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way Co. V. Owens, 20 Colo. 107, 36
Pac. 848.

63. McDonald v. McDonald, 142
Ind. 55, 41 N. E. 336. In this case,
referring to question of relation, the
court says : " This, however, was a
matter of fact for the court to de-
termine, we think, from the facts,
after hearing them, bevond the jury."

64. Childs V. Merrill, 66 Vt. 302,
29 Atl. 532.

65. Relation Denied by Client.
In re Mellen, 18 N. Y. Supp. 515;
Schurtz V. Romer, 82 Cal. 474, 23
Pac. 118.

66. Contra. _ Gulf, C. & S. F. R.
Co. V. Gibson (Tex. Civ. App.), 93
S. W. 469.

67. Brinkerhoff 7'. Peek, 114
^lich. 628. 72 N. W. 621.

In case where attorney and a cer-
tain person contradicted each other
as to existence of relation, held that
attorney's testimony was admissible,
apparently upon the ground that the
trial court believed the attorney.
Reese v. Bell, 138 Cal. xix, 71 Pac. 87.

68. State v. Calhoun, 50 Kan.
523. 32 Pac. 38. 34 Am. St. Rep. 141,
18 L. R. A. 838. This was a pro-



PRIVILEGED COMMUNICATIONS.



229



ceeding in the nature of a writ of
error coram nobis to revoke sen-
tences passed upon plaintiff. The
state claimed that error was com-
mitted in excluding the testimony of
K., an attorney, on the ground that
a conversation testified to was had
while K. was acting as plaintiff's at-
torney. Plaintiff testified, in a depo-
sition given seven years after the
conversation, that K. never was his
attorney. K. testified that when the
conversation was had he was plain-
tiff's attorney. On objection of
plaintiff, K.'s testimony was ex-
cluded. This ruling was held cor-
rect. The appellate court held that
it was for the trial court to deter-
mine whether or not the relation of
attorney and client existed. The
court further held that plaintiff was
not conclusively bound' by his state-
ments made in his deposition, but
had the right, through his counsel,
to show by the testimony of the
proposed witness that the relation of
attorney and client did in fact exist.
In M'Intyre v. Costello, 6 N. Y.
Supp. 397, widow claimed dower in
certain lands conveyed by her hus-
band. It was claimed that the hus-
band had bought the land in ques-
tion from his sister, taking title in
his own name. The attorney who
prepared the deed by which the hus-
band acquired title was offered as a
witness to testify to declarations
made to him by the husband prior
to his acquisition of title, as well as
subsequent declarations to the effect
that the land belonged to the sister.
The attorney testified that he acted
for both parties to the deed, after-
wards attempting to qualify this by
stating that he acted for grantor and
grantee (husband) or the person for
whom grantee was transacting the
business — adding "That is. his sis-
ter." He added that he never saw
the sister in the matter, that he was
general attorney for the husband,
who paid him for this particular
servnce. Witness was permitted to
testify to declarations and admis-
sions of husband as to ownership of
the land. Held, that the admission
of this testimony constituted error.
Conflict Between Attorney and

Client as to Relation In Davis v.

Morgan, 19 Mont. 141, 47 Pac. 793,



an attorney's testimony was intro-
duced to the effect that a certain per-
son consulted him as to so transfer-
ring certain personal property as to
avoid the levy of an execution. The at-
torney testified that the consultation
was had, but that he did not con-
sider this consultation and the advice
which he gave as constituting the
relation of attorney and client, that
nothing was said about a fee, and
he did not regard himself as at-
torney for the other person when he
advised him. The other person tes-
tified that he consulted the attorney
as such and for the purpose of ob-
taining his professional opinion. On
motion the attorney's testimony was
stricken out. This ruling was held
correct. The supreme court says :
" The omission to pay a fee is not
the only test of whether such a re-
lation may have existed."

Where testimony of an attorney is
objected to on the ground that it will
disclose confidential communication,
and the attorney testifies that he was
not the attorney for the person making
the communication, and the circum-
stances under which it was made
show that he was not, his testimony
is admissible. Sharon v. Sharon, 79
Cal. 633, 678, 22 Pac. 26, 131.

