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Rawlings, 27 Beav. 140, 5 Jur. (N.
S.) 667, 54 Eng. Reprint 5+

"The objection that evidence is a
disclosure of a privileged communi-
cation between attorney and client,
is founded upon proof of the fact
that the relation of attorney and cli-
ent existed." Harriman f. Jones,
58 N. H. 328; Equitable Securities
Co. 7'. Green, 113 Ga. 1013, 39 S.
E. 434; Hampson z'. Hampson, 26
L. J. N. S. Ch. 612.

It is not sufficient to show that
information was acquired " whilst
acting as solicitor " for a given per-
son. It must appear that it was
acquired by witness while acting pro-
fessionally. Thomas z'. Rawlings,
27 Beav. 140, 5 Jur. (N. S.) 667,
54 Eng. Reprint 54.

Where same person acts as solic-
itor and patent agent for a party,

Vol. X



334



PRIVILEGED COMMUNICATIONS.



must also show that the knowledge sought to be disclosed was not
obtained otherwise than in the course of confidential, professional
communication.'**

(2.) How Shown. — Facts showing whether or not the communica-
tion in question was privileged may be shown by examination, on
the voir dire of the attorney ofifered as a witness,*^ or by exam-
ination of the client.*®

(3.) Affidavit of Client. — In equity case, the court will permit cli-
ent to file affidavit showing that certain documents were by him
communicated to his attorney in confidence.*^ So, in response to
rule to produce documents, client may show by affidavit that they
are privileged.**

(4.) Testimony of Witnesses. — Client may call witnesses to show
that proposed testimony will result in disclosure of confidential
communications.*^

(5.) Presumption. — It will be presumed that all communications
between attorney and client relating to the matter which necessi-
tated the formation of their relation were confidential and privi-
leged.^'^ Also, that knowledge communicated to attorney by third



and the court holds communications
to patent agent to be non-privileged,
such party's affidavit in response to
discovery must show what communi-
cations were made to his agent as
solicitor, and what as patent agent.
Moseley v. Victoria R. Co., 55 L.
T. N. S. 482.

44. Sharon v. Sharon, 79 Cal. 633,
678, 22 Pac. 26, 131 ; Smith v. Cald-
well, 22 Mont. 331, 56 Pac. 590.

The ruling in Marriott v. Anchor
R. Co. (Ltd.), 3 Giff. 304, 8 Jur.
(N. S.) 51, 5 L. T. 545, 66 Eng.
Reprint 425, indicates an opinion
that party calling an attorney as
witness must show that his knowl-
edge was not obtained from client.
To same effect, see Parkhurst v.
Lowten, 3 Madd. 121, 56 Eng.
Reprint 455; s. c. 2 Swanst. 194, 36
E. R. 589. 56 Eng. Reprint 455;
Lewis V. Pennington, 29 L. J. N. S.
Ch. 670, 6 Jur. (N. S.) 478.

45. Facts as to Incompetency,
How Shown. — By Attorney.
Bingham v. Walk. 128 Ind. 164, 27
N. E. 483; Wyland v. Griffith, 96
Iowa 24, 64 N. W. 673.

If attorney testifies that none of
the knowledge to which he testifies
was acquired as attorney, he is a
competent witness, although client is
not present. Hodges v. MuUikin, I
Bland Ch. (Md.) 503.

Vol. X



46. By Client. — Wyland v. Grif-
fith, 96 Iowa 24, 64 N. W. 673.

Discovery, Allegations of Bill Ta-
ken as True. — It has been held in
England that when application for
discovery of documents is made, the
allegations of the bill on the subject
of the character of such documents
must be taken as true. Gresley v.
Mousley, 2 Kay & J. 288, 69 Eng.
Reprint 789.

47. How Shown — Penruddock
V. Hammond, 11 Beav. 59, 50 Eng.
Reprint 739.

48. Affidavit. — Forshaw v.
Lewis, 10 Exch. (Hurlst. & G.) 712;
Parsons v. Robertson, 2 Keen 605,
48 Eng. Reprint 761.

49. Witnesses Cleave v. Jones,

Exrx., 7 Exch. (Welsh. H. & G.)
421, 21 L. J. N. S. Exch. 105.

