Solicitor not consulted as such. Where two parties em ploy the same solicitor. What sort of communications between solicitor and client are privileged. and one Clark and his solicitor, Vallance, signed a note, and it was held that Vallance might prove that the note was given by the defendant to Clark in consideration of his withdrawing all opposition to the defendant's passing his last examination as a bankrupt. (w) And communications made to a person, by profession a solicitor, but not employed as such in the particular business which is the subject of inquiry, are not privileged, though they may have been made confidentially. (x) Where two parties employ the same solicitor, a communication by one to him in his common capacity is not privileged, but may be used by the other. (y) And where a party employs a solicitor who is also employed by the other side, the privilege is confined to such communications as are clearly made to him in the character of his own solicitor. (2) It now remains to be considered what sort of communications made to a solicitor or counsel by his client are entitled to protection. A very eminent writer on the Law of Evidence (a) has laid it down, that the privilege of the client is not confined to cases only where he has employed the solicitor in a suit or cause, but extends to all such communications as are made by him to the solicitor in his professional character and with reference to professional business. And this opinion has been confirmed by a case (b) where it was held that an attorney, to whom an application had been made to draw an assignment of goods, which he declined to do, could not be allowed to disclose that circumstance, a question having arisen whether an assignment subsequently drawn by another attorney, was fraudulent. And in that case Richardson, J., said, that if an attorney were to be consulted on the title to an estate, he would not be at liberty to disclose any information thus communicated to him to the prejudice of his client. And Sir J. Leach, V. C. in Walker v. Wildman, (c) considered the protection to extend to every communication made by the client to his counsel or attorney or solicitor for professional purposes. (d) And al (w) Weeks v. Argent, 16 M. & W.817. (x) Wilson v. Rastall, 4 T. R. 753, 760, and see post, p. 552. In a trial at Nisi Prius at Westminster, an attorney who had drawn an agreement between a sheriff and his under-sheriff, being produced to prove a corrupt agreement between them, was not compelled to discover the matter, and per Holt, C. J., it seems to be the same law of a scrivener; and he cited a case where upon a covenant to convey as counsel shall advise, et consilium non dedit advisamentum being pleaded, conveyances made by the advice of a scrivener being tendered and refused, was allowed to be good evidence upon this issue; for he is a counsel to a man with whom he will advise, if he be instructed and educated in the way of practice, otherwise of a gentleman, parson, &c,, Anonymous Skinn. 404. And in Turquand v. Knight, 2 M. & W. 98, it appeared that Knight had applied to an attorney to procure him a loan of money, and it was contended that where an attorney was employed to raise money, that was not such an employment as brought him within the rule; and that here he was acting as a scrivener only. Lord Abinger, C. B., said, 'As to the point of this document being brought to him in the character of a scrivener, Lord Nottingham laid it down that he would not compel a scrivener to disclose the communications made to him.' Harvey v. Clayton, 2 Swanst. 221 n. (y) Baugh v. Cradocke, 1 M. & Rob. 182, Patteson, J. Cleve v. Powell, 1 M. & Rob. 228, Lord Denman, C. J., saying, 'either party has a right to the disclosure.' (z) Perry v. Smith, 9 M. & W. 681, per Parke, B.; in which case it was held that the same attorney having been employed upon the sale of an estate by the vendor and purchaser, a communication from the purchaser to the attorney, asking him for time to pay the purchase money, was not privileged. See Griffith v. Davies, per Parke, J., supra, note (t). (a) Phill. Ev. 7th ed. 143. (b) Cromack v. Heathcote, 2 B. & B. 4. (c) 6 Madd. 47. (d) And from the cases of Brard v. though Lord Tenterden, C. J., on several occasions, both before and since the case of Cromack v. Heathcote, expressed at Nisi Prius a contrary opinion, (e) yet it is now clearly settled that the privilege of professional confidence is not limited to cases in which a suit is in contemplation, (f) but that the client's privilege extends much beyond communications in respect of a suit. (g) Thus, where it was proposed to ask an attorney whether a person had not applied to him to draw a conveyance, Parke, J., refused to allow the question to be asked, saying, 'I am of opinion that the privilege applies to all