Evidence Conflicting — Attorney

Permitted to Testify Where it is

claimed that an attorney acted for
all parties to a transaction, and the
evidence on the subject is conflicting,
the attorney will be permitted to
testifj' as to statements made by the
parties during the transaction. Har-
ris V. Daugherty, 74 Tex. i, 11 S. W.
921, 15 Am. St. Rep. 812. In this
case an attachment had been levied
on certain live stock as the property
of S. H. claimed the property and
brought proceedings to try the right
of property. H. claimed under bill
of sale executed by S. Plaintiff
claimed that the bill of sale was
made to hinder, delay and defraud
creditors of S. The attorney who
drew the bill of sale was offered as
a witness to show statements of S.
made at the time the bill of sale was
drawn. His testimony was objected
to. It appeared that H. and S. were
present when the bill of sale was
drawn, and that after the institution
of the proceedings to try the right of

Vol. X



230



PRIVILEGED COMMUNICATIONS.



cerning information acquired from a certain person is in doubt as
to existence of the relation of attorney and client between them, he
should decline to testify,'^'' or his testimony should be excluded.'^''

n. Privileged, if Relation Believed to Exist. — It has been held
that if a person seeking professional assistance makes statements to
an attorney believing that the attorney is acting for him, such state-
ments are privileged/^

o. Relation Wrongly Assumed. — It has been held that, if attor-
ney, in violation of duty, acts as attorney for a certain person, their
communications are not privileged.^-

D. Communication Must be; Made; While; Relation Exists.
It is essential that the communication be made while the relation of
attorney and client exists, or during a conference held for the pur-
pose of forming the relation.'^^



property, the attorney was employed
by H. It also appeared that the at-
torney accepted employment from H.,
believing that it would not conflict
with the interest of S., for whom
he considered himself retained, he
having been S."s attorney prior to
that time, and having continued to be
such. It also appeared that before
the trial the attorney received from
S. a letter waiving privilege, and
consenting that he might make full
disclosure. H. testified that he em-
ployed the attorney to draw the bill
of sale and paid him for it. S. and
the attorney testified that S. was the
employer. Held, that the attorney's
testimony as to statements made by
H. when the bill of sale was drawn
was properly admitted.

69. People v. Barker. 56 111. 300.

70. Myers v. Dorman, 34 Hun
(N. Y.) 115.

71. Relation Believed to Exist.
Carroll v. Sprague, 59 Cal. 655 ;
People V. Barker, 60 Mich. 277, 27
N. W. 539. 546, I Am. St. Rep. 501 ;
People V. Pratt, 133 Mich. 125. 94 N.
W. 752, 67 L. R. A. 923, Sheehan
V. Allen, 67 Kan. 712. 74 Pac. 245.

In Alderman v. People, 4 Mich.
414, 69 Am. Dec. 321, it is held that a
communication which a person
makes to an attorney under the im-
pression that the attorney has con-
sented to act for him is privileged,
although the attorney did not so un-
derstand and denies that he agreed to
act for such person. In this case
several persons were indicted for
conspiracy. One of them, having

Vol. X



turned state's evidence, was asked as
to a conversation he had had with
an attorney. Witness testified that
the attorney had agreed to act for
him. The attorney testified that he
had declined to act as attorney for
the witness. The trial court refused
to require the witness to testify to
a conversation between himself and
the attorney. On appeal this ruling
was held correct. The supreme
court says : " We have no doubt that
if a communication should be made
to an attorney in fact, by a party,
under an impression that such at-
torney had consented or agreed to
act as the attorney of such party,
that such communication would be
privileged, although the attorney
himself may not have so understood
the agreement."

72. In Tugwell v. Hooper, 10
Beav. 348, 50 Eng. Reprint 616,
an attorney was appointed trustee
for two persons. In a contest be-
tween two beneficiaries the attorney
claimed that he had acted as at-
torney for one of them, and that
their communications were privil-
eged. The court held that the at-
torney, being trustee for both par-
ties, could not act as adviser to one
of them, and that, as to the other
beneficiary, communication between
attorney and his client were not
privileged.

73. Such relation must be exis-
tent or in contemplation at the time
the communication is made.

Georgia. — Skellie v. James, 81
Ga. 419, 8 S. E. 607.



PRIVILEGED COMMUNICATIONS.



