WHERE ATTORNEY HAS VIOLATED HIS TRUST.

623

are under the necessity of employing clerks, it has been since held, that such clerks cannot be permitted to disclose facts coming to their knowledge in the course of employment, unless the barrister or attorney himself might have been interrogated respecting them (). So, where a plaintiff, at the instance of his solicitors, sent out an agent to India, for the express purpose of collecting evidence for him in a pending suit, letters written by the agent either to the plaintiff himself or to his solicitors on the subject of the evidence, have been held to fall within the protection of the rule (m).

§ 669. As the privilege is established, not for the benefit of the attorney, but for the protection of the client (n), it would seem to extend to an executor in regard to papers coming to his hand as the personal representative of the attorney (o). If, however, an attorney, in violation of his duty, should voluntarily communicate to a stranger the contents of an instrument with which he was confidentially intrusted, or should permit him to take a copy, the secondary evidence so obtained would, it seems, be admissible, provided that notice to produce the original were duly given, and the production were resisted on the ground of privilege (p). Indeed, it has more than once been laid down, that, though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, provided they be pertinent to the issue. For the Court

(1) Taylor v. Forster, 2 C. & P. 195, per Best, C. J., cited with approbation in 12 Pick. 93; Foote v. Hayne, 1 C. & P. 545; Ry. & M. 165, S. C., per Abbott, C.J.; Bowman v. Norton, 5 C. & P. 177, per Tindal, C. J.; R. v. Upper Boddington, 8 D. & Ry. 726, per Bayley, J.; Mills v. Oddy, 6 C. & P. 731; Jackson v. French, 3 Wend. 337.

(m) Steele v. Stewart, 1 Phill. 471.

(n) Herring v. Clobery, 1 Phill. 96, per Lord Lyndhurst, Ch.; B. N. P. 284 a. (0) Fenwick v. Reed, 1 Meriv. 114, 120, arg.

(p) Lloyd v. Mostyn, 10 M. & W. 481, 482, per Parke, B., questioning the contrary decision of Bayley, J., in Fisher v. Heming, cited 1 Ph. Ev. 170. Parke, B., likened it to the case of an instrument being stolen, and a correct copy taken, and asked whether it would not be reasonable to admit such copy? If the client sustains any injury from such improper disclosure being made, an action will lie against the attorney. Taylor v. Blacklow, 3 Bing. N. C. 235.

624

ATTORNEY MUST BE ACTING AS LEGAL ADVISER.

will not take notice how they were obtained, whether lawfully or unlawfully, nor will it raise an issue to determine the question (g).

§ 670. In order to protect communications, they must have been made to the legal adviser, while he was acting, or at least while he was considered by the client as acting (r), in that capacity. The rule, however, does not require any regular retainer, or any particular form of application or engagement, or the payment of any fees; it is enough if the legal adviser be, in any way, consulted in his professional character (s). But it would seem, that if a person be consulted confidentially, under the erroneous supposition that he is an attorney, he will be compelled to disclose the matters communicated (t); and where a prisoner in custody on a charge of forgery wrote to a friend, requesting him "to ask Mr. G. or any other attorney" a question respecting the punishment of forgery, the letter was admitted in evidence, on the ground that it did not appear that the relation of attorney and client ever subsisted between Mr. G. and the prisoner (u). So, if a party were to go to an attorney to discount a forged note, or to raise money on a forged will, what passed at the interview would of course not be privileged, unless, perhaps, in the event of the attorney being consulted as the party's own solicitor (v).

§ 671. We have hitherto been considering the question of privileged communications, with respect to cases in which the legal adviser either is called as a witness, or has a bill of discovery filed against him in Chancery; but although the privilege is, as we before observed, that of the client, and not that of the professional adviser, the rule of protection has not been laid down in equally broad terms, where the client himself is the party interrogated.

(9) Legatt v. Tollervey, 14 East, 302; Jordan v. Lewis, id. 305, n. ; Doe v. Date, 3 Q. B. 619; Com. v. Dana, 2 Metc. 329, 337.

(r) Smith v. Fell, 2 Curt. 667. There, a communication was held to be privileged, which was made by a party to a solicitor, under the impression that the latter had acceded to a request to act as his legal adviser.

