Hatton v. Robinson

31 Mass. 416

Opinion

Shaw C. J.

delivered the opinion of the Court. The only question for the Court in the present case, is, whether the deposition of Mr. Ames was properly admitted in evidence ; and this depends upon the further question, whether the matters testified to by him, were to be considered as within the rule of privileged communications. Another question was indeed. made, namely, whether the deposiiion should have been wholly rejected ; or if a part were objectionable, as being privileged, the objection should not have been confined 10 such part. But as by far the greatest part of the deposition, both in bulk and importance, was alike open to the objection, and the part that would remain, would be almost, if not wholly immaterial, the objection at the trial seems to have been made to the deposition, without exception to that course, when it snuu d in strictness have been made to the disclosure of the supposed privileged communication. But the cause has been argued upon the same grounds as if the objection had been thus taken, and we shall so consider it.

The rule, upon which the plaintiff’s counsel in the present case relied, to exclude all that part of the testimony of Mr. Ames, which consisted of statements made to him by Winch, as to his views and motives in making the sale, upon which the plaintiff founds his title, is that well known rule of evidence, founded on the confidence which a client reposes in his counsel, attorney or solicitor. By this rule, it is well established, that all confidential communications between attorney and client, are not to be revealed at any period of time, nor in any action or proceeding between other persons ; nor after the relation of attorney and client has ceased. This privilege is that of the client and not of the attorney, and never ceases, unless voluntarily waived by the client.

We had occasion lately to consider this subject m the case of Foster v. Hall, 12 Pick. 89, which was not published at the time this cause came before the Court, in which it was decided, that the privilege was not confined to the case of communications made to an attorney, with a view to the prosecution or defence of á suit or legal process, pending or immediately contemplated, at the time of the communication ; but that it extends to all communications made to an attorney or counsellor, duly qualified and authorized as such, and applied to ny the party in that capacity, with a view to obtain his advice and opinion in matters of law, in relation to his legal rights, duties and obligations, whether with a view to the prosecution or defence of a suit, or other lawful object.

Footnotes

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* This extent and modification of the rule, we thought, was well sup ported by the weight of authority, and consistent with the principle upon which the rule is founded. This principle we take to be this ; that so numerous and complex are the laws by which the rights and duties of citizens ‘are governed, so important is it that they should be permitted to avail themselves of the superior skill and learning of those who are sanctioned by the law as its ministers and expounders, both in ascertaining their rights in the country, and maintaining them most safely in courts, without publishing those facts, which they have a right to keep secret, but which must be disclosed to a legal adviser and advocate, to enable him successfully to perform the duties of his office, that the law has considered it the wisest policy to encourage and sanction this confidence, by requiring that on such facts the mouth of the attorney shall be for ever sealed. To the rule as thus stated we are still inclined to adhere.

But the privilege of exemption from testifying to facts ac tually known to the witness, is in contravention to the general rules of law ; it is therefore to be w'atched with some strictness, and is not to be extended beyond the limits of that principle of policy, upon which it is allowed. It is extended to no other person than an advocate or legal adviser, and those persons whose intervention is strictly necessary to enable the client and attorney to communicate with each other, as an interpreter, agent or attorney’s clerk. And this privilege is confined to counsel, solicitors and attorneys, when applied to as such, and when acting in that capacity. Wilson v. Rastall, 4 T. R. 753.

But there are many cases, in which an attorney is employed in transacting business, not properly professional, and where the same might have been transacted by another agent. In such case the fact that the agent sustains the character of an attorney, does not render the communications attending it, privileged ; and they may be testified to by him, as by any other agent. In Wilson v. Rastall already cited, Buller J. says, that the privilege is confined to the case of counsel, solicitor and attorney, and it must be proved, that the information was communicated to the witness, in one of those characters ; for if he be employed merely as steward, he may be examined

So where the matter is communicated by the client to his attorney for purposes in no way connected with the object of the retainer and employment of the attorney as such. Cobden v Kendrick, 4 T. R. 432. The Court say, the difference is, whether the communications were made by the client to the attorney in confidence, as instructions for conducting his cause, or a mere gratis dictum.

And so strictly is the rule held, that the privilege extends only to communications made by the client to his attorney for the purpose of obtaining legal advice, that in a late case it was held, that a communication made by a client to his attorney, not for the" purpose of asking his legal advice, but to obtain information as to a matter of fact, is not privileged, and may be disclosed by the attorney, if called as a witness in a cause. Bramwell v. Lucas, 2 Barn. & Cressw. 745.

Looking at the deposition of Mr. Ames, with these views in respect to the legal privilege of communications between attorney and client, it appears quite manifest, that the rule of exemption does not apply to any communication made by Hatton the plaintiff, inasmuch as it does not appear that the witness was applied to by him, or that the relation of attorney and client, in any respect, subsisted between them. In regard to those communications, therefore, it appears to the Court, that the witness cannot be exempted from testifying.

But upon examining the other part of Mr. Ames’s deposition, we cannot perceive that the communications were made to him by Winch with the purpose of instructing him in any cause, or engaging him in the conduct of any professional business, or of obtaining any legal advice or opinion. If the disclosure of his views and purposes, in the conveyance of property proposed to be drawn, was not, as stated in some of the books, a mere gratis dictum, the only purpose seems to have been to satisfy Mr. Ames’s mind, and remove any scruple that he might entertain, as to the character of the transaction, and to convince him, that whatever might be the legal character of the act, it was not attended with moral turpitude. It did satisfy him, that he was not to be engaged in a conspiracy to cheat, and induced him to consent to draw the deed. Here was no legal advice asked, no opinion requested as to the eñe'’ and operation of such a conveyance in point of law, and none given. We are therefore necessarily brought to the conclusion, that either these disclosures were made without any particular motive, or if there was a purpose, connected with the proposed draft, it was to satisfy Mr. Ames’s mind, upon a point of fact, not for the information of his own in point of law, and in either event they are not to be deemed privileged communications, which the witness was prohibited from disclosing. The whole deposition therefore was rightly admitted, and conformably to the case agreed, the nonsuit must stand.

In reference to this subject see Greenough v. Gaskell, 1 Mylne & Keene, 98