« ForrigeFortsett »
As it is necessary for the fair investigation of, and adjudication upon every case, that parties should be put as much on an equality as possible, and this equality could never be obtained if parties were compelled to conduct their own cases in person, they were permitted to employ others to act in their stead, or, as it is now more technically called, as their attorneys, in the conduct of their suits in the different courts of justice. And as they were not permitted to give evidence for themselves, on the one hand, so, on the other, they were not compelled to give evidence against themselves and for their opponents
. The same rule was applied to those who represented them in court, whether as counsel or attorneys, who could not, therefore, be compelled to give evidence of what was communicated to them by their employers or clients, for the purpose of qualifying them to conduct their cause, and fairly represent their interests.
It must be acknowledged at once, that, unless this rule prevailed, little would have been the value of the privilege of appointing another to conduct a cause, for what could an attorney do for his client, if ignorant of the nature of his case, and how would a person venture to give that information necessary to qualify him to conduct his case, with the know. ledge that he was thereby making his counsel or attorney the witness upon whose evidence his estates might be recovered from him, his reputation lost, or even his life forfeited ?
From these few observations it will be seen, that the person employing the attorney is alone interested in his secrecy as to the communications that he may have made to them, and that the attorney cannot insist upon it as his right, or waive it at his pleasure ; such secrecy is his duty, but his client's privilege, "and, unless waived by him, continues during the whole life of the party confided in," though the relation
Parkhurst v. Lowton, 2 Swanst. 216. w Wilson v. Rastall, 4 T. R. 759.
of client and solicitor may have long ceased to exist between them. And this rule is so strictly enforced, that a party would not be permitted to employ an attorney in the conduct of a suit in which such attorney had previously been engaged for the opposite party, though he might have previously ceased to have been employed, considering that the knowledge which such attorney must have obtained by his previous employment on the other side would give an advantage to the party seeking to engage his services.
So great is the respect which the law shows to this privilege, that a party may in many cases be excluded from obtaining, by the examination of the solicitor, that information which the client himself would not be allowed to withhold.
The exception to the general right which a litigant has to the evidence of every one on his behalf, which exists in the case of attorney and counsel, is strictly confined to the cases which gave rise to it, and the client is therefore not entitled to prevent his opponent from examining his attorney upon any matters which were not communicated by him to such attorney in that character. Solicitors and attorneys, and their agents, proctors, and counsel, are considered as being within the rule, but it does not extend to medical men, spiritual advisers, or any other persons but those I have mentioned. Letters, and other communications, therefore, between co-defendants, with reference to their defence, are not protected from discovery. If an attorney were compellable to disclose the advice he gives, or the communications he may make to his client, the privilege of the latter would be but a dead letter, such advice
3 Greenlaw v. King, 1 Beav. 139. y Vent v. Pacey, 4 Russ. 193.
3 Vallant v. Dodomead, 2 Atk. 524; Greenlaw v. King, 1 Beav. 137.
· Whitbread v. Gurney, 1 Younge, 541.
and communications are therefore equally sacred as those made to him by the client. The circumstance of the relation of attorney and client having once existed, either before or after the communications have taken place, does not extend the privilege to communications made at a time when that relationship did not exist, nor are all the communications which are made during the continuance of that relationship privileged, but those only are so privileged which are made by a person to his own counsel or attorney in their professional character, upon subjects ordinarily within the course and scope of their professional employment, whether with reference to proceedings then pending or not. Lord Brougham, in his judgment in Greenough v. Gaskell, in speaking of the protection afforded to the communications made to counsel, attorneys, or solicitors, said, that, as regards them," it does not appear that the protection is qualified by any reference to proceedings pending or in contemplation. If, touching matters that come within the ordinary scope of professional employment, they receive a communication in their professional capacity, either from a client or on his account and for his benefit, in the transaction of his business, or, which amounts to the same thing, if they commit to paper in the course of their employment, on his behalf, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any court of law or equity, either as party or as witness. If this protection were confined to cases where proceedings had commenced, the rule would exclude the most confidential, and, it may be, • Richards v. Jackson, 18 Ves. 472.
Cuts v. Pickering, 1 Vent. 197.
Wilson v. Rastall, 4 T. R. 753 ; Morgan v. Shaw, 4 Mad. 57.
• 1 Mylne and K. 101.
the most important of all communications, those made with a view of being prepared either for instituting or defending a suit up to the instant that the process of the court issued."
Communications respecting a person's title to his lands,' upon subjects connected with making his will, or the preparation of deeds and other instruments, are considered within the scope of their professional employment, and are therefore privileged.
When the attorney has made himself at all a party to his client's transactions, as by attesting a deed, or assisting in the preparation of a mortgage, on an usurious consideration, or in obtaining a fraudulent release, the privilege ceases to exist ; but, on the contrary, he has in some cases of that character been made a party to a suit against his client in order to obtain a discovery from him, and has, like other agents, similarly situated, been made liable for the costs, in case of his principal's insolvency.
The principle is the same whether the communications are written, or made by word of mouth, or conveyed through any other medium, as the clerk of the counsel, or solicitor,his agent,' or interpreter, and a like protection is extended to them. In order to make such protection complete, the privilege onght to extend to the representatives of the counsel or solicitor into whose hands his papers would most probably fall; and though I cannot find any case in opposition to that view, it does not appear that the point has yet been decided in the affirmative."
! 2 Brod. and Bing. 6.
Anon. Skin. 404; Robson v. Kemp, 5 Esp. 52.
Taylor v. Foster, 2 Car. and P. 195; Foot v. Payne, 1 C. and P. 545; 1 Ry. and M. 165.
Parkins v. Hawkshaw, 2 Stark, N. P. C. 239. m Du Barre v. Lovett, Peak, N. P. C. 78; 4 T. R. 756.
See on this point Mr Wrigram's work on Discovery, p.
In consistency with, and in illustration of, the principles I have adverted to, it has been decided, that the knowledge which a professional adviser may obtain from being present when communications are made to his client,' or from communications made to him from an adverse party or any other person, is not privileged from disclosure, though, in the former case, he might have been present in his professional character, and, in the latter, the communications might have been made to him in that capacity.
• Sandford v. Remington, 2 Ves. 189; Desborough v. Rawlins; 3 M, and C. 515; 1 M. and R. 104.
P Spencely v. Schulenburg, 7 East, 357.