Bacon v. Frisbie.

person making them. That principle is, that he who seeks aid or advice from a lawyer ought to be altogether free from the dread that his secrets will be uncovered; to the end that he may speak freely and fully all that is in his mind. Now this principle is not wholly kept, if what is thus said may be told without his assent, though to the immediate harm or help of another only. The disclosure is made, his secret is bruited, and he has it no longer in his power to stay it from use by any in strife with him, just as much when given in testimony against another as against him. It is not, indeed, put in evidence directly against him to his immediate harm, but that thing, the knowledge of which was confined to him and his adviser, has become matter of common knowledge, and may be the cause of his harm. The effect may not be so direct and immediate, yet it is a possible effect, and the foreseen possibility would press upon his lips, when in consultation with his legal adviser, nearly as heavily as if testimony of what he showed to his counsel could be called out in evidence against himself. A branch of the rule, to wit: that the communication is to be inviolate, though no suit be begun or con emplated, shows that though there is no present opportunity of the use of evidence of it against him, the communication is made under the seal of professional confidence. And it is but a further natural growth of the rule, that the communication is to be privileged from being put in evidence for or against another, lest it, by means of the knowledge of it thus given, be used to his harm for the sustaining or defense of a suit thereafter begun in which he may be made a party. Hence, when Ratnour objected to the testimony of Kennedy, he made a good objection to the receipt of it at all, whether it was or was not limited in its effect to the case of Frisbie. And had Ratnour not been a party to the action, and so had no right to be at the trial and object, yet the objection would lie in the mouth of Frisbie, who, by it, would but call upon the court to keep untouched a rule of public policy, made and to be kept not especially for his good, but for that of all men. The rule is in the nature of that which excludes evidence when the production of it would be prejudicial to the public interests. The public good in the concealment of it overbalances that which may be reached, either by the public in the administration of criminal law, or by private persons in the inquiry into their rights.

The testimony of Kennedy was not competent to be given at the trial. The vice in the reception of it was in the nature of it, and

Bacon v. Frisbie.

not that it was aimed at this or that person as a party to the action on trial. See Rex v. Withers, 2 Camp. 578; Wilson v. Rastall, 4 T. R. 753, per BULLER, J., 760; Chant v. Browne, 12 Eng. L. & Eq. 299.

It is said that it was offered against Ratnour alone, and not to affect Frisbie. It does not appear from the case that it was limited when called out, or even after during the trial; and it is not easy to perceive how it could be taken as it was generally without hav ing weight in the mind of the jury against each of the defendants, they being sued as joint actors in a fraud upon the plaintiff.

True, the communications must be to the professional adviser for his information; and it may be that if a client chooses to speak his mind to his counsel, in the presence and hearing of persons unrelated to him in the matter, that what is said is not privileged. We have not to decide that at this time. It is claimed here that what was said by Ratnour to Kennedy was in the presence of others. In answer to the preliminary questions put to Kennedy he said that others were present, and he inferred that one of them could have heard the communication; but it is not shown that any other person than Ratnour and Kennedy heard this particular conversation; nor did the trial court put its ruling upon that ground. The testimony was admitted, for that Kennedy said that he was not counsel. We are not able to say that the fact existed that Ratnour made his statement so that others than Kennedy heard it.

We are therefore of the opinion that the General Term should have reversed the judgment in toto and ordered a new trial for both defendants.

The other exceptions made at the trial and brought before us by the points of the appellant do not show error.

The judgment of the General Term, so far as it affirms the judgment against the defendant Frisbie, should be reversed, and a new trial ordered for him as well as the defendant Ratnour.

All concur.

Judgment accordingly.

NOTE BY THE REPORTER. — It has been said that the rule which prohibits an attorney from disclosing professional communications does not arise from the moral obligation to preserve a secret confided to him, nor from the peculiar power of the court to regulate the conduct of attorneys as officers of the court, nor from any general grounds of public policy forbidding confidential communications to be disclosed. The rule is a mere extension of immunity of the party to his substitute, the attorney. Rochester City Bank v. Suydam, 5 How. Pr. 254. The same view was adopted by SELDEN, J., in Whiting v. Barney, 30 N. Y. 341, where he said it was "clear that the privilege in question is not founded

Bacon v. Frisbie.

upon any idea of the sacredness of confidential communications, whether made to an attorney or any other person, nor upon any peculiar policy of the law which distinguishes the general business of an attorney from that of any other class in the community; but & was the result of that rule of the common law which excused parties from testifying in their own cases, and of the necessity, for the convenience of the public as well as the benefit of suitors, of having the business of the courts conducted by professional men." This view however was not adopted by the rest of the court.

