attorney to be proved? A man (without any natural call to it) promotes a prosecution. against another for a capital offence; he is desirous and determined, at all events, to get him hanged; he retains an attorney to carry on the prosecution, and makes such a declaration to him as I have before mentioned (the meaning and intention of which, if the attorney hath common understanding about him, it is impossible he should mistake); he happens to be too honest a man to engage in such an affair; he declines the prosecution; but he must never discover this declaration, because he was retained as attorney. This prosecutor applies in the same manner to a second, a third, and so on, who still refuse, but are still to keep this inviolably secret. At last, he finds an attorney wicked enough to carry this iniquitous scheme into execution. And after all, none of these persons are to be admitted to prove this, in order either to bring the guilty party to condign punishment, or to prevent the evil consequences of his crime with regard to civil property. Is this law? Is this reason? I think it is absolutely contrary to both. . . . The declaration now offered to be proved is of that nature, and so highly criminal, that, in my opinion, mankind is interested in the discovery; and whoever it was made to, attorney or not attorney, lies under an obligation to society in general, prior and superior to any obligation he can lie under to a particular individual, to make it known."

1841, Bronson, J., in Coveney v. Tannahill, 1 Hill N. Y. 33, 35, 41: "It is the privilege of one who is charged with a wrong, either public or private, to speak unreservedly with his counsel in preparing for his defence; but he should not be allowed to stop the mouth of one who was present when the wrong was done, upon the allegation that he was retained as counsel to see, or aid in the transaction. Indeed, I think there can be no such relation as that of attorney and client, either in the commission of a crime, or the doing of a wrong by force or fraud to an individual. The privileged relation of attorney and client can only exist for lawful and honest purposes. . . . Now, if the plaintiff consulted counsel beforehand as to the means, the expediency, or consequences of committing such a fraud, his communications may, perhaps, be privileged; and they are clearly so, as to what he may have said to counsel since the wrong was done. But the attorney may, I think, be required to disclose whatever act was done in his presence towards the perpetration of the fraud. One who is charged with having done an injury to another, either in his person, his fame, or his property, may freely communicate with his counsel, without the danger of having his confidence betrayed through any legal agency. But when he is not disclosing what has already happened, but is actually engaged in committing the wrong, he can have no privileged witness."

1891, Green, V. C., in Matthews v. Hoagland, 48 N. J. Eq. 455, 469, 21 Atl. 1054: “In order that the rule may apply, there must be both professional confidence and professional employment; but if the client has a criminal object in view in his communications with his solicitor, one of these elements must necessarily be absent. The client must either conspire with his solicitor or deceive him. If his criminal object is avowed, the client does not consult his adviser professionally, because it cannot be the solicitor's business to further any criminal object. If the client does not avow his object he reposes no confidence, for the state of facts, which is the foundation of the supposed confidence, does not exist. The solicitor's advice is obtained by a fraud. As I understand the case, the rule, in its different phases and the reasons, may be thus stated: If the client consults the lawyer with reference to the perpetration of a crime, and they coöperate in effecting it, there is no privilege, for it is no part of an attorney's duty to assist in crime; he ceases to be counsel and becomes a criminal. If he refuses to be a party to the act, still there is no privilege, because he cannot properly be consulted professionally for advice to aid in the perpetration of a crime. In the case of a fraud, if it is effected by the cooperation of the attorney, it falls within the rule as to crime, for their consultation to carry it out is a conspiracy, which, on its accomplishment by the commission of the overt act, becomes criminal and an indictable offence."

Looking at the reasons for the privilege, and construing it as strictly as

possible, the first of the above three questions should be answered in the affirmative, but the second and the third in the negative. The decisions apparently reach this general result, except in the second respect, where there is an inclination to mark the line at crime and civil fraud.2 Yet it is diffi

cult to see how any moral line can properly be drawn at that crude boundary, or how the law can protect a deliberate plan to defy the law and oust another person of his rights, whatever the precise nature of those rights may be. The law, in its endeavor to maintain abstract fundamentals, is already sufficiently callous to concrete failures of justice, and needs rather to cultivate greater sensitiveness in such matters.

