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should be allowed no privileged communications;1 but he need not disclose his criminality in other cases, and may claim his privilege at any stage of the collateral inquiries; 2 and it is not error for the court to instruct him as to his rights touching his examination, or to state to him that the testimony might be used against him, and that the announcement made by the prosecutor that his testimony would not be so used, might not be regarded by the judge before whom. he might be tried.3

1 Alderman v. People, 4 Mich. 414; Lockett v. State, 63 Ala. 5; Com. v. Price, 10 Gray (Mass.) 472; Foster v. People, 18 Mich. 266.

142.

2 Pitcher v. People, 16 Mich.

8 Marler v. State, 68 Ala. 580.

CHAPTER XXIII.

PRIVILEGED COMMUNICATIONS.

§ 270. In General; Scope of this Chapter.

§ 271. Between Counsel and Client.

§ 272. Between Physician and Patient.

§ 273. Between Clergyman and Layman.

$274. Between Husband and Wife.

$275. Judges and Arbitrators.

§ 276. State Secrets; Communications between Officials.
§ 277. Secrets of the Jury-Room.

§ 278. Other Cases.

$270. In General; Scope of this Chapter. -No attempt is here made to present all the adjudications upon privileged communications, many of them belonging more properly to the general subject of evidence, than to the more limited one of witnesses; but a selection has been made of such cases as seemed to the writer to furnish the rules governing the competency of attorneys, physicians, clergymen, judges, arbitrators, public officers, and jurors, as witnesses, to testify in relation to facts coming to their knowledge, as such; as well as the right of either party to a valid marriage, to divulge upon the witness-stand a communication had with the other during the existence of such marriage. For many decisions on the general subject not cited here, the reader is referred to the extended works on evidence, of Greenleaf, Phillipps, Taylor, Best, and others.

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§ 271. Between Counsel and Client. Where an attorney is consulted on business within the scope of his profession, the communications between him and his client are strictly confidential; and the attorney should neither be required nor permitted, by any judicial tribunal, to divulge them against his client, if the latter objects to the evidence.1

@ The entire professional intercourse, whatever it may have consisted in, should be protected by profound secrecy. Hence professional communications of every character are forbidden

1 Murray v. Dowling, 1 Cranch, C. C. 151; Jenkinson v. State, 5 Blackf.

(Ind.) 465; Winsor v. Clark, 39 Me.' 428.

to be given in evidence against a client by an attorney.1 And such communications will be protected from disclosure, notwithstanding the absence of any injunction of secrecy.2 By professional communications are meant, not only what the client may have said to his attorney as such, but every fact which the attorney has learned only in his character as attorney.3

But a lawyer may be compelled to disclose by whom he was employed in a cause, and that he was instructed by one person to follow the directions of another in the prosecution of the business, although the knowledge was acquired by confidential consultations as counsel and clients. So he may

be compelled to answer as to the state of a paper that has come into his hands. And a communication made to him by a debtor, who applied to him to draw up a mortgage deed, merely to explain his motives, no legal advice as to the effect of the conveyance being asked or given, is not a privileged communication which, the attorney can refuse to testify to. So, also, terms of compromise, offered by a counsel to the creditors of his client, are not confidential, and must be disclosed. And the same is true of a communication voluntarily made to counsel, after he has refused to be employed by the party making it; or after his employment as attorney

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1 State v. Douglass, 20 W. Va. 770. When he can testify for his client, see Chappell . Smith, 17 Ga. 68; Hines v. State, 26 Ga. 614; Foster v. Hall, 12 Pick. (Mass.) 89; Hatton v. Robinson, 14 Id. 416, 421. See Greenough v. Gaskell, 1 My. & K. 102, 103; Cleave v. Jones, Eng. L. & E. 554; Robson . Kemp, 5 Esp. 52.

2 Wheeler v. Hill, 4 Shep. (Me.) 329; Brand v. Brand, 39 How. (N. Y.) Pr. 193. See, also, Hewitt v. Prime, 21 Wend. (N. Y.) 79; Blunt v. Tunts, Anth. (N. Y.) 180; Re Bellis, 38 How. (N. Y.) Pr. 79. Communications made to a person not an attorney at law, of the party, though made under the obligations of secrecy, are not privileged. Sherman v. Sherman, 1 Root (Conn.) 486; Mills v. Griswold, Id. 383; Calkins v. Lee, 2 Id. 363; Dixon v. Parmelee, 2 Vt. 185. The rule does not apply to attorneys

in fact.

McLaughlin . Gilmore, 1 Ill. App. 563; Holman v. Kimball, 22 Vt. 555; Matthew's Estate, 4 Am. L. J. N. s. 356.

3 State v. Douglass, 20 W. Va. 770. Brown v. Payson, 6 N. H. 443; Gower v. Emery, 6 Shep. (Me.) 79. In Louisiana, an attorney may be called and compelled to testify against his client in respect to matters not confidential. Cox. v. Williams, 5 Mart. (La.) 139; Reeves v. Burton, 6 Id. 283. See also Howard v. Copley, 10 La. Ann. 504.

5 Baker v. Arnold, 1 Cai. (N. Y.) 258.

6 Hatton v. Robinson, 14 Pick. (Mass.) 416. See also Root v. Wright, 21 Hun (N. Y.) 344. 7 McTavish (N. Y.) 113.

v. Denning, Anth.