60. Presumed Confidential.
Hager v. Shindler, 29 Cal. 48, 64;
Sharon v. Sharon, 79 Cal. 633, 678,

22 Pac. 26, 131 ; State v. Snowden,

23 Utah 318, 65 Pac. 479; Hutchins
V. Hutchins, i Hogan (Irish) 315.

Paper — When an attorney has in
his possession a paper relating to his
client's affairs, it will be presumed
to have been delivered as a confi-
dential communication. McPherson
V. Rathbone. 7 Wend. (N. Y.) 216.

Non-Confidential Character Not
Presumed. — The court will not pre-



PRIVILEGED COMMUNICATIONS.



335



person, and relating to testimony in pending cause of his client
was communicated to him in his professional capacity/'^

(A.) Presumption Not Conclusive But this presumption is not

conclusive, and may be rebutted.^-

(a.) Rebuttal By Evidence. — This presumption may be rebutted by
evidence.^^

(b.) By Rules and Maxims. — Or by the application of rules and
maxims which ordinarily govern human nature.^*

E. By What Law Determined. — Whether or not a particular
communication is privileged will be determined by the law of the
forum. '^^

a. United States Courts. — The authorities are conflicting as to
the rule applicable in courts of the United States.^"



sume from the fact that a conversa-
tion between attorney and chent was
held in a public place, that it was
intended to be non-confidential.
Parker v. Carter, 4 Munf. (Va.) 273,
6 Am. Dec. 513.

Contra. — But it has been held
that when an attorney offers to dis-
close knowledge obtained from his
client, it will be presumed that it
was not acquired under the seal of
professional confidence. In such
cases the law will presume that had
the knowledge been so acquired, the
attorney would have raised the ob-
jection himself. Chillicothe F. R. &
B. Co. V. Jameson, 48 111. 281.

51. In re Young v. Holloway, 56
L. J. P. 81, 12 P. D. 167, 57 Iv. T.
N. S. 515. In this case it was held
that letters written to an attorney
concerning testimony in an action
upon which he was engaged will be
presumed to have been written to
him in his professional capacity.

52. Presumption Disputable.
Hager v. Shindler, 29 Cal. 48 : Sharon
V. Sharon, 79 Cal. 633, 678, 22 Pac.
26. 131.

53. Presumption Rebutted by
Evidence. — Hager v. Shindler, 29
Cal. 48 ; Sharon v. Sharon, 79 Cal.
^2>2>^ 678. 22 Pac. 26, 131.

54. Rebutted by Maxims Ha-
ger V. Shindler, 29 Cal. 48; Gower v.
Emery. 18 Me. 79.

55. ' lex Fori. — In re Mellen, 63
Hun 632. 18 N. Y. Supp. 515.

56. United States Courts In

Connecticut Mut. L. Ins. Co. v.
Schaefer. 94 U. S. 457, question to
an attorney was objected to as call-



ing for disclosure of privileged com-
munication. The court said that it
was uncertain whether the laws of
Ohio (the state where the trial was
held) made such communications
privileged, and says that, even if such
matters were not privileged under
Ohio law. the federal courts would
hold them privileged. To same ef-
fect, see Liggett v. Glenn, 51 Fed.
381, 2 C. C. A. 286, where the court
uses this language: "Counsel in
their briefs have discussed at some
length the provisions of the statute
of Missouri on this subject, which
declares that an attorney shall not be
permitted to testify ' concerning any
communication made to him by his
client in that relation or his advice
thereon, without the consent of such
client.' In view of the decision of
the supreme court in Insurance Co.
V. Schaefer, 94 U. S. 457, it would
seem that the provisions of the state
statute are not applicable to this
question of evidence when the same
arises in the courts of the United
States. In that case it was urged
that, under the laws of Ohio, the
communication offered in evidence
was not privileged; but the supreme
court said that . . . ' The laws of
the state are only to be regarded as
rules of decisions in the courts of
the United States where the consti-
tution, treaties, or statutes of the
United States have not otherwise
provided. When the latter speak.
they are controlling; that is to say,
on all subjects on which it is compe-
tent for them to speak. There can
be no doubt that it is competent for
congress to declare the rules of evi-

Vol. X



336



PRIVILEGED COMMUNICATIONS.



