Nave v. Baird

12 Ind. 318

• Court: Indiana Supreme Court
• Decided: May 31, 1859
• Status: Published

Opinion

Perkins, J.

Baird sued Nave upon a promissory note for 200 dollars.

Answer by way of counter-claim, alleging that the note was given in consideration that said Baird, an attorney at law, should attend to a certain cause then pending against said Nave in the. Fountain Circuit Court; that Baird did not, in a skillful manner, conduct the defense of the cause, and refused to obey the instructions of his client in these particulars, viz.: that he refused to apply for a change of venue therein, and refused to put in the testimony of certain witnesses. It is further alleged that judgment went against Nave, whereby he was damaged 3,000 dollars, which amount, he claims, should be adjudged in his favor against Baird.

A jury was called to try the issue made. Verdict for ■the plaintiff, upon which the Court rendered judgment.

It is often very difficult for an attorney to determine, in a difficult, critical case, the proper steps to be taken in its prosecution or defense. A small circumstance, a slight injudicious move, may have an extremely prejudicial influence. A change of venue, injudiciously taken, may be construed to imply a consciousness of a bad cause; and an unsuccessful attempt to prove facts affecting prejudicially the character of the opposite party, or any of his witnesses, may so recoil as to turn the scale, in a doubtful case, against the party, attempting it. In such cases, it is the duty of the attorney to advise his client to the best of his judgmént; and it is generally the wiser course for the client to act upon the advice so given; but if he is unwilling to do so, it is safer for the attorney to follow the instructions of his client, so far as the rules of law may permit. But if he does not do so, and the client sues for damages, it will devolve upon him to show, presumptively, that he was injured by the course pursued by the attorney, in order to recover more, at least, than nominal damages.

In this case, it is not proved that the client positively insisted upon a change of venue, though he advised it. Nor is it shown that a case existed in which he could have obtained one. It has been decided that a second application for a change of venue will scarcely be tolerated (Millison v. Holmes, 1 Ind. R. 45); and, upon the same principle, we think, a second change would scarcely be granted upon the application of the same party; while repeated application would place an unfavorable aspect upon the party’s cause.

The evidence which the attorney refused to put into the cause, is incorporated in this record. It justifies the course 0f the attorney; it entirely fails to prove the point to which it was to be offered, and is of a character highly calculated to prejudice the cause of the party who should introduce it. '

M. Nave, in person. S. C. Willson and J. E. McDonald, for the appellees.

There is another point in the case. Associated with Mr. Baird, in the defense, were Messrs. Lane and Willson, of Crawfordsville. They were present at the consultations between Mr. Nave and Mr. Baird; and Mr. Baird, on the trial of this cause, to rebut .testimony introduced by Mr. Nave, as to what transpired in those consultations, offered Mr. Willson as a witness. Mr. Nave objected to his testifying, on the ground that he was not competent to disclose confidential communications.

As a general proposition, an attorney cannot, as’ a witness against his client, disclose such communications. But the rule does not apply where the client sues the attorney for disobeying instructions alleged to have been given in such consultations, and for unskillfully managing a cause upon information given to him by his client in them.

Upon the whole we see no error in the case.

Per Curiam.

The judgment is affirmed with 5 per cent, damages and costs.