231



a. Communications Made Prior to Relation Are Not Privileged.'*

b. Subsequent. — Communications made after termination of re-
lation are not privileged/^



Indiana. — -Jennings v. Sturde-
vant, 140 Ind. 641, 40 N. E. 61.

loiva. — Theisen v. Dayton, 82
Iowa 74, 47 N. W. 891.

Kansas. — Robinson's Exrs. v.
Blood's Heirs, 10 Kan. App. 576, 62
Pac. 677.

Massachusetts. — Hoar v. Tilden,
178 Mass. 157, 59 N. E. 641.

Missouri. — Wilson v. Godlove, 34
Mo. 337- ^

New York. — Yordan v. Hess, 13
Johns. 492.

Tennessee. — Ellis v. State, 92
Tenn. 85, 20 S. W. 500.

In Brown v. j\Iattliews, 79 Ga. i,
4 S. E- 13, the court says : " The tes-
timony which rendered it certain that
the deceased had procured Hardison
to amend his deed to the defendants
by inserting therein the premises now
in dispute, was that of Mr. Haygood,
an attorney at law, who detailed a
conversation which he had with the
deceased and his brother, or rather,
which they had with him, touching
the matter. This testimony was ob-
jected to as disclosing knowledge
acquired under the seal of profes-
sional confidence. We agree with
the court below in thinking that
Haygood was neither employed pro-
fessionally, nor consulted with a
view to employment. He was
' raided,' not retained. To exclude
declarations as communications to
counsel, or made with a view to em-
ployment, their root in the relation,
or contemplated relation, of client
and attorne}^ must be manifest. They
must be the offspring of the relation,
present or prospective, not of taking
or expecting to take the fruits of
such a relation without forming it.
To tax a lawyer's courtesy or liber-
ality for advice or services is not to
employ him. Generally, the test of
employment is the fee.''

74. Prior to Employment — Non-
Privileged. — England. — Vaillant v.
Dodemead, 2 Atk. 524, 26 Eng. Re-
print 715; Cutts V. Pickering, Ventr.
197, as cited in note to Vaillant v-
Dodemead, supra, in Vol. 26, p. 715,
English Reprint; cited to same effect



by Lord Brougham in Greenough v.
Gaskell. 11 Myl. & K. 98, 107. 39
Eng. Reprint 618; Bulstrod r. Letch-
mere, 2 Freeman Ch. 5 (case 4), 22
Eng. Reprint 1019.

Alabama. — Johnson v. Cunning-
ham, I Ala. 249; Crawford v- Mc-
Kissack. i Port. 433.

Georgia. — Chappell & Co. v.
Smith, 17 Ga. 68.

Indiana. — Jennings v. Sturdevant,
140 Ind. 641, 40 N. E. 61.

lozi'a. — State v. Swafford, 98 Iowa
362, 67 N. W. 284.

Missouri. — Gerhardt v- Tucker,
187 Mo. 46, 85 S. W. 552.

Nezv York. — Baker v. Arnold, i
Caines 258.

North Carolina. — State v. Smith,
138 N. C. 700, 50 S. E. 859.

South Carolina. — Stoney v. M'-
Neil, Harp. Law 557, 18 Am.
Dec. 666.

Texas. — Harris v. Daughertv. 74
Tex. I, II S. W. 921, 15 Am. St.
Rep. 921 ; Simmons Hdw. Co. v.
Kaufman, 77 Tex. 131, 8 S. W. 283.

In Theisen v. Dayton, 82 Iowa 74,
47 N. W. 891, an attorney was em-
.plo\'ed to draw a conveyance of land
purchased by his client- His em-
ploj-er wished to retain him to render
services in the future concerning the
property conveyed, which employ-
ment the attorney refused. Held,
that what was said in regard to the
future employment was not privi-
leged in an action in which the con-
veyance was in question.

75. Subsequent to Relation.

Georgia. — Philman v. Marshall,
103 Ga. 82, 29 S. E. 598.

Illinois. — Chillicothe Ferry R. &
B. R. Co. V- Jameson, 48 III' 281.

Indiana. — Doan v. Dow, 8 Ind.
App. 324. 35 N. E. 709-

Kansas. — State v. Herbert, 63
Kan. 516, 66 Pac 235.

