Opinion
No. 70-730
Decided December 16, 1970.
Evidence — Attorney participating in inquiry under Rule XVIII of Supreme Court — Witness before grand jury — Must testify to matters under inquiry — Proceedings under Rule XVIII private — Habeas corpus — Writ denied, when.
1. Rule XVIII(20) of the Rules of Practice of this court, which states that "all proceedings and documents relating to complaints and hearings thereon and proceedings in connection therewith shall be private * * *" is a mandatory provision.
2. The purpose and intent of such rule is to protect the member of the legal profession whose reputation is in issue during inquiry proceedings, and it is designed to encourage persons to give information in relation to disciplinary investigations conducted under the authority of this court.
3. A grand jury may compel the appearance of witnesses, may compel the presentation to it of documents, and may compel witnesses to testify on matters under investigation. (R.C. Chapter 2939.)
4. The investigations and deliberations of a grand jury regarding the commission of offenses must be conducted in secret, and all such proceedings must be legally sealed against divulgence.
5. An attorney who participates in conducting an inquiry under Rule XVIII of the Rules of Practice of this court, and who is subpoenaed to appear before a grand jury to testify as to matters disclosed in such inquiry, is required to testify in accordance with such subpoena.
6. Divulgence of the secret proceedings of a grand jury by any person affronts the dignity and authority of the court under the supervision of which the grand jury was impaneled, unless such person is called upon by the court to make such a disclosure.
IN HABEAS CORPUS.
This action in habeas corpus was initiated in this court, and is before the court on a demurrer which we consider as a motion to dismiss under the Ohio Rules of Civil Procedure (effective July 1, 1970). It is agreed that the ruling thereon is dispositive.
The petitioners, Robert Klausmeyer and John Getgey, are members of the Grievance Committee of the Cincinnati Bar Association. They were subpoenaed before the grand jury which is making an investigation of alleged criminal conduct relating to the Court of Common Pleas, Division of Domestic Relations, of Hamilton County. After the petitioners were sworn, they were asked questions pertaining to information, or the names of witnesses, which had been revealed in a similar investigation conducted by their committee. They refused to answer these questions, basing their refusal on Rule XVIII(20) of the Rules of Practice of this court. Rule XVIII(20) provides that "all proceedings and documents relating to complaints and hearings thereon and proceedings in connection therewith shall be private * * *." The petitioners stated that if they revealed such facts, they would be subject to disciplinary action by this court.
The Court of Common Pleas found them in contempt for refusing to answer such questions.
Messrs. Beirne, Wirthlin Manley, Mr. John S. Wirthlin, Messrs. McCaslin, Imbus McCaslin and Mr. Clement J. DeMichelis, for petitioners.
Mr. Melvin G. Rueger, prosecuting attorney, and Mr. Arthur M. Ney, for respondent, Dan Tehan, Sheriff of Hamilton County.
There are two issues presented in this case. The first is whether the information sought by the grand jury must be disclosed to that body. The second is whether such a disclosure constitutes a violation of Rule XVIII(20) of the Rules of Practice of this court.
The requirement of privacy in Rule XVIII(20) was intended to protect the attorney whose reputation is in issue in inquiry proceedings. The secrecy requirement encourages persons to furnish information to the investigators.
In the case at bar, the information sought was requested by the grand jury, the authority of which is not questioned. The inquisitorial powers of the grand jury, as well as the power to compel the attendance of witnesses and the presentation of documents, are incidents of state judicial power.
R.C. 2939.06 imposes an oath and obligation of secrecy upon grand jurors. R.C. 2939.07 serves as a reiteration of the General Assembly's mandate in this regard. Additionally, divulgence of the secret proceedings of a grand jury affronts the diginity and authority of the court under the supervision of which the grand jury was impaneled, unless such person is called upon by the court to make such a disclosure.
This court recognizes the difficult task which members of the Bar of our state are called upon to undertake in carrying on the investigation, preparation and presentment of complaints pertaining to the alleged misconduct of members of the legal profession. In these instances they give their time, energy and talent, for which they are to be commended. In this case, the petitioners performed their duties with the intent and purpose of investigating the alleged misconduct presented to them.
It is apparent, from a reading of the transcript, that the trial court considered the action of the petitioners solely as an effort to bring the issue of whether they may testify before the grand jury directly into focus. We consider the attitude of the petitioners in the same light. This court regards the writ of habeas corpus filed by petitioners merely as a legal procedure whereby they may obtain from this court instructions as to their obligations, if any, to testify before the grand jury.
We conclude that the giving of testimony by petitioners pursuant to the grand jury subpoena cannot be considered as a violation of the privacy requirement in Rule XVIII(20), because, as a matter of law, the grand jury must maintain the privacy of all information imparted to it. Therefore, the privacy required by Rule XVIII(20) is maintained.
The transcript of the testimony taken before the Common Pleas Court indicates that the petitioners were not opposing the authority, justice and dignity of the court under whose authority the grand jury was acting. In their capacity as members of the Bar Association's Grievance Committee, the petitioners refused to answer the questions solely because they believed themselves bound by the rule of privacy stated in Rule XVIII(20). This court adheres to the spirit and letter of that rule. However, we find that the refusal of the petitioners to testify was not a contumacious defiance of the Court of Common Pleas of Hamilton County.
The grand jury proceeding was adopted in this country and state, not only to bring wrongdoers to justice but also to provide protection against unfounded accusations regardless of whether they originated in governmental sources or were founded on private passion or enmity. 38 American Jurisprudence 2d 948, Section 2. Under our process of judicial administration, the secrets of a grand jury must be kept inviolate, unless a court of competent jurisdiction determines otherwise after special circumstances have been revealed in an appropriate hearing.
The very secretive nature of the proceedings by which a grand jury operates in this state is exactly the same upon which Rule XVIII(20) is founded. Because the proceedings of the grand jury are secret and may not be divulged by any person, this court finds the petitioners must appear before the grand jury and testify in accordance with the tenor of the subpoena. The information so given to the grand jury may not be revealed to any person other than the grand jury, and others who by law are permitted to listed to grand jury testimony.
We interpret the finding of the Common Pleas Court as basically an order issued against the petitioners in order to bring to this court this issue of the duty of bar association investigators acting pursuant to Rule XVII(20). As soon as the petitioners comply with the order of the trial court pursuant to the judgment of this court in this proceeding, they will be purged of contempt.
The costs are suspended.
Writ denied.
O'NEILL, C.J., WHITESIDE, CORRIGAN and LEACH, JJ., concur.
HERBERT and DUNCAN, JJ., concur separately.
WHITESIDE, J., of the Tenth Appellate District, sitting for SCHNEIDER, J.
HERBERT and DUNCAN, JJ., concur in all except the finding that petitioners are in contempt and in the final judgment.
Pursuant to their professional responsibilities, petitioners participated in the grievance investigation below. Under our rules, they were justified in fearing the consequences of divulging information acquired during that investigation. Hence, we find it inequitable to impose upon petitioners the stigma of having been adjudged to be in contempt of a court of this state.