TOPIC B (continued): PRIVILEGED COMMUNICATIONS. SUB-TOPIC II: COMMUNICATIONS BETWEEN ATTORNEY AND CLIENT. § 2290. History of the Privilege. The history of this privilege goes back to the reign of Elizabeth, where it already appears as unquestioned;1 and it 11577, Berd v. Lovelace, Cary 88 (solicitor 1580, Dennis v. Codrington, ib. 143 (on a moexempted from examination touching the cause); tion to examine one Oldsworth, touching a 66 is therefore the oldest of the privileges for confidential communications. Inasmuch as the testimony of witnesses (in the modern sense) did not come to be a common source of proof in jury trials till the early 1500s (ante, § 1364), and as testimonial compulsion does not appear to have been generally authorized until the early part of Elizabeth's reign (ante, § 2190), it would seem that the privilege could hardly have come much earlier into existence; for there could have been but little material for its application. It thus appears to have commended itself, at the very outset, as a natural exception to the then novel right of testimonial compulsion. But the theory of its exclusion, in those days, was very different from that of modern times. It was an objective, not a subjective one, a consideration for the oath and the honor of the attorney, rather than for the apprehensions of his client. How significant the "point of honor" was, until the end of the 1700s, in almost securing other exemptions from testimonial disclosure, has been already seen (ante, § 2286). Clearly the attorney and the barrister are under a solemn pledge of secrecy, not less binding because it is implied and seldom expressed. "The first duty of an attorney," it has been said, "is to keep the secrets of his clients." If the "point of honor" was to be recognized at all as a ground for exemption, then surely the attorney fell within this exemption. And no doubt this was, in the beginning, and so long as any countenance was given to that general doctrine, the theory of the attorney's exemption. 2 That doctrine, however, finally lost ground, and by the last quarter of the 1700s, as already noticed (ante, § 2286), was entirely repudiated. The judicial search for truth could not endure to be obstructed by a voluntary pledge of secrecy; nor was there any moral delinquency or public odium in breaking one's pledge under force of the law. Doubtless the attorney's exemption would have fallen at the same time with the others of like origin, had not a new theory, ample to sustain and even to enlarge it, by that time come to be recognized. That new theory looked to the necessity of providing subjectively for the client's freedom of apprehension in consulting his legal adviser (post, § 2291), and proposed to assure this by removing the risk of disclosure by the attorney even at the hands of the law. The new theory begins to appear matter in variance, wherein he hath been of counsel, it is ordered he shall not be compelled by subpoena or otherwise to be examined upon any matter concerning the same, wherein he the said Mr. Oldsworth was of counsel, either by the indifferent choice of both parties or with either of them by reason of any annuity or fee"); 1580, Kelway v. Kelway, ib. 127 (solicitor of plaintiff to be examined for defendant, " upon any interrogatory which shall not be touching the secrecy of the title or of any other matter which he knoweth as solicitor only "); 1642, Onbie's Case, March pl. 136 ("a lawyer who was of counsel may be examined upon oath as to the matter of agreement, not to the validity of an assurance, or to matter of counsel"; 1654, Roll, C. J., in Waldron v. Ward, Style 449 ("He is not bound to make answer for things which may disclose the secrets of his clyent's cause "); 1664, Sparke v. Middleton, 1 Keb. 505 (counsel required in testifying to tell only "such things as he either knew before he was of counsel or that came to his knowledge since by other persons "); 1673, Legard v. Foot, Rep. temp. Finch 82 (attorney privileged); 1693, Anon., Skinner 404 (counsel privileged). A few other rulings of the 1600s will be found in the ensuing sections. 2 1836, Gaselee, J., in Taylor v. Blacklow, 3 Bing. N. C. 249. This conservative character is said to have been the original of Dickens' judicial fossil, Mr. Justice Stareleigh, who presided in Bardell v. Pickwick. in the early 1700s, coexists with the older one for half a century, and then, upon the latter's disappearance, begins for the first time to be much dwelt upon and thoroughly developed. One consequence of this tardy origin was that the detailed rules of this privilege (oldest though it really was) were still in the formative stage in the first half of the 1800s. Another and most unfortunate one was that, by reason of the inconsistency of the two theories, in some of their practical applications, the older notion, so far as represented in precedents, struggled along for some time by the side of the newer one, like two powerful streams debouching into the same channel; and until the domination of the newer one was finally established throughout its boundaries, a turbid and confused volume of rulings abounded. Probably in no rule of evidence having so early an origin were so many points still unsettled until the middle of the 1800s. The history of the changes of detailed rule that were made necessary by the supervention of the newer theory can better be followed under their separate heads. But it is worth while to sum up here the chief marks of difference. (1) In the first place, under the original theory, the privilege did not at all exempt the client himself. The pledge of secrecy had not been taken by him, and therefore the "point of honor" was not his to make. This, to be sure, was a consequence of little practical moment, except in answering a bill of discovery in chancery; for all through that period the party was privileged in common-law courts from testifying in the trial of civil cases (ante, § 2217). As the newer theory developed, the client began to be exempted from making discovery of communications relating to the very case at bar; but in this stage the matter still stood as late as the first quarter of the 1800s.5 Even up to that period it had to be insisted from the bar that "the privilege is that of the client and not of the attorney." The earliest judicial pronouncement in this form appears to have been made before 1700; but it passed unheeded. Mr. Justice Buller, about 1767, repeats that "it is the privilege of the client and not of the counsel or attorney," but complains that "it is mistaking it for the privilege of the witness that has sometimes led judges into the suffering of such a witness to be examined." Then, when Lord Eldon, in 1801, declares it to be "the privilege of the client and the public," the new theory begins to bear fruit.9 3 The following passage shows the mingling of the two: Ante 1726, Gilbert, Evidence, 136: "After the retainer, they are considered as the same person with their clients, and are trusted with their secrets, which without a breach of confidence cannot be revealed, and without such sort of confidence there could be no trust or dependence on any man, nor any transacting of affairs by the ministry or mediation of another; and therefore the law in this case maintains such sort of confidence inviolable." Post, § 2321. Post, § 2294. The much-cited opinion in Greenough v. Gaskell, in 1833, which to-day seems to declare nothing but commonplaces, was in that generation a leading case because of its bearing on this stage of development. 