Dixon v. Parmelee

2 Vt. 185

Opinions

The opinion bf the Court was delivered by

Paddock:, J.

There is some difficulty in drawing a line between those communications made by a client to his counsel, which the latter ought to testify to, if called upon, and those wherein he ought not.

^ ^as ^onS been the established law, that councselors, solicitors and attorneys, ought not to be permited to discover the secrets of their clients ; it is declared repugnant to the policy of the law, to permit the disclosure of secrets by him whom the law has intrusted therewith. It is the privilege of the client, that the mouth of his counsel should be forever sealed against the disclosure of things necessarily communicated to him for the better conducting his cause, pendente lite: but this privilege, in all the cases which have fallen under my observation, has been strictly confín- , ed to the period in which the suit has been pending, and to the party of record, or in interest; and where the substance of the communication was such that it beeamo necessary for the attorney to know it in order to manage the suit. And this distinction seems to give á clue to that which is said to be the origin of the law; which is, that in early days, suitors brought in person their complaints before the King, and afterwards his court; that as business increased, the administration of justice approximating to a science, and the necessity of forms sensibly felt, it became absolutely necessary that there should be a set of men to stand in the place of suitors, called attorneys, and manage their causes; to encourage which, and bring the same into practice, it also became necessary for courts to adopt a rule, by way of pledge to suitors, that their secret and confidential communications to their attorneys should not be drawn form them, either with or without the consent of such attorney. But this rule is not to be extended to all the subjects or conversations which a client may have with his attorney, nor to any period but that from his retainer to the termination of the suit: for tho* an important communication may be made as to the subject matter, after the ending of the suit, yet the attorney must give it in testimony if required. As in Colden vs. Kendrick, 4 T. R. 431, which was' after a compromise between the parties and Colden’s paying a part of the demand and giving a warrant to confess a judgment for the balance. Kendrick told Allen, his attorney, he was glad the suit was settled, for the bill grew out of a lottery transaction, which he knew at the time he purchased it. Upon Colden’s bringing an action to recover back the amount paid, Allen was held a good witness to show Kendrick’s acknowledgment.

Any matter of fact the knowledge of which the attorney had, other than from his client, the attorney is bound to disclose. Spencely vs. Schulenburgh, 7 East, 357. And so of directions given by an attorney, which any person of prudence and forethought would have directed. Bramwell vs. Lucas, 9 Com. Law Rep. 233. — Bull. N. P. 284. And where an attorney is retained generally, and a conversation is had upon a subject which af-terwards gives rise to a suit, the attorney is bound to disclose it, there being no suit in contemplation when the conversation was had; and it was so ruled in the exchequer of Ireland in the case Annesly vs. the Earl of Anglesey, McNall. 241.

I have before observed, that the privilege is that of the party, and not of the attorney; that the attorney is in loco of the client; and reasoning upon the principle of cause and effect, the privilege attaches only to the attorney who is to stand in the court to manage, or participate in managing, the cause; or, at least, was originally so : and upon no other principle can we reconcile the same privilege not attaching where other professional men are consulted. But in the Dutchess of Kingston’s case, who was prosecuted for bigamy, her surgeon was directed to testify, though he objected, saying, that whatever he might know, came to his knowledge confidentially, whilst in the exercise of professional service and trust. And a catholic clergyman, being called as a witness, said he knew nothing but what was communicated to him in confidence, whilst in the discharge of his clerical duties; yet, Sir Michael Smith directed him to be sworn. But this is extending the inquiry farther than is necessary for the determination of this case; inasmuch as Story, the witness called, was not an attorney of record j neither had he been retained by either plaintiff or defendant : and if retained by Ferguson, it does not appear, from what the witness said, that he was retained in any wise to defeat Ferguson’s deed to Hardy: and we are. not to infer a fraud, on the part of Ferguson, who it appears was both out of the record and out of interest. The offer of counsel to prove by Story was, that just before the attachment was made, he carried a written communication from Ferguson to Dixon, containing information of the deed to Hardy, and that Story also informed Dixon of that deed. Story said, “ that at the time in question, he was retained by-Ferguson in that business, and that whatever message or information he might have conveyed from Ferguson to Dixon, was conveyed and given in the exercise of professional trust and confidence.” The question might well be asked, “ in what business retained?” The language implies no business but the carrying the letter, a knowledge of its contents, and informing Dixon of Hardy’s deed. This surely is what any one might have done : no scientific knowledge was necessary to carry a letter, to know its contents, and to inform Dixon, that Hardy had a deed of the land : and this was all proposed to be shewn by the' witness; and was not only gratuitous as respected Dixon, but was' clearly a transaction of that ordinary cast, that Ferguson, had he' been in court, would not have wished to conceal, though Story had some scruples about it. Dixon might wish to conceal it: it was his interest to do so. But Story was not the -attorney of Dixon.

This case clearly falls within the letter and spirit of Dramwell vs. Lucas and others ; and the witness ought to have-testified j and the Court think a new trial ought to-be granted, for Story’s testimony having been excluded. As tQ the witness, Nichols, his testimony was properly' admitted.

New trial granted.