Louisiana. — Williams, Phillips &
Co. z'. Benton, 12 La. Ann. 91.

Nezv York. — IMarsh v. Howe, 36
Barb. 649; Mandeville v. Guernsey,
38 Barb. 225.

Communications Subsequent to
Relation — In Yordan z'. Hess, 13

Vol. X



232



PRIVILEGED COMMUNICATIONS.



c. Former Employment Not Sufficient. — The fact that an attorney-
had, prior to the time of making the communication in question,
acted as such for a certain person in all or some of his business
transactions, is not sufficient to entitle such communication to priv-
ilege, if it appears that the attorney was not so acting in the matter
to which the communication related.'*^

d. That Statement Repetition of Privileged Statement, Imma-
terial. — The fact that statements the same as, or similar to, that
in question were made while relation existed, does not render incom-
petent statements made, or voluntarily repeated, after termination of
relation."^

e. N'egotiations for Employment. — Privilege extends to state-
ments made in the course of negotiations for the employment of
an attorney.'^

Negotiations by Third Person. — But if negotiations are made by a
person claimed to have been acting as agent for the person alleged



Johns. (N. Y.) 492, it is held that
statements made to attorney by one
who had once been his client, but
between whom and the attorney the
relation had ceased to exist at the
time communication was made, were
not privileged. And this, although
the statements may have been but
repetitions of communications made
while the relation existed. But the
court states that if a repetition of the
statement appears to have been
elicited by an artifice, for the pur-
pose of being used as evidence, the
evidence should not be received.

In Hager v. Shindler, 29 Cal. 47,
a person convej^ed certain property
to his attorney, who, in turn, con-
veyed it to a third party. In an ac-
tion to set aside these deeds, on the
ground of fraud, the attorney was
called as a witness to show that both
the deed to him and the deed by him
were made without consideration.
Questions were objected to as call-
ing for disclosure of privileged com-
munications. Objections were over-
ruled, and, on appeal, this ruling was
held correct, on the ground that the
communication as to the first convey-
ance was made to witness not as at-
torney but as trustee, and as to the
second conveyance, the relation of
attorney had ceased to exist.

Statement of client to attorney af-
ter termination of action, to effect
that he, client, is pleased with the

Vol. X



result of the action, is not privileged.
Cobden v. Kendricks, 4 T. R. 431.

76. Indiana — Thomas v. Griffin,
I Ind. App. 457, 27 N. E. 754-

Kansas. — State v. Herbert, 63
Kan. 516, 66 Pac. 235.

Missouri. — Wilson v. Godlove, 34
Mo. 32,7; Aultman v. Daggs, 50 Mo.
App. 280. 299.

Nebraska. — Home F. Ins. Co. v.
Berg, 46 Neb. 600, 65 N. W. 780.

New York. — People v. Hess. 8
App. Div. 143. 40 N. Y. Supp. 486.

North Carolina. — Eekhout v. Cole,
135 N. C. 583, 47 S. E. 655.

Pennsylvania. — In re Turner's
Estate, 167 Pa. St. 609, 31 Atl. 867.

Te.vas. — Flack's Admr. v. Neill,
26 Tex. 273.

That Relation Once Existed Not
Sufficient. — In Harless v. Harless,
144 Ind. 196, 41 N. E. 592, it is said
that it is not enough to exclude a
statement that the relation of at-
torney and client once existed be-
tween witness and a certain person,
so long as it is not proposed to prove
by witness confidential communica-
tions made in the course of his em-
ployment.

77. Brady v. State, 39 Neb. 529,
58 N. W. 161 ; Yordan v. Hess, 13
Johns. (N. Y.) 492.

78. Farley v. Peebles, 50 Neb. 723,
70 N. W. 231 ; Nelson v. Becker, 32
Neb. 99, 48 N. W. 962; State v.
Snowden, 23 Utah 318, 65 Pac. 479.



PRIVILBGBD COMMUNICATIONS.