6 L. C. J. North, in Lea v. Wheatley, 1679, cited in 20 How. St. Tr. 574, note. Trials at Nisi Prius, 284. 8 Wright v. Mayer, 6 Ves. Jr. 281. The persistence of the older notion is seen as late as 1826; Alexander, C. B., in Preston v. Carr, 1 Y. & J. 175, 178: "I cannot accede to the proposition which has been contended for, that the privilege of an attorney is the privilege of the client, to the extent that the client himself may avail himself of that privilege to avoid discovering communications which have passed between him and his solicitor." (2) In the next place, the attorney's exemption was by the original theory limited to communications received since the beginning of the litigation at bar and for its purposes only. The point of honor would protect him thus far; but it was gradually falling into disfavor as the 1700s progressed (ante, § 2286), and it would not be recognized further than could be helped. "When the cause is ended," says Chief Baron Bowes in 1743, "he is then only to be considered, with respect to his former employer, as one man to another; and then the breach of trust does not fall within the jurisdiction of this Court; for the Court can't determine what is honor, but what is law." 10 Under the influence of the newer theory, an extension of the attorney's exemption of course took place, to include communications made, first, during any other litigation,11 next, in contemplation of litigation, next, during a controversy but not yet looking to litigation, and, lastly, in any consultation for legal advice, wholly irrespective of litigation or even of controversy. But this gradual extension occupied (in England, at least) nearly a hundred years of judicial annals; and the shackles of the earlier precedents were not finally thrown off until the decade of 1870.12 (3) It followed also, under the original theory, that the privilege could be waived by the attorney. Since only the attorney's honor is involved, the Court would not always attempt to judge its standards or to enforce them, if the attorney himself was willing to risk his conscience and his reputation. "The Court can't determine what is honor," said Chief Baron Bowes, in 1743.13 Sir John Strange, Master of the Rolls, a decade later,14 when pressed to exclude an attorney's deposition, "who ought not to betray the secrets of their clients," left it to the attorney to do as he pleased; "it is a very right rule; but as he himself has not objected to it, the Court has nothing to do with it." Such liberty, no doubt, was seldom exercised by attorneys; but they clearly had it, under the older theory; and this also took some time in disappearing. It is plain, then, that the newer theory met the older one at several points of conflict; and it is no wonder that the development of the new and the ousting of the old came to be a process of many decades, and brought a residuum of trouble and confusion into the precedents of the 1800s. § 2291. Policy of the Privilege. The policy of the privilege has been plainly grounded, since the latter part of the 1700s, on subjective considerations. In order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisers must be removed; and hence the law must prohibit such disclosure except on the client's consent. Such is the modern theory. In short, all four of the ele ments already noted (ante, § 2285) as essential to such a privilege are here deemed to exist. The policy has been expounded and defended from all points of view in the following passages: 66 1743, Annesley v. Earl of Anglesea, 17 How. St. Tr. 1225; Mr. Recorder (arguing for the privilege) : My lord, formerly persons appeared in court themselves; but as business multiplied and became more intricate and titles more perplexed, both the distance of places and the multiplicity of business made it absolutely necessary that there should be a set of people who should stand in the place of suitors, and these persons are called attornies. Since this has been thought necessary, all people and all courts have looked upon that confidence between the party and attorney to be so great that it would be destructive to all business if attornies were to disclose the business of their clients. In many cases men hold their estates without titles; in others, by such titles, that if their deeds could be got out of their hands, they must lose their fortunes. When persons become purchasers for valuable considerations, and get a deed that makes against them, they are not obliged to disclose whether they have that deed. Now, if an attorney was to be examined in every case, what man would trust an attorney with the secret of his estate, if he should be permitted to offer himself as a witness? If an attorney had it in his option to be examined, there would be an entire stop to business; nobody would trust an attorney with the state of his affairs. The reason why attornies are not to be examined to anything relating to their clients or their affairs is because they would destroy the confidence that is necessary to be preserved between them. This confidence between the employer and the person employed, is so sacred a thing, that if they were at liberty, when the present cause was over that they were employed in, to give testimony in favour of any other person, it would not answer the end for which it was instituted. The end is, that persons with safety may substitute others in their room; and therefore if you cannot ask me, you cannot ask that man; for everything said to him, is as if I had said it to myself, and he is not to answer it." Mounteney, B.; "Mr. Recorder hath very properly mentioned the foundation. . . . that an increase of legal business, and the inabilities of parties to transact that business themselves, made it necessary for them to employ (and as the law properly expresses it, ponere in loco suo) other persons who might transact that business for them; that this necessity introduced with it the necessity of what the law hath very justly established, an inviolable secrecy to be observed by attornies, in order to render it safe for clients to communicate to their attornies all proper instructions for the carrying on those causes which they found themselves under a necessity of intrusting to their care." 1833, L. C. Brougham, in Greenough v. Gaskell, 1 Myl. & K. 98, 103: "The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection (though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers). But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skillful person, or would only dare to tell his counsellor half his case." 1876, Jessel, M. R., in Anderson v. Bank, L. R. 2 Ch. D. 644, 649: “The object and meaning of the rule is this: That as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of |