such regardless of judicial views as to its legality. But the protection of a citizen’s constitutional rights is a court function and no public official or body is beyond the reach of that judicial power (Youngstown Co. v. Sawyer, 343 U. S. 579). If the President of the United States can be stayed by the courts from seizing the steel mills during a national emergency, a New York State Legislative Committee can be enjoined from a gross violation of a citizen’s personal rights, no less valuable, certainly, than Youngstown’s property. Years ago this court

rejected an assertion by the Attorney-General that “ the exercise of a discretion reposed in him as an executive official by the Legislature cannot be supervised or controlled by the courts ” (Carlisle v. Bennett, 268 N. Y. 212, 217). In rejecting that claim of unbridled power this court said that ‘' there are limits to the power of the Legislature ” and that it “ could not confer upon an executive an arbitrary and unbridled discretion as to the scope of his investigation ”. No more could it make such a conferral on this defendant committee.

There is another compelling reason for asserting judicial power here. Our traditional system of trial and appeal in criminal cases simply cannot be operated unless lawyer-client interviews in jails and prisons have absolute privacy. Persons accused of crimes and not bailed (see Code Crim. Pro., § 552) or accused of parole violations (Correction Law, §§ 216-218) cannot consult counsel anywhere except in jails and prisons. Such consultation under appropriate conditions (see People v. McLaughlin, 291 N. Y. 480) is essential to the protection not only of defendants but of the institution of public justice. Eavesdropping and disclosure will destroy the institution itself.

The individual defendants are sued as State officers and individually. Regardless of whether the State or the Legislature or the committee as entities could be enjoined here, there is ample precedent for an injunction against the legislators and their counsel, as such individuals (Pauchogue Land Corp. v. Long Is. State Park Comm., 243 N. Y. 15; Niagara Falls Power Co. v. White, 292 N. Y. 472, 478; Erie R. R. Co. v. Sells, 298 N. Y. 58, 61). No men, whatever their offices, can escape individual responsibility for acts done without power or right.

That the citizen’s right to counsel is fundamental and that it includes private consultation with an attorney of his choice is settled beyond cavil in this court (People v. McLaughlin, 291 N. Y. 480, supra; Matter of Fusco v. Moses, 304 N. Y. 424; People v. Cooper, 307 N. Y. 253, 259). According to this complaint and by concession of defendants, that right has been violated here. What measure of damage its further violation will do to plaintiffs we cannot know without a trial. We do know from the complaint that plaintiff Lanza is charged with being a parole violator. We cannot speculate as to what prejudice may befall him from the publication of his confidential talks with his lawyer. If the facts are as they appear from

the complaint, such a publication will be grievously wrong. The courts should do their duty by holding a trial and by granting such relief, interim and permanent, as mAy be appropriate.

The only proper and legal purpose of legislative investigations is to gather facts in aid of future legislation. If there is anything in this eavesdropped conversation which can aid the Legislature in performing its legislative functions the members of this committee, having already read this transcript, can form conclusions and transmit them to the Legislature. It is difficult to see how any proper legislative purpose can be served by broadcasting this confidential material.

The judgment should be reversed, with costs, and the motion to dismiss the complaint denied.

Dye, J. (dissenting).

I dissent and vote to reverse on all the grounds stated by Desmond and Fttld, JJ., to which I wish to add the following: In this controversy we deal with á problem that, under ordinary circumstances, would bé relatively simple — does the complaint state a cause of action? I say relatively simple for if under a fair reading of the allegations it appears that the commission of the threatened act, or a continuance thereof, would produce injury to the plaintiff he is entitled to have it restrained. However, in this instance the nature of the rélíef sought, and the parties litigant, combine to complicate the situation by posing a threshold question which strikes at the very fundamentals of orderly government. To state it simply and concisely, may judicial authority be invoked to restrain the Legislature from committing an irreparable injury to a personal right long known to the common law, embodied by implication in our State Constitution and codified into our statutes as section 353 of the Civil Practice Act?

Here, as we know, a conversation between a parole violator and his attorney was surreptitiously obtained by the use of an electronic recording, while they were using the counsel room in the Westchester County Jail, and has since come into the hands of the defendants. This convérsation the defendants threaten to make public, an action they justify on the broad general theory that it is a part of the public record made in the course of its investigation into “ the operation of the State Government * administration of the laws And the detection and prevention of unsound, improper or corrupt practices

Our problem is simplified in great measure by the circumstance that for the purpose of this appeal (1) it is deemed that the subject matter of the recorded conversation is within the scope of the committee’s inquiry, and (2) that the relationship of attorney and client exists.