cases where the client applies to the attorney in his professional capacity, and an application to draw a deed is, I think of that description. (h) with that the courts over solicitors. In one case, (i) Alderson, B., said, 'The rule seems to be corre- The rule is lative with that which governs the summary jurisdiction of the correlative courts over attorneys. In Ex parte Aitken, (j) that rule is laid down which governs thus: "Where an attorney is employed in a matter wholly uncon- the summary nected with his professional character, the Court will not interfere jurisdiction of in a summary way to compel him to execute faithfully the trust reposed in him; but where the employment is so connected with his professional character, as to afford a presumption that his character formed the ground of his employment by the client, there the Court will exercise this jurisdiction." So where the communication made relates to a circumstance so connected with the employment as a solicitor, that the character formed the ground of the com- · munication, it is privileged from disclosure.' Thus communications On sale of made in relation to the sale and purchase of estates are protected; estates. a solicitor, therefore, who has been employed in the purchase and sale of estates, cannot be asked as to a communication made to him by the party who employed him. (k) So a solicitor who, being resorted to by a borrower to raise money for him, peruses on the part of the proposed lender the abstracts of the borrower, is not allowed to give evidence concerning them. (1) But where a treaty had been entered into by B. with E. for the exchange of lands, and an abstract was handed by the attorney of E. to the attorney of B., and he compared it with the title deeds, and the attorney of B. on being called upon to produce the abstract stated that his client claimed to Ackerman, 5 Esp. 120, and Robson v. (e) Wadsworth v. Hamshaw, 2 Brod. & Bing. 5, note (a). Manning's Dig. 374. Williams v. Mundie, R. & M. N. P. C. 34. (f) Phill. Ev. 168. (g) The opinion of Lord Chancellor Brougham, Tindal, C. J., Lord Lyndhurst, C. B., and Parke, B., in Greenough v. Gaskell, Mylne & K. 98, as stated 4 B. & Ad. 876, per Parke, B. (h) Doe d. Shellard v. Harris, 5 C. & P. 592. The learned Baron also held in the same case that the attorney could not be asked whether the party had asked his advice for a lawful or for an unlawful purpose, saying, there is a great deal of difficulty in the witness's disclosing whether the conference between him and his client was for a lawful or unlawful purpose, without one being told what it 98. (i) Turquand v. Knight, 2 M. & W. (j) 4 B. & Ald. 47. See also Ex parte Yeatman, 4 Dowl. P. R. 304. (k) Mynn v. Joliffe, 1 M. & Rob. 326, Littledale, J. (1) Doe d. Peter . Watkins, 3 Bing. N. C. 421. And see Taylor v. Blacklow, 3 Bing. N. C. 235. Attorney not bound to produce or state the con. tents of any document; purpose of be entitled to the property under the contract of exchange, and that he held the abstract as part of the evidence of the contract, and had not applied to his client for leave to produce the abstract, but was ready to do so, if the judge thought he ought, and the judge answered that there appeared no sufficient reason why he should not, it was held that the abstract was properly produced. (m) Á solicitor is not bound to produce, or to answer any questions concerning the nature or contents of, a deed or other instrument intrusted to him professionally by his client; and the judge has no right to look at the instrument to see if the objection to produce it or to disclose its contents be well founded or not; for the mere statement of the solicitor that he received the document from his except for the client professionally is enough to protect it. (n) But where an attorney refused to produce a deed on the ground that it was one of his client's title-deeds, and his clients had instructed him not to produce it, the privilege was allowed; but the judge directed him to produce the deed and permit a witness to read the indorsement on it, but not the deed itself, for the purpose of identification; it was held that the judge did right, for the privilege is only not to produce the instrument for the purpose of disclosing its contents. (0) identification. The privilege extends to all knowledge, however ob. tained. Attorney not allowed to produce documents, &c., deposited with him by his client. A communication made to a solicitor, if confidential, is privileged in whatever form made; if it would be privileged when communicated in words spoken or written, it will be privileged equally when conveyed by means of sight instead of words. (p) Where, therefore, the attorney of a defendant, at the suggestion of his counsel in consultation, obtained a deed from the defendant, and in the presence of his counsel, and for their information, ascertained its contents, it was held that he was not bound to state its contents.