LIBRARY OF THE a.36317 Entered according to Act of Congress, in the year eighteen hundred and ninety-two, by THE LAWYERS' CO-OPERATIVE PUBLISHING CO., In the Office of the Librarian of Congress, at Washington, D. C. E. R. ANDREWS, PRINTER, ROCHESTER, N. Y. LAW OF EVIDENCE IN CIVIL CASES. VOLUME II. CHAPTER XV. PRIVILEGES OF WITNESSES. 289. Confidential Communications. a. Privilege is That of the Client. b. Extent of Rule. d. Views of a Prominent Text-writer. e. Review of Authorities. 290. Self-Criminating Evidence. a. Generally Applied to Criminal Cases. 291. Immunity From Arrest. a. Policy of This Protection. b. Process on Non-resident Witness. c. Service Obtained by Fraud. d. When Mandamus Lies. e. Habeas Corpus Invoked when. f. Witness Excluded From Court Room when. g. Punishment for Contempt. h. Review of Authorities. $289. Confidential Communications. a. Privilege is That of the Client.-Confidential communications between attorney and client are not to be revealed at any time. The privilege is that of the client. Counsel are incompetent, even if they wish to testify to such communications. Chirac v. Rein icker, 24 U. S. 11 Wheat. 280, 6 L. ed. 474; Andrews v. Solomon, 1 Pet. C. C. 356; Rhoades v. Selin, 4 Wash. C. C. 718; Murray v. Dowling, 1 Cranch, C. C. 151; Parkhurst v. Lowten, 2 Swanst. 216; Gresley v. Mousley, 2 Kay & J. 288, 2 Jur. N. S. 156. b. Extent of Rule.-The rule extends to an interpreter between attorney and client, but not to a student in the office of an attorney, not consulted professionally. Andrews v. Solomon, 1 Pet. C. C. 356; Parker v. Carter, 4 Munf. 273; Barnes v. Harris, 7 Cush. 576; Holman v. Kimball, 22 Vt. 555; Du Barre v. Livette, Peake, 77. Communications to attorney's clerk by client, about suit pending, or when the clerk is acting on behalf of his master, is privileged. Landsberger v. Gorham, 5 Cal. 450; Sibley v. Waffle, 16 N. Y. 180; Taylor v. Foster, 2 Car. & P. 195. Agent of attorney cannot be examined as to communications with client on subject of the action to prove his identity. Parkins v. Hawkshaw, 2 Stark. 239. Attorney's clerk is not privileged from answering whether he received a particular paper from client. Eickev. Nokes, Mood. & M.303. Fact of retainer of an attorney is not within the privilege. Attorney may be asked who, and in what character his client employed him. Forshaw v. Lewis, 1 Jur. N. S. 263; Levy v. Pope, Mood & M. 410; Martin v. Anderson, 21 Ga. 301; Gower v. Emery, 18 Me. 79; Brown v. Payson, 6 N. H. 443; Beckwith v. Benner, 6 Car. & P. 681; Chirac v. Reinicker, 24 U. S. 11 Wheat. 280, 6 L. ed. 474. The rule extends to facts disclosed to counsel by client upon an application to draw a deed (Linthicum v. Remington, 5 Cranch, C. C. 546); but not to the protection of communication made to a mere conveyancer, or to a scrivener, or an attorney employed to draw a deed merely, without giving any legal advice in regard to it. Matthews' Estate, 5 Pa. L. J. Rep. 149; Randel v. Yates, 48 Miss. 685; Hatton v. Robinson, 14 Pick. 416; Borum v. Fouts, 15 Ind. 50; De Wolf v. Strader, 26 Ill. 225; Hebbard v. Haughian, 79 N. Y. 54. Facts not confidentially communicated by client are not privileged. Chirac v. Reinicker, supra; Rhoades v. Selin, 4 Wash. C. C. 715; Bank of Columbia v. French, 1 Cranch, C. C. 221. c. What Constitutes Waiver of Privilege.—It cannot be doubted that if a client in his lifetime should call his attorney as a witness in a legal proceeding to testify to a transaction taking place between himself and his attorney while occupying the relation of attorney and client, such act would be held to constitute an express waiver of the seal of secrecy imposed by the statute, and can it be any less so when the client has left written or oral evidence of his desire that his attorney should testify to facts learned through his professional relations upon a judicial proceeding to take place after his death? We think not. If the calling of an attorney as a witness in behalf of his client is an express waiver of the seal of secrecy imposed by the statute, is not also the calling of a physician as a witness by his patient such a waiver? Alberti v. New York, L. E. & W. R. Co. 6 L. R. A. 765, 118 N. Y. 77; Re Coleman, 111 N. Y. 220. A party cannot be asked as a witness whether he is willing to waive his privilege as to confidential communications with a physician. McConnell v. Osage, 8 L. R. A. 778, 80 Iowa, 293. The proposition that the privilege may be waived is also sustained by the following cases: Gyer v. Irwin, 4 U. S. 4 Dall. 107, 1 L. ed. 762; Tipton v. Harris, Peck, 414; Green v. Bonaffon, 2 Miles (Pa.) 219; Woods v. Davis, 34 N. H. 328; Stewart v. Howard, 15 Barb. 26; Farmer v. Robbins, 47 How. Pr. 415; Randall v. Crandall, 6 Hill, 342; Washburn v. Phelps, 24 Vt. 506. d. Views of a Prominent Text-writer.