b. Commission From Foreign Tribunal. — If tribunal of one
country issues commission to take testimony in a case therein pend-
ing to commissioner in a foreign country, and witness refuses to
answer questions on the ground of privilege, upon a proceeding
before a court of the country where testimony is taken, to compel
answers, the court will determine the question of privilege by the
law of the latter country^'^

F. Construction of Statutes. — The authorities are conflict-
ing as to the rule of construction to be applied to statutes creating
privilege.

a. Liberally Construed. — It has been held that such statutes
should be liberally construed.^^



dence which shall prevail in the
courts of the United States not af-
fecting rights' of property, and, where
congress has declared the rule, the
state law is silent.' ... In the
case of State v. Dawson, 90 Mo. 149,
I S. W. 827. the supreme court of
that state held that the section of the
state statute already cited is only
declaratory of the common law ; that
' it is not designed to, nor does it,
narrow the common-law privilege.'
So far, therefore, as the particular
point now under consideration is con-
cerned, the correctness of the ruling
made by the trial court is not depend-
ent upon the question whether the
state statute is applicable or not."

In Connecticut Mut. L. Ins. Co. v.
Union Trust Co.. 112 U. S. 250, it
was held that if the law of the state
where the trial takes place makes
such communications privileged, the
same matters would be held privi-
leged in the federal courts, on the
ground that the Revised Statutes of
the United States did not make a
different provision from that of the
state. This case related to commu-
nications made to a physician.

In Butler v. Fayerweather, 91 Fed.
458, 2>2, C. C. A. 625, 63 U. S. App.
120, it is held that the question of
privilege will be determined accord-
ing to the law of the state in which
the federal court is held.

57. In re Whitlock. 3 N. Y. Supp.
855, 21 N. Y. St. Rep. 719.

58. liberally Construed — Bra-
zier V. Fortune, 10 Ala. 516; Penn
Mut. L. Ins. Co. V. Wiler, 100 Ind.
92, 50 Am. Rep. 769; Kling v. City
of Kansas. 27 Mo. App. 231, 243;
Henry v. Buddecke, 81 Mo. App. 360 ;

Vol. X



Benedict v. State, 44 Ohio St. 679,
688, II N. E. 125. See Denver Tram-
way Co. V. Owens, 20 Colo. 107, 126,
36 Pac. 848; Swift V. Perry, 13 Ga.
138; Hammond v. Myrick, 14 Ga. jy.

Statute should be " fairly " con-
strued. Hartness v. Brown, 21 Wash.
655- 668, 59 Pac. 491.

In Wade v. Ridley, 87 Me. 368, 32
Atl. 975, the court says : " An or-
der of men, honorable, enlightened,
learned in the law and skilled in
legal procedure, is essential to the
beneficient administration of justice.
The aid of such men is now practi-
cally indispensable to the orderly, ac-
curate and equitable determination
and adjustment of legal rights and
duties. While the right of every per-
son to conduct his own litigation
should be scrupulously respected, he
should not be discouraged, but rather
encouraged, in early seeking the as-
sistance or advice of a good lawyer
upon any question of legal right. In
order that the lawyer may properly
perform his important function, he
should be fully informed of all facts
possibly bearing upon the question.
The person consulting a lawyer
should be encouraged to communicate
all such facts, without fear that his
statements may be possibly used
against him. For these reasons, the
rule above stated should be construed
liberally in favor of those seeking
legal advice. It does not apply, of
course, where it is sought to find a
way to violate some law."

In Benedict v. State, 44 Ohio St.
679, II N. E. 125, it was contended
that the rule as to privilege did not
apply to communications made to an
attorney who practiced in justice's



PRIVILEGED COMMUNICATIONS.