We all agree that section 353 of the Civil Practice Act securely seals the lips of an attorney and affords privilege against testimonial compulsion unless waived by the client. In the courts below and in the majority opinion, it is pointed out that the protection does not extend to persons who have overheard the conversation. However, we deal here with a conversation obtained by means of an electronic device, the use of which was carefully concealed, was surreptitious and wholly unauthorized by law. Furthermore, the use of it was at a time and place deemed inviolate to intrusion by others — the sanctity of a counsel chamber during an interview between an attorney and his client.

As I see it, the ancient rule that conversations had in the presence of third persons breaks the seal of privilege — absent a waiver of the privilege by a client—has no relevance when the conversation is unlawfully intercepted by a concealed recording device. Under such circumstances the application of the rule takes on a new significance. A concealed electric device is not a third person in any sense of the word and transcription of the intercepted material does not change its status. In that view the third person exception has no application to this situation. The privilege survives the intrusion. Nor does the fact that this recording is not for use in the course of a trial, but for use in connection with a duly authorized legislative inquiry, operate to bar the privilege. There is a vast difference between the use of material obtained by unlawful search and seizure, and the use of a surreptitious recording of a conversation between a client and his attorney. A search may be had on a proper showing—in only one case may the seal of confidence between a client and his attorney be broken and then only by the client — for unless so waived the court is otherwise powerless to obtain it. The co-ordinate branches of government have no greater or different power in this regard.

It has been asserted that the seal is broken in this instance by the circumstance that the recording was made by a depart

ment of the executive branch and by them turned over to the Legislature, and that under the circumstances the courts are powerless to act. This is not so — the laws of the State apply with equal vigor to all members of society—not only to the citizen in his relation to his government, but to officials in the discharge of their duties in behalf of the citizen. The executive and legislative branches, no less than the judicial, are subject to the mandates and the obligations of the law. It has often been said that ours “ is a government of law and not of men ”. Now the Constitution, so far as I have been able to ascertain, makes no exception; by strong implication the rights of the individual are paramount — being subordinated only to the overriding needs of the general welfare. True, the Constitution does not in so many words make inviolate the confidences of a client and his attorney. However, in order to make certain that the constitutional mandate that no person shall be deprived of life, liberty and property without due process of law (N. Y. Const., art. I, § 6) have effect, the Legislature in its wisdom codified into the State law (Civ. Prac. Act, § 353) an absolute privilege. This salutary provision is a solemn declaration of State policy which all connected with the administration of government are duty bound to observe and make operative — there is no exception.

I submit that just as the courts are bound, so too are the legislative and executive branches of the government — the safeguards provided by law may not be flouted by either. It is a clumsy subterfuge to say that, because the inquiry is not judicial in nature, the Legislature is not bound to observe fundamentals in the discharge of its legislative function. Nothing could be further from the mark. When the citizen’s rights are disregarded, our cherished freedoms will end and the government will cease to exist “ of, for and by the people ”.

Several landmark cases have been pointed to in which the courts have intervened to protect the citizen in his property rights, including the restraint of a President of the United States. As a matter of simple truth, personal rights are of equal importance. The Constitution says so and that truth has now become part of our great tradition — the correctness of which is no longer open to challenge. The privilege attached to a conversation between a client and his attorney is as fundamental as anything can be in the administration of government.

The separation of powers is stressed to furnish a basis for creating an exception to the public policy enunciated in section 353. It has been said that the Legislature, whenever it sees fit, may abolish the privilege by repealing or amending the statute — an event which I am sure no member of any Legislature would ever sponsor and, if sponsored, would not support.

We must not lose sight of the undisputed fact that the conversation sought to be publicized was between a prisoner incarcerated in a jail and his attorney. Ostensibly, the prisoner could converse with his lawyer freely, confidentially and in private, without fear of reprisal. As it turns out he had neither freedom, confidentiality or privacy. To ‘ ‘ bug ’ ’ a conversation under such circumstances may not be excused under the guise of prison security. To say so is an affront to the members of the Bar and is a reproach to our governmental system, for to do so is in clear violation of the announced public policy of the State. Lawyers, we must remember, are officers of the court. To sanction disclosure of conversations had with the client— unless waived — strikes at an institution which is far more sacred than the need that legislative inquiries be public. The complaint, as I read it, states a cause of action.