-There is a uniformity in all the judicial decisions upon the right of the client to waive his privilege. That secrecy which covers the confidential communications made by the client to his legal adviser can only be lifted by the client himself. The client may remove the prohibition by consenting that his cousel should be examined. Merle v. Moore, Ryan & M. 390. But such consent cannot be implied by the client merely calling the lawyer as a witness without examining him as to such communications. Vaillant v. Dodemead, 2 Atk. 546; Bate v. Kinsey, 1 Cromp. M. & R. 38. Though such privilege may be waived by the client the waiver must be clear and express. Tate v. Tate, 75 Va. 522. And it is not a sufficient waiver that the client has called the legal adviser as a witness in his behalf (Montgomery v. Pickering, 116 Mass. 227, 231), nor that the client has taken the stand as a witness. Bigler v. Reyher, 43 Ind. 112; Duttenhofer v. State, 34 Ohio St. 91; Alderman v. People, 4 Mich. 414; Barker v. Kuhn, 38 Iowa, 392. But see Woburn v. Henshaw, 101 Mass. 193. See Hageman, Privileged Communications, § 151. As a general rule, there can be no privilege in a third person's interference between man and woman in their negotiations for marriage, to prevent the same. Cooley, Torts, 215n; Townshend, Slander and Libel (3d ed.) 450; "The Count Joannes" v. Bennett, 5 Allen, 170. The truth must be established by competent evidence with as much certainty as would be necessary to convict under an indictment for the same offense; if a material part of the justification fails, then all fail. Townshend, Slander and Libel, $$ 357, 359, 404, 408. The evidence of a waiver, however, must be distinct and unequivocal. In Montgomery v. Pickering, 116 Mass. 231, the plaintiff herself testified, and called as a witness one who had been her legal adviser in reference to the transaction in question. He was not asked as to his communication with his client, but he was cross-examined by defendant's connsel as to all matters of fact which came to her knowledge before the execution of the deed. After the evidence was all in he was recalled and asked by the defendant what conversation he had as counsel with the plaintiff in reference to making the deed and giving the receipt, and for what reason he delivered the deed or advised it. But it was ruled that what passed between counsel and client was not admissible, and the evidence was excluded. It was contended that this ruling was wrong, because exclusion of the evidence offered is a privilege which the client may waive, and in this case has waived, by becoming a witness in her own behalf. But this alone, the court held, does not amount to such a waiver. 1 Whart. Ev. § 584. But the privilege is only for the benefit of the client, and there is no ground for protection when he waives it. 1 Greenl. Ev. § 243; 1 Starkie, Ev. p. 40; Benjamin v. Coventry, 19 Wend. 353; Justice Campbell in Hamilton v. People, 29 Mich. 183. e. Review of Authorities.-The rule as to confidential communications does not extend to third persons present at, a conference between attorney and client. Hoy v. Morris, 13 Gray, 519; Goddard v. Gardner, 28 Conn. 172. If client examines his attorney as a witness, he waives the privilege, and upon cross-examination he must answer generally. Crittenden v. Strother, 2 Cranch, C. C. 464; King v. Barrett, 11 Ohio St. 261; Woburn v. Henshaw, 101 Mass. 193. On waiver or consent by client, attorney may be required to testify. Benjamin v. Coventry, 19 Wend. 353; Fossler v. Schriber, 38 Ill. 172; Riddles v. Aikin, 29 Mo. 453. Attorney cannot claim privilege as to conveyance by bankrupt and wife to him, and by him to wife, there being no action pending. Re Bellis, 3 Ben. 386, 8 Am. L. Reg. N. S. 747, 38 How. Pr. 79, 3 Nat. Bankr. Reg. 199; Re Aspinwall, 10 Nat. Bankr. Reg. 448. Privileged communications between attorney and client include all made for the purpose of professional advice, whether it relates to a suit pending or contemplated, or to any other proper matter |