8 Setzar v. Wilson, 4 Ired. (N. C.) L. 501. But if the communication is

has ceased,1 and, at least in Georgia, as to facts which occurred in another case previous to his employment in the case on trial. So, also, the attorney may divulge where the party who consulted him waives the privilege; and this, although the interest in the subject-matter of the confidential communication has passed to a third person, who objects to the disclosure.3

In what cases an attorney may be compelled to produce papers in his possession, belonging to his client, see the authorities cited below.4

The protection extends to professional communications conveyed to either party by the other through an intermediary channel, such as an interpreter, or agent employed by the attorney, such person being as much bound to secrecy as the attorney himself. Thus the rule of secrecy extends to an attorney's clerk.7

But public policy has engrafted on this general rule an important exception - the communication, to be privileged, must relate to a lawful object; thus it has been quite recently held that communications between a solicitor and his

made to the attorney under the erroneous impression that he has consented to act as such, it is privileged. Smith v. Fell, 2 Curt. (Mass.) 667.

1 1 Greenl. Ev. (14 ed.) § 244. 2 Churchill v. Corker, 25 Ga. 479; Sharman v. Morton, 31 Ga. 34. The privilege seems to be that of the attorney.

Willis v. State, 60 Ga. 613.

3 Benjamin v. Coventry, 19 Wend. (N. Y.) 353 (Bronson, J., dissenting). Compare Bacon v. Frisbie, 80 N. Y. 394. Production of fragmentary parts of an attorney's letter by the client is a waiver of privilege as to the whole letter. West. Union Tel. Co. v. B. & O. Tel. Co., 26 Fed. Rep. 55. That the act of the client in going on the stand as a witness is a waiver, see Woburn . Henshaw, 101 Mass. 193; but he may still object to the disclosure by the lawyer, even though he called him as a witness himself. Montgomery v. Pickering, 116 Mass. 227. That going on the stand is not a waiver by the client, see Hemenway v. Smith, 28 Vt. 701; Bigler v. Rey

her, 43 Ind. 112; Barker v. Kuhn, 38 Iowa, 395; State v. White, 19 Kan. 445; Duttenhoeffer v. State, 34 Ohio St. 91.

4 Andrews v. Ohio &c. R. R. Co., 14 Ind. 169; Anonymous, 8 Mass. 370; Mitchell's Case, 12 Abb. (N. Y.) Pr. 249; People v. Sheriff of New York, 29 Barb. (N. Y.) 622; Coveney v. Tannahill, 1 Hill (N. Y.) 33; Com. v. Moyer, 15 Phil. (Pa.) 397.

5 Du Barré v. Lavette, Peake Cas. 77, explained in 4 T. R. 756; Jackson v. French, 3 Wend. (N. Y.) 337; Parker v. Carter, 4 Munf. (Va.) 273.

6 Parkins v. Hawkshaw, 2 Stark. 239; Bunbury v. Bunbury, 2 Beav. 173; Steele v. Stewart, 1 Phil. Ch. 471; Carpmael v. Powis, 9 Beav. 16.

7 Taylor v. Foster, 2 Car. & P. 195; R. v. Upper Boddington, 8 Dow. & Ry. 726; Jackson v. French, 3 Wend. (N. Y.) 337; Power v. Kent, 1 Cow. (N. Y.) 211; Mills v. Oddy, 6 Car. & P. 728; Bowman v. Norton, 5 Id. 177. And see generally 1 Phil. Ev. (5 Am. Ed.) *130 n.

client with a view to obtaining legal assistance in the commission of a crime, are not privileged, even though the solicitor is ignorant of such intent on the part of his client.1 Such communications partake of the nature of a conspiracy, or attempted conspiracy, and it is not only lawful, but under certain circumstances becomes the duty of the attorney to divulge them. "The relation of attorney and client cannot exist for the purpose of counsel in concocting crimes. The privilege does not exist in such cases."2

§ 272. Between Physician and Patient. The common law does not extend the privilege we are examining to physicians or surgeons, so they and their patients are confined to statutory protection, which in many of the States is as full as exists between attorney and client; 3 nor is it necessary that the relation of physician and patient should actually exist, if the visit was made under such circumstances as to lead the party visited to suppose that the visit was professional, and to act on it as such. Under the New York statute the protection is held to extend to information received by eye or ear from observation of the patient's symptoms, from the patient himself, or from the statements of others around him.5

It needs not that an examination of a patient should be private, to exclude information so derived; nor is it required. that it should be shown, in the first instance, by formal proof, that the information was necessary to enable the physician to prescribe; and even the death of the patient does not remove the prohibition; in such an event the privilege is not limited to the personal representative of the patient, but an

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1 R. v. Cox, 6 Cr. L. Mag. 569, reviewing English cases; People v. Van Alstine, Id. 715.

2 Cox v. Van Alstine, supra, citing the American cases on this point.

3 See the résumé of the statutes, supra, Chap. VIII.; Grattan v. National Life Ins. Co., 15 Hun (N. Y.)

74.

Assoc. v. Beck, 77 Ind. 203; s. c., 40 Am. Rep. 295; Gartside v. Conn. Mut. Life Ins. Co., 76 Mo. 446; s. c., 43 Am. Rep. 765; Linz v. Massachusetts Ins. Co., 8 Mo. App. 363.

6 Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281. Compare Grattan v. National Life Ins. Co., 15 Hun (N. Y.) 74; Collins v. Mack, 31 Ark.

People v. Stout, 3 Park. (N. Y.) 684. Cr. 670.

Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281; s. c., 24 Hun, 43; Edington v. Mutual Life Ins. Co., 67 N. Y. 185; Masonic Mut. Benefit

7 Grattan v. Metropolitan Life Ins. Co., supra. See, also, Same v. Same, 24 Hun (N. Y.) 43; Edington v. Mutual Life Ins. Co., 67 N. Y. 185.

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