(q) So letters between a defendant and her country or town solicitors, and letters between her country and town solicitors, are privileged.(r) A solicitor will not be allowed to produce a deed which has been deposited with him confidentially in his professional character; and if the deed has been obtained out of his hands, for the purpose of being produced in evidence by another witness, it cannot be received. Thus a copy of a deed which had been obtained from one who had formerly been entrusted with the original in his profes (m) Doe d. Lord Egremont v. Langdon, 12 Q. B. 711. (n) Volant v. Soyer, 13 C. B. 231. (0) Phelps v. Prew, 3 E. & B. 430. Coleridge, J., said that the process of identificatiou might at times involve a disclosure of the contents of the instrument; and when it did it was objectionable. But in this case it did not involve any disclosure of the contents, and was like the case of disclosing a blot of red ink on the back of a deed. (p) 1 Phill. Ev. 169, citing Robson v. Kemp, 5 Esp. R. 54, where it was held that an attorney could not give evidence as to the fact of the destruction of an instrument which he had been admitted in confidence to see destroyed. In Wheatley v. Williams, 1 M. & W. 533, it was held that an attorney is not compellable to state, when examined as a witness, whether a document shown to him by his client in the course of a professional interview was then in the same state as when produced on the trial, e.g., whether it was then stamped or not; and per Lord Abinger, C. B., 'Suppose an attorney when searching for a deed belonging to his client, found another deed which might operate to the client's prejudice, can it be said that he would be bound to produce it? If, therefore, a document be exhibited to an attorney, in pursuance of a confidential consultation with his client, all that appears on the face of such document is a part of the confidential communication." (q) Davies v. Waters, 9 M. & W. 608. (r) Reid v. Langlois, 1 Mac. & Gord. 627. Goodall v. Little, 1 Sim. N. S. 155. And see Penruddock v. Hammond, 11 Beav. 59, Blenkinsop v. Blenkinsop, 10 Beav. 277, as to cases for counsel, &c. Vent v. Pacey, 4 Russ. 193. sional character as a solicitor, is not good secondary evidence against his client. (8) But this case has been doubted. (t) Where a vendor had a draft of conveyance made by his own attorney, from which the deeds were afterwards prepared, and the attorney was paid for this business by the vendor and purchaser in moieties by agreement, but the latter employed an attorney on his own part to look over the draft, which remained afterwards with the vendor's attorney; the Court of King's Bench held that such draft was confidentially deposited with the latter by the purchaser as well as the vendor, and could not be produced on a trial against the interest of the purchaser's devisees, though with the consent of the vendor and his attorney. (u) And even if a solicitor has on one occasion produced a deed entrusted to him by a client under the erroneous compulsion of one tribunal, he will not be bound to produce it before another tribunal. (v) So where an attorney, attending under a subpoena duces tecum, stated that he had a deed in his custody as attorney, but that his clients had instructed him not to produce the deed, which was one of their title-deeds, and he, therefore, refused to produce it, it was held that he was not bound to produce it. (w) So where upon an indictment for Paper reperjury alleged to have been committed on the trial in a County purpose of a Court with reference to the writing on a paper then produced, an cause. attorney was called under a subpoena duces tecum to produce such paper; he had been attorney for the prisoner in the County Court, and had received this paper from the prisoner for the purpose of conducting the case in County Court as his attorney, and he claimed a lien on the paper for his costs; Coltman, J., held that the attorney's possession was the possession of the prisoner, and that he ought not to produce it. (x) ceived for the So on the prosecution for the forgery of a promissory note, an Forged note. attorney who had acquired possession of the note in his professional character from the prisoner was not compelled or allowed to produce it, although subpoenaed so to do, and although he was not employed professionally for the prisoner at the trial, but was originally consulted about the note, for the purpose of suing the party upon it whose name was charged to be forged. (y) But this case has since been doubted. On an indictment for forging a will, Forged will. a solicitor stated that he was applied to by the prisoner to act as his solicitor