337



b. Strictly Construed. — It has also been held that such statutes
should receive a strict construction.^^

G. Other Protection. — a. Injunction. — It has been held that
in a proper case a court will enjoin an attorney from disclosing
matters confidentially communicated to him by his client.*'"

Changing Sides, especially if the attorney has changed sides in a
case, or is about to do so.®^ A court will enjoin an attorney from
changing sides.®^

b. Striking Attorney's Name From Roll. — It has also been held
that a court may prevent disclosure of professional communication
by striking from the roll the name of an attorney who voluntarily



courts, but not in superior courts.
The court uses this language : " It
is equally true that there is a grow-
ing tendency in the courts to extend
the rule of privilege to cases which,
though not within the letter, are
within the manifest spirit of the rule
as it is generally understood. We
are not called upon to declare the
comprehensive rule that all state-
ments made to persons who practice
in justices' courts, during the course
of consultation upon legal controver-
sies, are privileged. We simply de-
clare that the peculiar facts of this
case called upon the court below to
reject the testimony of the witness,
Petty, and in admitting it there was
error, for which the judgment below
is reversed."

59. California. — Satterlee v. Bliss,
36 Cal. 489.

Connecticut. — Appeal of Turner,
72 Coun. 305, 44 Atl. 310.

Georgia. — Collins v. Johnson, 16
Ga. 4S8.

Illinois. — Goltra v. Wolcott, 14
111. 88.

Maine. — Cower v. Emery, 18 Me.
79 (which approves and adopts Fos-
ter V. Hall, 12 Pick. 89, 22 Am. Dec.
400).

Massachusetts. — Hatton v. Robin-
son, 14 Pick. 416, 25 Am. Dec. 415;
Foster v. Hall. 12 Pick. 89, 22 Am.
Dec. 400; Barnes v. Harris, 7 Cush.
576, 54 Am. Dec. 734.

Pennsylvania. — Beeson v. Beeson,
9 Pa. St. 279.

Rule should extend no further than
absolutely uecessary to enable client
to obtain professional advice with
safety. Clyn v. Caulfield, 3 Macn. &
G. 463. 474. 42 Eng. Reprint 339.

Property of client in the possession
of his attorney cannot be shielded



from his creditors by construing the
rule as to privileged commuuications
to include property intrusted to cli-
ent. White V. Bird, 20 La. Ann. 188,
96 Ain. Dec. 393.

" Courts will not extend the rule
as to privileged communications. ' As
the rule of privilege has a tendency
to prevent the full disclosure of the
truth, it should be limited to cases
which are strictly within the princi-
ple of the policy that gave birth to
it.' " State V. Smith, 138 N. C. 700,
50 S. E. 859.

60. Injunction. — Davies v.
Clough, 8 Sim. 262, 6 L. J. Ch. (N.
S.) 113, I Jur. 5, SO Eng. Reprint 105.

In Beer v. Ward, i Jacob (Eng.)
"77, 194, Lord Eldon held that he
could not allow a motion to restrain
a solicitor from giving evidence of
confidential matters, but would leave
the propriety of his being examined
to the court before which he might
appear as a witness.

A clerk for a solicitor, commencing
practice for himself, cannot be re-
strained from acting as solicitor for
parties against whom his former em-
ployer was employed, upon general
allegations of having, in his former
service, acquired information likely
to be prejudicial to his employer's
clients. Bricheno v. Thorp, i Jacob
(Eng.) 300. See also Johnson v.
Marriott, 2 Cromp. & M. (Eng.) 183.

61. Changing Sides — Davies v.
Clough, 8 Sim. 262, 6 L. J. Ch. (N.
S.) 113, I Jur. 5, 59 Eng. Reprint 105.
See Grissel v.. Peto, 9 Bing. i. 23 E.
C. L. 241 ; Cholmondeley z'. Clinton,
G. Coop. 80; .y. c. 19 Ves. Jr. 261. 35
Eng. Reprint 484.

62. Hutchins v. Hutchins. i Ho-
gan (Irish) 315.

Vol. X



338



PRIVILEGED COMMUNICATIONS.



offers to give in testimony facts communicated to him by his client,
without his client's express consent.®^

c. Action for Damages. — Action will lie against an attorney for
damages caused by his violation of his duty as regards confidential
communications. ''^

17. Duty of Attorney Toward Confidential Communications. — A.
Duty to Keep Client's Secrets. — It is an attorney's duty to
keep his client's secrets, and not reveal matters entrusted to him
under the seal of professional confidence. *^°

B. Duty to Divulge Criminal Communications. — But it has
been held that under certain circumstances it is an attorney's duty
to divulge communications made to him by his client for the pur-
pose of obtaining advice or assistance in the commission of a
crime.*'^

C. Violation of Confidlncl Not Presumed. — It will be pre-
sumed that an attorney has not violated, or will not violate profes-
sional confidence f' consequently, knowledge acquired by an at-
torney while transacting business for one client will be presumed
not to have been communicated to another client.*^®



63. Striking Attorney's Name.

People V. Barker, 56 111. 299; Chol-
mondeley v. Clinton, 19 Ves. 261, 34
Eng. Reprint 515.