233



to occupy the relation of client, it must appear that such person
authorized the employment/^

f. Statement to Third Party of Intention to Employ. — Privilege
does not extend to statements that a person intends to employ a
certain attorney, although made to another attorney with whom
the attorney in question was associated.^^

E. Communication Must Have Been Made by Reason oe Re-
lation. — It is also essential that the communication be made by
reason of the existence of the relation of attorney and client.*^

Information Presumed Acquired by Reason of Relation. — Communi-
cations made to an attorney by a third person, and relating to evi-
dence in a pending cause in which he is engaged, are presumed to
have been made to him in his professional capacity.^^



79. Sharon v. Sharon, 79 Cal. 633,
678, 22 Pac. 26, 131.

80. Baker v. Jackson (Ala.), 40
So. 348.

81. England. — Morgan v. Shaw,
4 Madd. 54, 56 Eng. Reprint 629.

Alabama. — KHng v. Tunstall, 124
Ala. 268. 27 So. 420.

Georgia. — Chappell & Co. v.
Smith, 17 Ga. 68; McDougald v.
Lane, 18 Ga. 444; Brown v. Mat-
thews, 79 Ga. I, 4 S. E. 13 ; Skellie
X'. James, 81 Ga. 419, 8 S. E. 607;
Harkless v. Smith, 115 Ga. 350, 41
S. E. 634.

Iowa. — Reinhart v- Johnson, 62
Iowa 155, 17 N. W. 452.

Massachusetts. — Hoar v. Tilden,
178 Mass. 157, 59 N. E. 641.

Nebraska. — Clay v. Tyson, 19
JSIeb. 530, 26 N. W. 240.

Texas. — Taylor v. Evans (Tex.
Civ. App.), 29 S. W. 172.

Vermont. — State v. Fitzgerald, 68
Vt. 125, 34 Atl. 429.

If it may be fairly inferred that
■communications were induced by the
fact of relationship, they are privi-
leged. Bacon v. Frisbie, 80 N. Y.
394, 36 Am. Rep. 627 ; Myers v. Dor-
man, 34 Hun (N. Y.) 115.

82. Young V. Holloway, 57 L- T.
N. S. (Eng.) 515. In this case the
court says : " The affidavit here ap-
pears to me to be drawn in a way
which ought not to be taken as a
precedent. If we were to hold the
plaintiff strictly to her affidavit, I
think the affidavit is defective ; but
we must deal with the case upon
broad principles, and must read the
affidavit by the light of the admis-



sion of the opposite parties — that
there is no other cause for which
these letters can be suggested to have
been sent to the solicitor and counsel,
except the mere cause that they were
the solicitor and counsel at the time
in this action. If these letters had
reference to the case in which they
were solicitor and counsel, and if
the true inference is that they were
sent to them as such, the affidavit
must be treated as if it had stated
that inference on oath, which I think
would be done if we allowed an ad-
journment for the purpose. If then
we draw that inference upon the affi-
davit as it stands, we have simply to
ask ourselves the question whether
the fact that a letter was volunteered
by a person who wrote and sent it
to a solicitor because he was a soli-
citor, and for the purpose of the doc-
ument being held by him as solicitor,
differentiates this from the ordinary
case where a solicitor has procured
documents in the course of his em-
ployment. It appears to me that
there is no such difference, and in
reality there was as much an invi-
tation to the person who sent these
letters as if the solicitor had written
to the person and expressly asked for
them. His character as solicitor was
an indication to the world that all
information which was honest, bona
fide, and material for the purposes of
the cause might be sent to him, ought
to be sent to him, and would be re-
ceived by him on behalf of his client.
Therefore he received those letters
confidentially for his client, not for
himself or for any other purpose, and

Vol. X



234



PRIVILEGED COMMUNICATIONS.



F. CoNFiDKNTiAi.. — It is also essential that the communication:
in question was confidential,^^ and so regarded by client.^*

Client's Belief Sufficient. — It has been held that communications
relating to matters which are ordinarily the subject of professional
advice are privileged, when made by client in the course of trans-
acting his business, to his attorney, and believed by him to be con-
fidential, although the attorney may have regarded what was said
in the light of a casual conversation.**^ So, if under belief that it



I think received them for the very
reason that he was professionally
employed. Therefore this case falls
within the principle laid down by
Lord Blackburn in Lyell v. Kennedy,
and by many other judges."

