« AnteriorContinuar »
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,e 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 with holding 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,
o 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,k his agent, or interpreter, m and a like protection is extended to them. In order to make such protection complete, the privilege ought 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."
In consistency with, and in illustration of the prin. ciples 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.
An Award. To all to whom these presents shall come, I, A. B., Recital. of, &c., send greeting : Whereas,9 in and by two several bonds or obligations in writing, under the re- Of bonds. spective bands and seals of C. D., of, &c., and E. F., of, &c., bearing date respectively on or about the, &c., the said C. D. became bound to the said E. F., and the said E. F. became bound to the said C. D. in the penal sum of L. , with conditions thereunder written, to stand to, &c., [state the condition ;] and it was agreed between the said parties that the submission should be made a rule of court, which was afterwards accordingly done; and also that the costs and charges of the said bonds and obligations, and all costs and charges of and attending the said arbitration and award, should be in the discretion and subject to the award of me, the said A. B. Now, Operative know ye that I, the said A. B., having taken upon part. myself the charge and business of the said award, and having been attended by the said parties and their respective attorneys, and having heard the allegations and proofs of both the said parties and their respective witnesses, concerning the several matters
9 See Arbitration Bond, post.
referred to me, do find, award, order, and determine in manner following ; (that is to say,) First, I do find, award, order, and determine, that there is justly
due and owing to the said C. D. from the said A. B. Direction of the sum of L. ; and I do award, order, and award.
direct, that the said C. D., his executors or admini-
Or thus: “ That each of them, the said, &c., shall bear and pay his own costs incurred by him in and about the said submission and reference; and that the sum of L. ,being the amount of the other costs attending the said submission and reference, and of making this award, shall be paid by the said C. D. to me, the said A. B., and that the sum of L. , being one moiety of the said sum of L. , shall, after such payment as aforesaid, be paid by the said E. F. to the said c. D.”