64. Damages. — Taylor v. Black-
low, 3 Bing. N. C. (Eng.) 235; .y. c.
6 L. J. N. S. C. P. 14.

65. Duty to Keep Secrets — Tay-
lor V. Blacklow, 3 Bing. N. C. (Eng.)
235; .y. c. 6 h. J. N. S. C. P. 14;
Hutchins V. Hutchins, i Hogan
(Irish) 315.

In Wisden v. Wisden, 6 Hare 549,
67 Eng. Reprint 1281, the Vice Chan-
cellor says that it is an attorney's
duty to insist upon privilege.

66. Duty as to Criminal Commu-
nications — People V. Van Alstine,
57 Mich. 69, 79, 23 N. W. 594. See
language of court in State v. Bar-
rows, 52 Conn. 323.

67. Violation Not Presumed — If
an attorney offers to disclose knowl-
edge intrusted to him by his client,
it will be presumed that it was not
acquired under the seal of profes-
sional confidence. In such case the
court will presume that, had the
knowledge been so acquired, the at-
torney would have raised the objec-
tion himself. Chillicothe, F. R. & B.
Co. v. Jameson, 48 111. 281.

68. Melms v. Pabst Brew. Co., 93
Wis. 153, 66 N. W. 518, 57 Am. St.
Rep. 899; Akers v. Rowan, 33 s. c.

Vol. X



451. 473, 12 S. E. 165, 10 L. R. A.
705. On this subject, see Temple-
man V. Hamilton, 2)7 La. Ann. 754.

In Trentor v. Potlien, 46 Minn. 298,
49 N. W. 129, 24 Am. St. Rep. 225,
the question arose upon an applica-
tion of the principle that an agent is
presumed to communicate to his
principal knowledge acquired in the
course of his employment. It was
held that knowledge acquired by an
attorney while engaged for one client
will not be presumed to have been
communicated to another client. For
a case similar to Trentor v. Pothen,
although the question of privilege is
not discussed, see Wittenbrock v.
Parker, 102 Cal. 93, 36 Pac. 374, 41
Am. St. Rep. 172, 24 L. R. A. 197.

In Melms v. Pabst Brew. Co.. 93
Wis. 153, 66 N. W. S18, 57 Am. St.
Rep. 899, it was claimed that a pur-
chaser had notice of facts which in-
validated an executors' sale, on the
ground, inter alia, that he had con-
structive notice, in that the attorney
who acted for him in making his pur-
chase, had acted for the executors in
making and reporting their sale. The
court held that notice and knowledge
obtained by the attorney while acting
for the executors would not be im-
puted to his subsequent client, the
person who purchased from the ex-



PRIVILEGED COMMUNICATIONS.



339



D, Cannot Conceal Confidential Communications From
Client's Representative. — An attorney cannot obtain informa-
tion from a client in a professional way as to the location of certain
property, and, after client's death, escape from testifying in re-
gard thereto by becoming the attorney of a person charged with
embezzling such property.*'*'

E. To Charge Attorney With Violating Confidence, Libel-
ous. -^ To publish concerning an attorney that he has offered him-
self as a witness to disclose his client's secrets is libelous^*'



