In re Cole

6 F. Cas. 41, 8 Reporter, 105, 1879 U.S. App. LEXIS 1773

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? The general law in regard to privileged communications is well understood, and originated far back in the 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 the 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 AVeeks. 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 the 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 the 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, hut who made them, and how are the client's interests affected by them? The protection is for the benefit of the client, not the counsel. I am of opinion that witnesses must answer [all material questions under this commission].¹

[NOTE. The respondent Cole demurred to the information presented against him by the bar association, and the sufficiency of the information was passed upon by Mr. Justice Miller. See Case No. 2,973. [In a note to the report of Mr. Justice Miller’s opinion in 1 McCrary, 405, it is stated that before the final hearing Mr. Cole made a satisfactory acknowledgment and apology, whereupon, on motion of the committee of the bar association, the proceeding was dismissed.]

[If it is intended that the process of the court should be invoked, the questions must be first written out and shown to be material.] ¹

1 [From 7 Wkly. Notes Cas. 115.]