Minard v. Stillman

49 P. 976, 31 Or. 164, 1897 Ore. LEXIS 26

• Court: Oregon Supreme Court
• Decided: July 31, 1897
• Status: Published

Opinion

Pee Cukiam.

The defendant contends that he occupies the position of attorney both for the plaintiff and the parties to whom he paid this balance; that the payments to such parties are in their nature privileged communications between attorney and client, and that he ought not to be compelled to make the disclosure. * If it be conceded that this is a case wherein an attorney may properly represent all parties concerned in the settlement and adjustment, the rule seems to be well settled that in a controversy between such parties and a third person the attorney will not be compelled, without the consent of the parties, to disclose any communication made to him by them while in the exercise of such professional employment: Root v. Wright, 84 N. Y. 72 (38 Am. Rep. 495); Gruber v. Baker, 20 Nev. 453 (23 Pac. 858). Upon the other hand, the rule is as well settled that in a dispute between parties themselves the attorney is not inhibited from making such disclosures where the communication was made in the presence and hearing of all concerned, or was intended for the mutual information of all: Micheal v. Foil, 100 N. C. 178 (6 Am. St. Rep. 577, 6 S. E. 264); Britton v. Lorenz, 45 N. Y. 51; Rice v. Rice, 14 B. Mon. 417; Carey v. Carey, 108 N. C. 267 (12 S. E. 1038); Hughes v. Boone, 102 N. C. 137 (9 S. E. 286); Gulick v. Gulick, 39 N. J. Eq. 516; Goodwin Gas Stove Company’s Appeal, 117 Pa. St. 514 (2 Am. St. Rep. 696, 12 Atl. 736); House v. House, 61 Mich. 69 (27 N. W. 858, 1 Am. St. Rep. 570); In re Bauer’s Estate, 79 Cal. 304 (21 Pac. 759); Hanlon v. Doherty, 109 Ind. 37 (9 N. E. 782). The reason of the latter rule is stated in Rice v. Rice, 14 B. Mon. 417, which is, in effect, that as the parties are all present at the same time, or are entitled alike to the same knowledge, the matter communicated is not in its nature private, and consequently that, as between the parties, and in so far as they are or can be concerned, it cannot, in any sense, be deemed a subject of confidential communication made by one which the duty of the attorney inhibits him from disclosing to the other. And, in conclusion Simpson, J., says: “The statements of parties made in the presence of each other may be proved by their attorneys, as well as by other persons, because such statements are not in their nature confidential, and cannot be regarded as privileged communications.”

Now, the case at bar presents a condition of affairs in which there is a dispute between one of the parties and the attorney, and it is contended by the defendant’s counsel that the attorney stands in the position of a stranger, and that the rule should be applied as where the controversy is between one of the parties to the communication and a stranger. In this view we cannot concur. If it was a matter of common knowledge between the parties to the settlement as pertains' to the persons to whom this balancé was paid, the knowledge or the communications by which it was obtained by all cannot be considered as privileged in so far as the parties are concerned, and the attorney is not inhibited by anjr duty devolving upon him from communicating such knowledge from one to the other. The knowledge would be matter common to all, the attorney included, and for that reason is not privileged, as it concerns them all. So that in a controversy between one of the parties and the attorney the communication would be a matter of common knowledge between parties to that controversy, and the reason assigned why it is not privileged as. between the parties to the settlement is equally as strong, and has like application as between one of the parties and the attorney. The court was therefore in error in not requiring the defendant to answer. The information which the plaintiff sought to elicit would seem to be pertinent to the issue, which was whether defendant had converted any of this money to his own use. He claims that he paid it to certain parties under the direction of the plaintiff, and it is, therefore, an important factor in the logical course of an examination touching the transaction to ascertain and know to whom it was paid, and was, therefore, proper subject-matter respecting which to pursue a cross-examination of the witness. The judgment of the court below will therefore be reversed, and the cause remanded for such other proceedings as may seem pertinent, not inconsistent with this opinion.

Reversed.