IV. COMMUNICATIONS TO CLERGYMAN.
1. Not Privileged at Common Law. — Communications between



editors' vendee. The court recog-
nizes the rule that notice to an at-
torney is notice to his cHent ; but
states that the rule is subject to a
qualification. The court says: "The
rule itself is based upon the duty of
the attorney or agent to disclose to
his client or principal all knowledge
and information he possessed at the
time, in relation to the subject-mat-
ter of the employment or agency,
and the presumption is, that he com-
municated it accordingly ; but he
cannot be expected to communicate
what he has forgotten, or what it
would be his legal duty to conceal,
or information which, from his rela-
tion to the subject-matter or his
previous conduct, it is certain that he
would not disclose. W hatever
knowledge the mutual attorney had
acquired in respect to the character
and validity of the executors' deed
and sale five months before was ac-
quired under circumstances which
would render it a breach of profes-
sional confidence to disclose it to an-
other, or to take advantage of such
knowledge to serve or promote the
interests of another client ; and there-
fore such second client would not be
affected or bound by it." The court
also says : " The whole doctrine of
imputed notice to the client or prin-
cipal rests upon the ground that the
attorney or agent has knowledge of
something material to the particular
transaction, which it is his duty to
communicate to his principal. Wyl-
lie V. Pollen, 3 De Gex, J. & S. 596,
46 Eng. Reprint 767. And notice of
it will not be imputed to the client



where it would be a breach of pro-
fessional confidence to make the com-
munication."

In Littauer v. Houck, 92 Mich. 162,
52 N. W. 464, 31 Am. St. Rep. 572,
notice to attorney was imputed to
client, but in that case it appeared
that the imputed knowledge was not
acquired as attorney, but in the course
of conversation regarding a purchase
proposed to be made by the attorney.
See title " Notice." See Hood v.
Fahnestock, 8 Watts (Pa.) 489, 34
Am. Dec. 489; Martin v. Jackson, 27
Pa. St. 504. 67 Am. Dec. 489 ; McCor-
mick V. Wheeler. Mellick & Co., 36
111. 114, 85 Am. Dec. 388; Pepper v.
George, 51 Ala. 190; Taylor v. Evans
(Tex. Civ. App.), 29 S. W. 172. In
this last case it was held that where
a person contemplating insolvency
delayed execution of his assignment
to enable certain creditors to obtain
preference by attachment, and com-
mimicated this purpose to his attor-
ney, and this attorney was soon there-
after retained by the creditors sought
to be preferred, such new clients
would be charged with notice of
former client's fraudulent intent.
The court said that the attorney
could, without breach of professional
duty, have communicated his knowl-
edge to his new client

69. Ex parte Gfeller, 178 Mo. 248,
269, 77 S. W. 552.

70. Riggs V. Denniston, 3 Johns.
Cas. (N. Y.) 198. 2 Am. Dec. 145.

As to questions to be considered by
the jury in such cases, see Moore v.
Terrell, 4 Barn. & Ad. 870, 24 E. C.
L. 175-

Vol. X



340



PRIVILEGED COMMUNICATIONS.



clergyman and one confessing to him, or seeking spiritual advice,
were not privileged at common law.'^

2. General Rule. — The general rule deducible from statements
and decisions on this subject is, that communications in the nature
of confessions or applications for spiritual guidance, made to a
priest or clergyman, as such, in confidence, and in the course of
the discipline enjoined by the church of which the clergyman is a
member, are privileged.'^^

3. Essentials. — A. Clergyman. — Communication To Fkj:.low
Church Member Not Privileged. — Communication must be
made to a clergyman ; consequently confession of a person, volun-
tarily made to members of the same church, may be given in evi-
dence by them on his trial for the crime or misdemeanor confessed
by him.'^^

B. Must be Acting in Professional Capacity. — Clergyman
must have been acting in his professional capacity at time commu-
nication in question was made.'*

Acting as Officer of Church. — When clergyman is acting, not as a
spiritual guide, but as an officer of his church, communications
made to him are not privileged.'^^



71. Normanshaw v. Normanshaw,
69 L. T. N. S. 468 ; Rex v. Gilham, i
Moody Crown Cas. 186. See dicta
to same eflfect in Wheeler v. LeMar-
chant, L. R. 17 Ch. Div. 675, 50 L. J.
N. S. Ch. 793, 44 L. T. N. S. 632;
Anderson v. Bank of British Cokim-
bia, L. R. 2 Ch. Div. 644, 45 L. J. N.
S. Ch. 449, 35 L. T. N. S. 76; Rus-
sell V. Jackson, 9 Hare 387, 68 Eng.
Reprint 558.

Contra. — Dictum In Broad v.

Pitt, 3 Car. & P. 518, 14 E. C. L. 423,
Best, C. J., said he would never com-
pel a clergyman to disclose communi-
cations made to him by a prisoner,
but would receive them in evidence,



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