2. "From a professional legal adviser in his capacity as such"

§ 2300. Persons having Legal Knowledge, but not Admitted to Practice. There is no ground for encouraging the relation of client and legal adviser except when it is formed with one who has been formally admitted to the office of attorney or counsellor as duly qualified to give legal advice. That the person consulted is in fact practising, without formal sanction of the Court, is certainly not sufficient. On the other hand, where a distinct sanction is required for the several grades of Courts within the same sovereignty, a practitioner admitted for a lower Court only is clearly within the privilege for the purpose of litigation before that Court. So, too, a duly admitted practitioner, while acting for a client belonging to his jurisdiction, is within the privilege in whatever other jurisdiction it may be invoked.2 In the few jurisdictions still maintaining the self-stultifying rule that every citizen, even though not possessing any specific qualifications, is entitled to practise at the bar, it may be supposed that a de facto professional practice suffices.3 Finally, a mere student of law, aspiring to future entrance to the profession, is without the privilege, however much legal skill he may possess in comparison with some of those who are within it.1

been much better satisfied if I had found this question an open one"); 1841, Coveney v. Tannahill, 1 Hill N. Y. 33, 35, 41 (privilege held not to cover the execution of an instrument in fraud of creditors; quoted supra); 1858, M'Mannus v. State, 2 Head 213, 216 (questions as to "a contemplated crime," held not privileged); 1891, Alexander v. U. S., 138 U. S. 353, 357, 11 Sup. 350 (communication with regard to a crime or fraud, held privileged otherwise than in the trial for the crime in furtherance of which the communication was made"; this distinction is groundless, upon either principle or precedent, and seems to have been due to a confusion of the old controversy (ante, § 2294) as to communications for other litigation); 1875, People v. Mahon, 1 Utah 205, 208 (communications relating to a contemplated forgery, held not privileged); 1854, Dudley v. Beck, 3 Wis. 274, 283 (fraud; question reserved, whether the mere disclosure of a fraud and the request for aid therein is privileged ; but here a fraudulent agreement between client and attorney to act together was held not privileged).

1 1880, Slade v. Tucker, L. R. 14 Ch. D. 824, 827 (communications to a pursuivant of the Herald's College, assisting in a pedigree protest, held not privileged); 1859, Sample v. Frost, 10 Ia. 266 (consultation with one who

was receiving business to transact as an attorney and expecting to be admitted and was admitted at the next term," held not privileged); 1879, Scales v. Kelley, 2 Lea 706 (licensed practitioner before justices of the peace and the county court, held within the privilege); 1854, Brayton v. Chase, 3 Wis. 456 (privilege held not applicable to one not licensed as an attorney, though practising before a justice of the peace). Contra: 1887, Benedict v. State, 44 Oh. St. 679, 688, 11 N. E. 125 (consultation with one who practised before justices of the peace, but was not admitted to the bar, held privileged; but the Court's remark that nothing was lacking "except the mere form of the admission of the adviser to practice in courts of record shows a singular notion of the guarantees implied in the professional status).

2 1859, Lawrence v. Campbell, 4 Drew. 485 (the privilege applies to a Scotch solicitor, residing in London, and acting for a Scotch client resident in Scotland).

3 1829, Bean v. Quimby, 5 N. H. 94, 97 (communication to one not an admitted attorney, but acting as attorney and legal adviser, held privileged, under a statute permitting any citizen to appear as attorney).

41851, Barnes v. Harris, 7 Cush. 576 (student in an office, not being the attorney's agent or clerk, not privileged); 1890, Schubkagel v.

§ 2301. Attorney's Clerks and other Agents. It has never been questioned that the privilege protects communications to the attorney's clerks and his other agents for rendering his services. The assistance of these.

agents being indispensable to his work, and the communications of the client being often necessarily committed them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney's agents.2

§ 2302. Client's Belief in the Attorney's Status. The theory of the privilege (ante, § 2291) clearly requires that the client's bona fide belief in the status of his adviser as an admitted attorney should entitle him to the privilege. No doubt an intention to employ only such a person is necessary, as well as a respectable degree of precaution in seeking one; but from that point onwards he is entitled to peace of mind, and need not take the risk of a deception, or of a defective professional title.1

§ 2303. Consultation in Attorney's Capacity. An attorney may often be brought into a discussion upon the law, without any purpose of treating his expression of opinion as a service rendered professionally. Such a conversation is not privileged, because the reason of the privilege designs to secure only the freedom of resort to attorneys where some appreciable interest of the client is to be protected and the advice is sought and given with a view to its protection. On the other hand, an attorney may render his services without charge, if he pleases, and hence the mere circumstance that the advice is given gratuitously does not nullify the privilege. In view of the frequency with which some persons seek to obtain informally and gratui

Dierstein, 131 Pa. 46, 54, 18 Atl. 1059 ("A law student is in this respect on no higher plane than a blacksmith retained in a like service"); 1816, Andrews v. Solomon, 1 Pet. C. C. 337, 359 (Washington, J.: "Not one of these reasons [for the privilege] apply to the student"); 1850, Holman v. Kimball, 22 Vt. 555 (a law student having an office of his own, but not yet admitted to the bar; privilege denied).