The privilege extends to any representative of the attorney, in conference or corre spondence. Brand v. Brand, 39 How. Pr. 193; Jackson v. French, 3 Wend. 337; 20 Am. Dec. 699. And in accordance with the above rule, a communication made to an attorney's clerk in regard to a suit which the attorney is prosecuting for such client is privileged in the same manner as if made to the attorney in person. Sibley v. Waffle, 16 N. Y. 180.

But it was held in Barnes v. Harris, 7 Cush. 574, that the privilege did not extend to a mere student at law in the attorney's office, not the attorney's clerk, although the client supposed he was an attorney. Nor does it extend to one not a lawyer, although the party supposed him to be a lawyer Sample v. Frost, 10 Iowa, 266.

It has been held that a party who offers himself as a witness on a trial cannot refuse to answer as to the confidential communications made to his counsel. Woburn v. Henshaw 101 Mass. 193; s. C., 3 Am. Rep. 333. But this is an extreme case, and seems opposed to the weight of authority. Duttenhofer v. State, 34 Ohio St. 91; 8. c., Am. Rep. 362; Big. ler v. Reyher, 43 Ind. 112; Barker v. Kuhn, 38 Iowa, 395: Temenway v. Smith, 28 Vt. 701: Bobo v. Bryson, 21 Ark. 387; State v. White, 19 Kaus. 45; s. c., 27 Am. Rep. 137, and nɔte, 142.

The privilege does not apply to third persons overhearing communications between attorney and client. Hoy v. Morris, 13 Gray, 519; Jackson v. French, 3 Wend. 337; God dard v. Gardner, 28 Conn. 172. Nor to the adverse party. Little v. McKeon, 1 Sandf 607 Nor where both parties are present. Whiting v. Barney, 30 N. Y. 300 (so held by four judges against three, and by all the judges in Britton v. Lorenz, 45 id. 51). But this applies only to such communications as were made when both parties were actually pres ent. Brand v. Brand, 39 How. Pr. 193. Nor does the privilege extend to statements made by a third person, at the instance of the party, to the attorney. Perkins v. Guy, 55 Miss. 153. The relation of attorney and client must exist at the time of testifying. Voluntary disclosures made by a former client after the relation has ceased, and not elicited by any artifice of the attorney, are not privileged, although substantially a reiteration of communications made while the relation existed, and therefore then privileged. Yordan v. Hess, 13 Johns. 492; Mandeville v. Guernsey, 38 Barb. 225.

The relation must be strictly that of attorney and client. Rochester City Bank v. Sugdam, 5 How. Pr. 254. But that relation need extend only to the particular matter; there need not be a general retainer. Earle v. Grout, 46 Vt. 113. Nor payment of fee. Cross V. Riggins, 50 Mo. 335.

The privilege applies only to communications, and not to acts or transactions with third persons, although the attorney attends professionally. Coveney v. Tannahill, 1 Hill, 33; Hebbard v. Haughian, 70 N. Y. 54: Randell v. Yates, 48 Miss. 685. Nor to letters written by the attorney in pursuance of the client's instructions. Reg. v. Downer, 43 L. T. (N. S.) 445.

The privilege however applies to documents belonging to a client in the lawyer's hands. It has been held that when a solicitor holds a document for his client, he cannot against the will of the client be compelled to produce it, even by a person who has an equal interest in it with the client. Newton v. Chaplin, 10 C. B. 356. If the attorney permits the papers held for the client to pass out of his hands, they may be put in evidence against the client by the party who holds them. But an attorney having papers of his client in his possession in court, which are required as evidence in the case, is not privileged from producing them at least for the purpose of identification. Mitchell v. Sheriff of New York, 7 Abb. Pr. 96. This however seems overruled by Britton v. Lorenz, 45 N. Y. 51. The rule extends to a bill in chancery sworn to but never filed. Burnham v. Roberts, 70 III 19; Neal v. Patten. 47 Ga. 73.

The privilege does not apply to cases where the attorney learned of the matters not as a professional man, but by personal observation, and where they were not communicated

as secrets, though the client may have given the same information. Davis v. Waters, 9 M. & W. 611; Crosby v. Berger, 11 Pai. 377; Brandt v. Klein, 17 Johns. 335; Chillicothe R. R. v. Jamesum, 48 Ill. 281.

