In re Cole

26 F. Cas. 41, 8 Reporter, 105

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: May 9, 1879
• Status: Published

Opinion

BUTLER, District Judge.

Two questions were raised: 1. That the circuit court of Iowa had no authority to issue the commission. 2. That the communications were privileged.

As to the first, I, as a judge, have no authority to inquire into the jurisdiction of the circuit court of Iowa, or whether or not' there is there pending a civil action. That court has decided that question, and issued a commission. It would be highly discourteous to look behind its record, and I decline to do so.

Secondly, are the communications privileged'/ Tbe general law in regard to privileged communications is well understood, and originated far back in tbe history of jurisprudence. How far, in modem times, the law has been modified, it is not now necessary to consider. It is sometimes said that all communications between counsel and client are privileged; but this is too general, and is inaccurate. They must relate to the business and interest of tbe client; and, moreover, they must be lawful; for, if unlawful, public policy forbids their concealment under the plea of privilege; and, if lawful, they must fall within the scope of professional duty. Communications by counsel to client, likewise, are usually privileged, because closely connected with the client’s interest and business. See Weeks. Attys. at Law, p. 252. Suppose a case most favorable to the witnesses, viz., that these communications were by client to counsel, would they be privileged? I do not mean to imply any fault in these gentlemen. I have no doubt they are entirely free from blame. But suppose a client had devised, with the assistance of counsel, a scheme to obstruct tbe administration of justice, would the communications be privileged? The authorities applicable to such cases say not. The charge here is that Mr. Cole intended to promote perpetration of crime. Had it not been for tbe learned argument of counsel who opposed the motion, I should not have had the slightest doubt about the case. The matter does not fall within the scope of professional employment Moreover, these communications have been already given to the public. The inquiry is not what they were, but who made them, and bow are the client’s interests affected by them? The protection is for the benefit of the client, not the counsel. I am of opinion ed to tlie proper officer of the treasury for settlement, and disallowed.

THE COURT (THRUSTON, Circuit Judge, absent), at May term, 1S22. decided that the third auditor could not authenticate a copy 'of the bond; his power of authentication, under the act of March 3, 1817 (3 Stat. 366), extending only to “transcripts from the books and proceedings of the treasury in regard to the accounts of the war department,” and that copies of bond must still be certified by the register,and authenticated under the seal of the department, according to the act of March 3, 1797 (1 Stat. 512).