In re O'Donohoe

D. Maine

In re O'Donohoe

18 F. Cas. 587, 3 Nat. Bank. Reg. 245, 1869 U.S. Dist. LEXIS 281

DecidedMarch 4, 1869

StatusPublished

This text of 18 F. Cas. 587 (In re O'Donohoe) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re O'Donohoe, 18 F. Cas. 587, 3 Nat. Bank. Reg. 245, 1869 U.S. Dist. LEXIS 281 (D. Me. 1869).

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Opinion

FOX, District Judge.

It is a mistake to suppose that an attorney is privileged from [589]*589answering as to everything which conies to his knowledge while he is acting as attorney. The privilege only extends to information derived from his client as such. Information derived from other persons or sources, although derived or obtained while acting as attorney, is not privileged. 7 East, 357. The principle of the rule does not apply to the discovery of facts within the knowledge of an attorney, which were not •communicated or confided to him by his client, although he became acquainted with the facts while engaged in his professional duty as the attoi'ney of the client. In 1 Hill, 33, it was decided that if an attorney was present at any transaction in the way of business between his client and a third person, he is not privileged as to what then took place. In Whiting v. Barney, 30 N. Y. 330, rthe marginal note is: “The rule which protects professional communications of clients ■to their attorneys from disclosure, should •only be held to extend to such communications as have relation to some suit, or other judicial proceeding either existing or anticipated.” This is somewhat in conflict with other authorities, but it seems to me to be well sustained by the principles upon which the rule is supposed to rest. In this case Ingraham, J., says, in his opinion: “The decisions settle the rule, that when the disclosures are made in the presence of a third party, they are not privileged.”

The answers to the questions propounded •to- Mr. Flagg in the present case could not possibly have disclosed any privileged communication; they only called upon him to state his own proceedings in the disposition of a stock of goods and the amount he re■ceived therefor. It was solely his own acts which he was required to disclose, and not •anything whatever which his clients ever ■communicated to him; these acts were not professional; did not appertain to the duty of an attorney, but were such as any agent • could have done, being the ordinary proceedings of an agent in selling the property of his principal, and paying over the proceeds-which were the subject of investigation and inquiry. Whatever this witness had done in this behalf was not in his capacity of an attorney or counsel, but was in the character •of an ordinary agent of a third party, transacted openly, with the knowledge of many other persons, and with nothing secret or ■confidential in any respect, so far as appears. In 15 La. Ann. 331, the same course of inquiry was' made to a witness, and he was required to answer who was his client, when that relationship commenced and terminated, what money he had received and paid over, .and to whom paid.

The law required of Mr. Flagg an answer to each of the questions propounded to him •on this examination, and I have no doubt that he will at once make the requisite replies on learning the opinion of the court.

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FOX, District Judge.

It is a mistake to suppose that an attorney is privileged from [589]*589answering as to everything which conies to his knowledge while he is acting as attorney. The privilege only extends to information derived from his client as such. Information derived from other persons or sources, although derived or obtained while acting as attorney, is not privileged. 7 East, 357. The principle of the rule does not apply to the discovery of facts within the knowledge of an attorney, which were not •communicated or confided to him by his client, although he became acquainted with the facts while engaged in his professional duty as the attoi'ney of the client. In 1 Hill, 33, it was decided that if an attorney was present at any transaction in the way of business between his client and a third person, he is not privileged as to what then took place. In Whiting v. Barney, 30 N. Y. 330, rthe marginal note is: “The rule which protects professional communications of clients ■to their attorneys from disclosure, should •only be held to extend to such communications as have relation to some suit, or other judicial proceeding either existing or anticipated.” This is somewhat in conflict with other authorities, but it seems to me to be well sustained by the principles upon which the rule is supposed to rest. In this case Ingraham, J., says, in his opinion: “The decisions settle the rule, that when the disclosures are made in the presence of a third party, they are not privileged.”

The answers to the questions propounded •to- Mr. Flagg in the present case could not possibly have disclosed any privileged communication; they only called upon him to state his own proceedings in the disposition of a stock of goods and the amount he re■ceived therefor. It was solely his own acts which he was required to disclose, and not •anything whatever which his clients ever ■communicated to him; these acts were not professional; did not appertain to the duty of an attorney, but were such as any agent • could have done, being the ordinary proceedings of an agent in selling the property of his principal, and paying over the proceeds-which were the subject of investigation and inquiry. Whatever this witness had done in this behalf was not in his capacity of an attorney or counsel, but was in the character •of an ordinary agent of a third party, transacted openly, with the knowledge of many other persons, and with nothing secret or ■confidential in any respect, so far as appears. In 15 La. Ann. 331, the same course of inquiry was' made to a witness, and he was required to answer who was his client, when that relationship commenced and terminated, what money he had received and paid over, .and to whom paid.

The law required of Mr. Flagg an answer to each of the questions propounded to him •on this examination, and I have no doubt that he will at once make the requisite replies on learning the opinion of the court.

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Bluebook (online)

18 F. Cas. 587, 3 Nat. Bank. Reg. 245, 1869 U.S. Dist. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-odonohoe-med-1869.

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