The privilege does not extend to cases where the advice was given with a view of breaking the law, for communications of this class counsel are bound to disclose. Bank v. Mersereau, 3 Barb. Ch. 598; People v. Sheriff, 29 Barb. 622; Graham v. People, 63 id. 483. Communications made to an attorney at law, with a view of obtaining his assistance in the commission of a felony, or other crime malum in xe, are not privileged. Bank v. Mersereau, supra; People v. Blakely, 4 Park. Cr. 176. In State v. Mewherter, 46 Iowa, 88, an attorney on the trial of the defendant for murder testified that the defendant consulted his firm in regard to a suit against the deceased, and during the consultation made threats against the deceased. It appearing that the threats in no manner pertained to the business of the consultation, held, that they were not privileged. But the privilege extends to Communications made for the purpose of getting aid and advice in perpetrating an act not malum in se, such as a fraud on creditors. Bank v. Mersereau, supra; Gartside v. Outram, 26 L. J. Ch. 115; Charlton v. Coombs, 32 id. 284; Maxham v. Place, 46 Vt 434.

In order that the communications shall be privileged it is not necessary that they be made in a suit pending, or even in contemplation of one. If made for the purpose of obtaining the attorney's professional advice or skill they are privileged, and he has no right to disclose them without the consent of his client. Crosby v. Crosby, 2 Ch. Sent. 15. "The foundation of this rule," says Lord Chancellor BROUGHAM, “is not on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection. But it is out of regard to the interests of justice which cannot be upholden, and to the administration of justice which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the courts and in those matters." LEARNED, P. J., in Bacon v. Frisbie, 15 Hun, 28, says: "The object of the rule is evidently to enable persons to obtain legal advice on a free and full statement of facts, without the risk that the statement will be made evidence against them. And to effect that object it is necessary that every statement should be privileged which is made to an attorney or counselor for the purpose on the part of the client of getting advice as to the law on the facts stated. The motive of the party who makes the statement and the character of the party who hears it make it privileged." The contrary doctrine was asserted by SELDEN, J., in a learned and elaborate opinion in Whiting v. Barney, 30 N. Y. 330, but none of the other judges concurred, and the case was decided on another ground. And in Britton v. Lorenz, 45 id. 57, GROVER, J., said: "The rule deducible from the authorities is, that all communications made by a client to his counsel, for the purpose of professional advice or assistance, are privileged, whether such advice relates to a suit pending, one contemplated, or to any other matter proper for such advice or aid." And this was concurred in by all the judges. To the same effect, Minet v. Morgan, L. R., 8 Ch. 561.

The attorney may disclose the communications when he has an interest in the matter, or the disclosure is necessary to protect his own personal rights. Rochester City Bank v. Suydam, 5 How. Pr. 254. And he must disclose them, where he is not only attorney but party, as when summoned as a garnishee, he is asked if he has not received money from his client to pay certain debts. Jeanes v. Fridenberg, 3 Penn L. J. R. 199.

The general rule in relation to the client's testifying to confidential communications is, that whatever the lawyer is precluded from testifying to the client is protected from disclosing. Hemenway v. Smith, 28 Vt. 701; Carnes v. Platt, 36 N. Y. 360; 15 Abb. Pr. (N. S.J 337; Bigler v. Reyher, 43 Ind. 112.

VOL. XXXVI-89

Young v. Young.

YOUNG V. YOUNG.

(80 N. Y. 422.)

Gift-delivery — trust.

The intestate placed bonds in two envelopes, indorsing and signing a memorandum that they belonged to his sons W. and J., in specified proportions, on his death, but that the interest was owned and reserved by him during his life. He showed the indorsed packages to their wives, stating that he believed he had made a valid disposition of the bonds. He then put and kept them in a safe in the house of his son W., where he himself lived, and in which safe W. also kept some papers, but of which safe the intestate had practical control, and they were found there on his death. He cut off and used the coupons during his life-time, and once gave a bond from one of the packages to a third person. He spoke of them as the bonds of the sons. The son J. had no access to the safe, and neither son exercised any control over the bonds as against the father. Held, neither a gift nora declaration of a trust.*

CLAIM

LAIM on an administrator's accounting, to the ownership of bonds. The bonds on the death of the intestate were found in two envelopes, with indorsed memoranda signed by him, dated March 14 and March 14, 1874, each describing the bonds inclosed by numbers, and stating that certain of them belonged to William H. Young, and the others to John N. Young. "But the inst. to become due thereon is owned and reserved by me for so long as I shall live, at my death they belong absolutely and entirely to them and their heirs." The opinion states other facts.

Hezekiah Watkins, for appellants.

Homer A. Nelson, for respondent.

RAPALLO, J. The intention of Joseph Young, deceased, to give the bonds in controversy on this appeal to his son William H. Young, reserving to himself only the interest during his life-time, was so clearly manifested that we have examined the case with a strong disposition to effectuate that intention and sustain the gift if possible.

*See Gerrish v. New Bedford Inst. for Savings (128 Mass. 159), 35 Am. Rep. 365.