83. England. — Bunbury v. Bun-
bury, 2 Beav. 173, 9 L. J. Ch. N. S.
I, I Beav. 318, 48 Eng. Reprint
1 146; Marsh v. Keith, i Dr. & S-
342; s. c. 30 L. J. Ch. 127, 3 L. T.
498, 62 Eng. Reprint 410; Cotman v.
Orton, 9 L. J. N. S. Ch. 268; Park-
hurst V. Lowten, 2 Swanst. 194, 216,
36 Eng. Reprint 589.

Alabama. — Kling v. Tunstall, 124
Ala. 268, 27 So. 420.

California. — Sharon v. Sharon, 79
Cal. 633, 678, 22 Pac. 26, 131 ; Hager
V. Shindler, 29 Cal. 47.

Georgia. — Burnside v. Terry, 51
Ga. 186.

Illinois. — Tyler v. Tyler, 126 111.
525, S41, 21 N. E. 616, 9 Am. St.
Rep. 642.

Indiana. — Harless v. Harless, 144
Ind. 196, 41 N. E. 592.

Iowa. — Caldwell v. Meltveldt, 93
Iowa 730, 61 N. W. 1090; State v.
Kidd, 89 Iowa 54, 56 N. W. 263.

Kansas. — In re Elliott (Kan.), 84
Pac. 750.

Louisiana. — Reeves v. Burton, 6
Mart. N. S. 283.

Missouri — Henry v. Buddecke,
81 Mo. App. 360.

Montana. — Smith v. Caldwell, 22
Mont. 331, 56 Pac. 590.

Nebraska. — Elliott v. Elliott
(Neb.), 92 N. W. 1006.

Nezv Hampshire. — Brown v. Pay-
son, 6 N. H. 443.

New York. — King v. Ashley, 96
App. Div. 143, 89 N. Y. Supp. 482,
affirmed 179 N. Y. 281, 72 N. E. 106.

Pennsylvania. — Levers v. Van-
Buskirk, 4 Pa. St. 309; Heaton v.
Findlay, 12 Pa. St. 304; Kramer v.

Vol. X



Kister, 187 Pa. St. 227, 40 Atl. 1008,
44 L. R. A. 432.

Utah. — State v. Snowden, 23 Utah
3 1 8, 6s Pac. 479.

Vermont. — Earle v. Grout, 46 Vt>

113. 125-

Wisconsin. — Aultman & Co., v^
Ritter. 81 Wis. 395, 51 N. W. 569.

"The purpose of the provision of
law is, no doubt, to secure to liti-
gants ample protection against any
breach of the proper confidence which
it is necessary that they should re-
pose in their legal advisers. It may
therefore be argued that the word
" confidence," as used in the code,
properly was intended to apply to
any facts, the knowledge of which
was acquired by the attorney in the
course of his dealings as attornej'
with his client, whether the knowl-
edge of such facts was acquired by
word or writing, or in any other
manner." McClure v. Goodenough,
12 N. Y. Supp. 459. The context
shows that the word " argued " is
used by the court in the sense of
" assumed " or " concluded-"

84. R e g a r d e d as ConfidentiaU
Sharon v. Sharon, 79 Cal. 633. 678,
22 Pac. 26, 131. In re Elliott
(Kan.), 84 Pac. 750.

85. Moore v. Bray, 10 Pa. St. 519;
Sheehan v. Allen, 67 Kan. 712, 74
Pac. 245. In this latter case it was
attempted to be shown by two at-
torneys that a certain person was in-
sane. It appeared that he had con-
sulted each of them as to matters
usually discussed with lawyers, but
each testified that, on account of such
person's condition, he had made no
charge, and had not considered the
relation as existing. Each admitted
professional relations, and one con-
ceded that the person in question
acted upon a belief in the existence
of the relation. The court says : " In



PRIVILEGED COMMUNICATIONS.



235



is necessary, client inserts unnecessary matter in privileged writ-
ing, it is privileged. ^'^

a. Whether or Not Confidential. — Hoiv SJiozvn. — Whether or
not a particular communication was confidential is a matter to be
established by evidence,^' or by an application of the maxims and
principles which usually control human action.^^

Confidential or Not, Inference. — Whether or not a given communi-
cation was confidential, may be inferred from (i) the nature of the
communication; (2) the circumstances under which it was made.

(1.) Nature of Communication (A.) Matters To Be Communicated



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