(s) Foster v. Hall, 12 Pick. 89. See also Bean v. Quimby, 5 N. Hamp. 94. (t) Fountain v. Young, 6 Esp. 113, per Sir James Mansfield, C. J.

(u) R. v. Brewer, 6 C. & P. 363, per Park, J.

(v) R. v. Farley, 2 C. & Kir. 313, 317,318. See ante, § 661; post, § 674.

1

RULE OF PROTECTION WHEN CLIENT INTERROGATED.

625

It has indeed been established, that, in this event, all communications between the solicitor and client, whether pending, and with reference to litigation, or made before litigation and with reference thereto, or made after the dispute between the parties followed by litigation, though not in contemplation, or with reference to, that litigation, are protected; as also are communications made respecting the subject-matter in question, pending, or in contemplation of, litigation on the same subject with other persons, with the view of asserting the same right (w). If, however, communications pass between a client and solicitor before any dispute has arisen between the client and his opponent, the opponent can compel the client, by a bill in equity, to disclose these communications, although they relate to the matters which form the subject of the suit, except so far as they contain mere legal advice or opinions (x). This doctrine was propounded by the House of Lords (y) at a time. when the subject of professional confidence was not developed to the same extent as it is at the present day (z); but although the case in which it was so held has been since disapproved of by almost every judge under whose notice it has been brought, and its principle has more than once been successfully exposed and refuted, yet, as a decision of the Court of Last Resort, it must be reluctantly followed till the Legislature shall think fit to interfere, or the question shall arise in a suit of sufficient importance to warrant a second appeal to the House of Peers (a).

(w) Holmes v. Baddeley, 1 Phill. 476; per Wigram, V.-C., in Lord Walsingham v. Goodricke, 3 Hare, 124, 125, citing Bolton v. Corp. of Liverpool, 3 Sim. 467; 1 Myl. & K. 88, S. C.; Hughes v. Biddulph, 4 Russ. 190; Vent v. Pacey, 4 Russ. 193; Clagett v. Phillips, 2 Y. & C., C. C. 82; Combe v. Corp. of London, 1 id. 631. See also Woods v. Woods, 4 Hare, 83; Adams v. Barry, 2 Y. & C., C. C. 167; Knight v. Marq. of Waterford, 2 Y. & C. Ex. R. 38; Curling v. Perring, 2 Myl. & K.38; and Nias v. Northern and Eastern Railway Co., 3 My. & Cr. 355. These cases overrule Preston v. Carr, 1 Y. & Jer. 175, and Newton v. Beresford, 1 You. 376. See 3 Hare, 129.

(x) Lord Walsingham v. Goodricke, 3 Hare, 122, per Wigram, V.-C., reluctantly submitting to Radcliffe v. Fursman, 2 Bro. P. C. 514, tom. ed. See also Greenlaw v. King, 1 Beav. 137, where Lord Langdale compelled a son and heir to discover a case, which had been submitted to counsel by his father, and had come with the estate to his hands.

(y) Radcliffe v. Fursman, 2 Bro. P. C. 514, tom. ed.

(*) Per Wigram, V.-C., 3 Hare, 127.

(a) See Bolton v. Corp. of Liverpool, 1 My. & K. 88, per Lord Brougham;

SS

626

ATTORNEY ACTING FOR OPPOSITE PARTIES.

§ 672. If an attorney be employed for two parties, as for mortgagor and mortgagee, and peruse on behalf of the former his abstracts of title, he cannot, as against him, disclose their contents (b); and where a professional man was engaged by vendor and purchaser to prepare the deeds, and the draft conveyance was confidentially deposited with him by both parties, it was held that he could not produce it at the trial against the interest of the purchaser's devisees, though with the consent of the vendor (c). If, however, an attorney, acting as such for opposite parties, has an offer made to him by the one for the purpose of being communicated to the other, he may be called upon to disclose the nature and terms of this offer at the instance of either party (d). And, where two persons, having a dispute about a claim made by one of them upon the other, went together to an attorney, when one of them made a statement, and instructed the attorney to write a letter to a third party on the subject of the claim,-it was held that both the statement and the letter were admissible in evidence (e). In all these cases the question would seem to be, was the communication made by the party to the witness in the character of his own exclusive attorney? If it was, the bond of secrecy is imposed upon the witness; if it was not, the communication will not be privileged (ƒ).

