The opinion
NIX, Judge
(concurring).
Though I am in accord with the POWELL opinion, I feel compelled to comment upon certain questions of law presented by this case, which I deem to be of the utmost importance to our jurisprudence.
*185 The urge to comment on this matter is driven by the desire to alert the courts of the injustice that might prevail if an attorney betrays his client’s confidence and uses against him, that which was believed to be privileged. Though the rule may have been applied in a case where the crime charged was heinous in its conception and fiendish in its execution, once the rule is adopted it may well haunt the court in future cases, thereby opening the door for great wrongs to be done by those who would discard ethics of the profession of law.
Plaintiff in error contends that the court was in error by permitting Frank Massad, an attorney, who Hurt contends represented him during early stages of the case, to testify as to matters related to him by Hurt. It appears from the record that Mas-sad did serve as attorney for Hurt but was later let out — not fired, but as put by Hurt “just kinda eased him out.” Some time later, Massad placed upon himself a tape recorder concealed beneath his clothing, called Hurt. They met, rode around in a car, stopped and had a sandwich. During all this time, unknown to Hurt, the conversation was being recorded by Massad, Hurt’s former attorney. It is obvious from the transcribed recording that Massad propounded many questions of a surreptitious nature and thereby elicited from Hurt conversation which he desired. During the trial of Hurt, Massad was permitted to testify as to the contents of the recording which in the opinion of the writer was most damaging to the defendant. After Massad testified and identified the recording, it was edited and introduced in evidence. Massad denied being the attorney for Hurt at any time, but an examination of the record can leave little doubt that he was acting as attorney for Hurt during a part of the time before and after charges were filed against the defendant. Several witnesses, including a court reporter, newspaper man, and district judge testified Massad represented Hurt on the 18th of May, 1954, In re Habeas Corpus of Hurt arising out of these charges. An attorney, Wayne Wheeling, who officed in the same suite with Massad, testified that Mr. Hurt was a frequent visitor to Mas-sad’s office and he knew Massad was acting as Hurt’s legal advisor. Hurt testified he had 75 to 100 conversations with Massad, considered him his attorney and at the request of Massad purchased a recording device for Massad to use in connection with his case. That Massad represented him at arraignment and to make bond. Massad was listed on the docket in Justice court as one of the attorneys for Hurt. Though Massad denied this, the evidence was clearly to the contrary. Even excerpts from the tape recording elicited by Massad from Hurt verified attorney-client relationship. (CM 702, date Oct. 20,1954)
“Massad: Have you talked to Dave about them subpoenaing me?
“Hurt: Oh, he talked to me a half a dozen times about that. But I don’t know what angle he’s shootin’, but he told me you * * * sure couldn’t testify.
“Massad: Well, ah, I can’t see it either, Bob. Now look, I know the law says this: that a privileged communication between attorney and client, when the privilege is invoked, can be made public only by the client, and not by the lawyer.”
Surely in view of this statement recorded by Massad, and introduced by the state, Massad’s position, even as late as October 20, 1954, was made clear as Hurt’s attorney, to the extent, that the communication was privileged in his opinion. However, this matter was passed on by the trial judge, then said cause was appealed to this court and the matter affirmed and consequently res judicata and cannot be considered by this court under coram nobis proceeding. Your writer was not a member of the court at the time the case was affirmed. I do not agree with the court’s opinion in affirming the appeal as far as Massad’s testimony being competent; undoubtedly it was a deciding factor in the minds of the jury. I definitely think it was privileged communication and should have been excluded. *186 To have held otherwise in my opinion, did violence to the time honored principle of confidential relation between attorney and client. If the dignity of the law of profession is to be preserved, a client who has become involved with the law must feel at liberty to advise and counsel with an attorney in regard to said infractions and to communicate with him freely, with the utmost confidence and assurance, that the communications cannot be divulged as evidence without the consent of the client. It has long been the duty and business of those engaged in the practice of the profession of law when engaged and relied upon for that purpose, to counsel with and give advice to those who have been charged with an infraction of the law, and to enable the attorney to properly advise and represent the client in court, or when prosecutions are threatened, it is conducive to the dignity of the law profession, and to the administration of justice, that the client shall be free to communicate to his attorney, all the details and facts directly or indirectly pertinent within his knowledge, to his attorney and that he must be cloaked with greater protection than the confidence vested in his attorney; but in addition thereto be assured under the law that said com.-munications made by him shall not be used to his prejudice. The seal of silence is upon it, subject to be broken, by the consent of the client only.
The court justified its opinion upon the theory that though Massad, during parts of the case, was Hurt’s attorney, the relationship of attorney and client had ceased to exist at the time Massad, through use of artifice, recorded the conversation between him and Hurt. I feel better law would have prevailed had the court followed the law handed down by many other jurisdictions and recited in 58 Am.Jur. § 467:
“Ordinarily the protection given by the law to communications made during the relationship of attorney and client is perpetual and does not cease with the termination of the suit, nor is it affected by the party’s ceasing to employ the attorney and retaining another, or by any other change of relations between them, or by the death of the client. The seal of the law once fixed upon them remains forever, unless removed by the party himself in whose favor it is there placed.”
To your writer this language is clear, simple, just and right, but unfortunate as it may be, the court has adopted the contrary and the hand that writ has moved on and this court as it is now composed is helpless to review the matter under the pleadings before us. We have done considerable research on coram nobis as Judge POWELL’S decision so amply reflects, and are all in agreement with the limitation of that which can be considered by way of coram nobis.
The authorities contend the ancient remedy of coram nobis, though having a definite place in keeping with innumerable decisions, by the courts in which due process rendered, has been affirmed and expanded as one of the bulwark of American liberty, yet it was never intended to provide litigants with a substitute for appeal, a new trial or other statutory remedy, nor can it be used for the purpose of correcting errors of law. In its early usage, criminal cases were not the usual meter of this writ. However, the courts in their cautious preservation of human liberty have been most receptive to remedies contemporary or ancient in order that justice might be best served. However, coram nobis must not be the instrument by which litigation might be drawn out over endless periods by subjecting the judiciary to the task of reviewing matters time and time again that have long since been res judicata.
I am in full accord with the opinion of Judge POWELL as to the denial of relief upon the issues which we are permitted to-consider under the writ of coram nobis. However, I trust the matter relative to privilege communication between attorney and client will be reviewed by the Supreme Court of the United States and clarified.