The judgment appealed from should be reversed and the motion atacking its sufficiency should be denied.

Fuld, J. (dissenting).

I, too, am for reversal, for I do not believe that the courts of this state are helpless to prevent the consummation of a practice so offensive and repugnant as the one disclosed by the papers before us.

It is quite true that in this state evidence, though illegally obtained, is admissible, and it is also true that the statutory provision which protects from disclosure client-attorney communications is aimed at the attorney and not at third persons who may have overheard or learned what transpired at the privileged conference.1 But in this case we deal with something quite different, something quite unprecedented.

In other cases that have arisen, the evidence was potentially admissible; it could have been obtained properly by means of a search warrant or by means of an order permitting interception of telephonic communications. That is not true of the “ evidence ” with which we are now concerned; here, a search warrant could not possibly have been procured to obtain such evidence, and no order could possibly have been obtained to tap a lawyer’s telephone and permit the interception of communications between such lawyer and a client in order to intrude upon privileged conversations.

It cannot be too strongly emphasized that this is not the simple case of a third person eavesdropping on two people who, in this telephonic and electronic age, might be expected to anticipate interception and recording of their conversations. This is a ease where the state, or one of its subdivisions, actually invited an attorney into a room so that he and his client might carry on their confidential business in private — indeed, there was no other place where the client could consult with counsel — and, despite the invitation and despite the more basic guarantee of privilege and confidentiality granted by statute, recorded what was said and then, some time later, turned the record over to another branch of state government. It cannot be the law that the state may be a party to such a practice and urge that nothing may be done, when the recording is sought to be introduced into evidence, to prevent disclosure and publication of its contents.

Although I have come on no case involving an occurrence similar to that before us, and that, of course, is readily understandable, this court has had occasion to consider and condemn occurrences not too unlike it and, in my view, those decisions require a reversal and a judgment sustaining the complaint. (See People v. Cooper, 307 N. Y. 253, 259; Matter of Fusco v. Moses, 304 N. Y. 424; see, also, Coplon v. United States, 191 F. 2d 749.) In these cases, the asserted impropriety occurred during the pendency of a hearing or a prosecution against the client, while in the present case no litigation was pending against the client when the prison authorities recorded his talk with his lawyer. However, the client was then actually under investigation by the parole authorities, if not by other agencies, and, accordingly, the intrusion upon the conference, supposedly private and secret, constitutes the interference and invasion

of a person’s right to counsel which the courts have always condemned. I repeat what this court declared in People v. Cooper (supra, pp. 259-260), “ Intrusion upon a client-lawyer conference, whether in the privacy of an office or at the counsel table in court, contravenes our sense of traditional fair play and due process and is particularly offensive where defendants have sought to keep their conversations and communications secret and confidential . To cull from what was said in Coplon v. United States (supra,* 191 F. 2d 749, 759, certiorari denied 342 U. S. 926), ‘ The prosecution is not entitled to have a representative present to hear the conversations of accused and counsel.’ ”

Once it be decided that disclosure and publication of the recorded client-attorney communication impinge on fundamental guarantees, it cannot be that our courts are powerless to prevent the contemplated action. It is to the people of the state that the judiciary owes a duty, and it must ever be alert, to restrain incursions on rights fundamental to individual freedom. Accordingly, when members of a committee of the legislature, in the conduct of a public hearing, misconceive constitutional or basic principles, a court cannot, when its jurisdiction is invoked, refuse to voice an opinion or decline to take action appropriate to the situation presented, however much it may differ from that of the committee.

I would add one further thought in view of a contention advanced by the defendants. It may well be that the communication between the plaintiffs was not privileged, that either there was no relationship between them of client and attorney or, if there was such a relationship, the subject matter was such as to deprive the communication of the privilege and cloak of confidentiality. However, on the strength of the allegations of the complaint, which must be considered as true at this stage of the litigation, we deal with a true client-attorney relationship and a communication unquestionably protected.

The judgment dismissing the complaint should be reversed.

Conway, Ch. J., Van Voorhis and Burke, JJ., concur with Froessel, J.; Desmond, Dye and Fuld, JJ., dissent in separate opinions in which each concurs.

Upon appeal from judgment: Judgment affirmed.

Upon appeal from order denying temporary injunction: Appeal dismissed.