§ 673. The protection does not cease with the termination of the suit, or other litigation, or business, in which the communications were made; nor is it affected by the party's ceasing to employ the attorney, and retaining another, nor by any other change of

Pearce v. Pearce, 16 Law J. N. S. Ch. 153, per K. Bruce, V.-C. ; Walker v. Wildman, 6 Madd. 47; Preston v. Carr, 1 Y. & Jer. 175; Lord Walsingham v. Goodricke, 3 Hare, 127-130; Bishop of Meath v. Marq..of Winchester, 10 Bli. 375, 455. See also two articles in Law Mag. vol. xvii., pp. 51-74, and vol. xxx., pp. 107-123.

(b) Doe v. Watkins, 3 Bing. N. C. 421; 4 Scott, 155, S. C. But see R. v. Avery, 8 C. & P. 596, cited post, § 674.

(c) Doe v. Seaton, 2 A. & E. 171; 4 N. & M. 81, S. C.

(d) Baugh v. Cradocke, 1 M. & Rob. 182; Cleve v. Powel, id. 228; Perry v. Smith, 9 M. & W. 681.

(e) Shore v. Bedford, 5 M. & Gr. 271. See also Griffith v. Davies, 5 B. & Ad. 502, and Weeks v. Argent, 16 L. J. N. S. Ex. 209.

(f) Perry v. Smith, 9 M. & W. 682, 683, per Parke, B.

PROTECTION REMAINS FOR EVER.

627

relation between them, nor by the attorney's being struck off the rolls (g), nor even by the death of the client. The seal of the law, once fixed upon the communications, remains for ever (h), unless removed by the party himself, in whose favour it was there placed (i); and, therefore, if the client becomes a bankrupt, his assignees cannot waive the privilege without his particular permission (j). Neither does the client waive his privilege by calling the attorney as a witness, unless he also examines him in chief to the matter privileged (k); and even in that case, it has been held in Ireland, that the cross-examination must be confined to the point upon which the witness has been examined in chief ().

§ 674. Whether the protection can be removed without the client's consent, in cases where the interests of criminal justice require the production of the evidence, may admit of some doubt. In one case where a party had intrusted an attorney with a promissory note, and had instructed him to bring an action upon it, Mr. Justice Holroyd held that the attorney ought not to produce the note, on the trial of a subsequent indictment against his client for forgery (m); and a similar decision appears to have been pronounced by the Court of King's Bench in the time of Lord Mansfield (n). On the other hand, Mr. Justice Patteson has expressed an opinion that the first case above cited is not law, and has compelled an attorney, who had been employed by a mortgagor and mortgagee to negotiate a loan between them, and had received from the former a forged will as part of his title-deeds, to produce the will on a trial of the mortgagor for forging that instrument (0).

(9) Earl Cholmondeley v. Lord Clinton, 19 Ves. 268.

(h) Wilson v. Rastall, 4 T. R. 759, per Buller, J.; Parker v. Yates, 12 Moore, 520. (i) Merle v. More, Ry. & M. 390, per Best, C. J.; Baillie's case, 21 How. St. Tr. 341, 358, 408. "If the client be willing, the Court will compel the counsel to discover what he knows," per North, C. J., in Lea v. Wheatley, in C. B. Parch. 30 Car. 2, cited in note to 20 How. St. Tr. 574.

(j) Bowman v. Norton, 5 C. & P. 177, per Tindal, C. J.

(k) Vaillant v. Dodemead, 2 Atk. 524; Waldron v. Ward, Sty. 449; Bate v. Kinsey, 1 C. M. & R. 38.

(7) M'Donnell v. Conry, Ir. Cir. R. 807, per Richards, B.

(m) R. v. Smith, cited in 1 Ph. Ev. 171.

(n) R. v. Dixon, 3 Burr. 1687. See also Anon., 8 Mass. 370. Avery, 8 C. & P. 596, 599. See also ante, §§ 661, 670.

(0) R. v.