in raising some money; and that he was the solicitor of the prisoner in raising the money as well as of Williams in the (s) Fisher v. Heming, MS. 1 Phill. Ev. 170, Bayley, J. See also Copeland v. Watts, 1 Stark. N. P. C. 93. (t) I have always doubted the correctness of that ruling. Where an attorney intrusted confidentially with a document, communicates the contents of it, or suffers another to take a copy, surely the secondary evidence so obtained may be produced. Suppose the instrument were even stolen, and a correct copy taken, would it not be reasonable to admit it?' per Parke, B., in Lloyd v. Mostyn, 10 M. & W. 478, where it was held that a copy examined with a bond, produced for the purpose of admission under a judge's order, was admissible, although the attorney who held the bond VOL. III. was not bound to produce it on the trial. (v) Nixon v. Mayoh, 1 M. & Rob. 76. (y) Rex v. Smith, cor. Holroyd, J., NN advance of it; that the prisoner made an application to him; it was objected that this was a privileged communication, as the party was the solicitor for the prisoner; and the preceding case was relied upon. Patteson, J., 'I think that the case cited is not law, (2) and that the solicitor may be examined to show what was the transaction between the parties, and what led to that transaction; but I will reserve the point for the consideration of the judges, if I should hereafter think it necessary to do so.' The witness then stated that the prisoner proposed to mortgage some land, which had been left him by his aunt, and that the prisoner told him the title deeds had been burnt, but that he gave him a paper which he said was his aunt's will. It was again objected that, as the will had been delivered to the witness by the prisoner while he was attorney for the prisoner, he ought not to produce it; Patteson, J., 'I think he is bound to do it. The will was produced and read, and it was the will alleged to be forged. (a) Upon an indictment for forging a will, it appeared that the wife of the prisoner, by his direction, took a will purporting to be the will of W.W. (not the will in question, but another forged will) to Mr. Cadle, a solicitor, and asked if he could advance her husband some money upon mortgage of property under the will of her father, W.W. She left the will with Mr. C., who afterwards returned it to her husband, and communicated to him what had passed with his wife. Mr. C., while the will was in his possession, had made an exact copy of the will, and the prisoner had had notice to produce it, and, not producing it, the copy was tendered in evidence. Mr. C. said, that at the time the will was produced to him he was not acting as attorney of the prisoner, and did not charge for the interview, but if he had been acting as his attorney he should have made a charge; if he had found the security sufficient, he should have advanced the money; he was in no other way acting as the prisoner's solicitor. It was objected that the interview with the prisoner's wife was confidential, and that the conversation, which then took place, and the copy of the will, were not admissible; but the evidence was admitted. And, upon a case reserved, the judges held that the communication was not privileged. (b) The prisoners were convicted of uttering a forged will. One of them having possessed himself of some title deeds from the house () In Reg. v. Tylney and Tuffs, 1 Den. C. C. 319, Patteson, J., said that this observation was too strong, and that Rex v. Smith and Reg. v. Avery were distinguishable. (a) Reg. v. Avery, 8 C. & P. 596. The indictment charged the intent to be to defraud Williams and the attorney in different counts. The prisoner was convicted, but no sentence passed on the indictment for forgery, the prisoner being sentenced on an indictment charging the transaction as a false pretence. Mr. Phillipps, vol. I, p. 171, observes that the distinction between this case and Rex v. Smith is obvious. In Reg. v. Avery, the prisoner deposited the instrument in the hands of his solicitor, not with reference to a suit, nor with reference to any trans action resting solely between themselves, but for the purpose of a money transaction between himself and a third person, and to be disclosed and communicated to that person. In the case of Rex v. Smith, on the contrary, the instrument was deposited with the solicitor for the purpose of a suit in which he consulted him professionally as a matter in confidence between him and his solicitor, and solely for his own interest. The two cases, therefore, are not inconsistent, and the one does not overrule the other.' (b) Reg. v. Farley, Den. C. C. 197, 2 C. & K. 313. Pollock, C. B., in the course of the argument, asked, 'Do you mean that a man may always apply to an attorney to discount a forged bill with impunity?' |