11825, Taylor v. Forster, 2 C. & P. 195; 1831, Bowman v. Norton, 5 id. 177; 1829, Eicke v. Nokes, 1 M. & M. 303, semble; 1881, Lyell v. Kennedy, L. R. 27 Ch. D. 1, 19 ("such agents as every solicitor's clerk may be said to be ' are privileged); 1855, Landsberger v. Gorham, 5 Cal. 450 (the privilege held applicable to person acting in the capacity of an attorney,' and apparently an attorney's clerk); 1857, Sibley v. Waffle, 16 N. Y. 180, 183, per Bowen, J. Compare the rule as to mere students of law (ante, § 2300).

66

a

The

The amendments to certain of the statutes (ante, § 2292), extending the privilege to the attorney's "clerk, stenographer, or other person employed," were therefore unnecessary. irresponsible presumption of some who undertake to instruct the profession is shown in a certain editorial remark, when pointing out one of these amendments, that it made "a notable change in the law."

persons in the attorney's presence, see post, §§ 2311, 2312. For the distinction between clerks and witnesses or other volunteers, see post, § 2317.

1 Besides the following cases, compare the doctrine as to the client's belief in the relevancy of his communication (post, § 2310), and as to the admissibility of a confession procured by trick (ante, § 841): Admitted: 1807, Fountain v. Young, 6 Esp. 113 (here the person was in fact only a clerk in Newgate); 1890, Hawes v. State, 88 Ala. 38, 7 So. 302 (said obiter); 1859, Sample v. Frost, 10 Ia. 266 (one who was just about to be admitted to the bar); 1851, Barnes v. Harris, 7 Cush. 576 (student in a law office). Excluded: 1886, People v. Barker, 60 Mich. 277, 297, 307, 27 N. W. 539 (confession made to a detective, fraudulently pretending to be an attorney, held privileged); 1893, State v. Russell, 83 Wis. 330, 53 N. W. 441 (communication by a woman in prison to the district attorney and his agent, pretending to be her counsel, held privileged); 1856, Coon v. Swan, 30 Vt. 6, semble.

The following ruling seems peculiar: 1890, Hawes v. State, 88 Ala. 38, 7 So. 302 (communications made "to an attorney in ignorance of his professional character," excluded).

1 1878, Andrews v. Simms, 33 Ark. 771, 773; 1850, Reed v. Smith, 2 Ind. 160; 1897, 2 For the case of communications to third Davis v. Morgan, 19 Mont. 141, 47 Pac. 793.

tously valuable legal advice, and the lamentable frequency with which attorneys weakly submit to such an imposition, especially in rural communities, it is often difficult to determine whether the consultation is a professional one, within the privilege. The local habits of life, and the circumstances of the case, must largely determine the ruling. The case of a consultation of the opponent's attorney seems rather to fall under another head (post, § 2312), as also the case of a consultation by one person not on his own behalf but as the agent of another (post, § 2317).

§ 2304. Time of Consultation; Rejection of Retainer by Attorney. It follows that a communication to an attorney, not in his capacity as such, is without the privilege if made before the relation was entered into or after it was ended. An interesting question, however, arises when the communication is made pending negotiations for the retainer. Here it would seem plain, by the reason of the privilege, that, since the would-be client cannot certainly predict the attorney's acceptance of the employment, the former must be protected in his preliminary statements when making the overtures, even if the overture is refused. It would further be immaterial that the refusal was due

2 Various instances are as follows: Eng. : 1792, Wilson v. Rastall, 4 T. R. 753, 758 (letters handed to an attorney, but not in his character as a professional adviser, held not privileged); 1838, Greenlaw v. King, 1 Beav. 137, 145, Lord Langdale, M. R. (correspondence with a solicitor, but only as agent and confidential friend," not privileged); Can.: 1889, Rudd v. Frank, 17 Ont. 758, 764 (communications as to a friend, held not privileged); U. S. 1893, Patten v. Glover, 1 D. C. App. 466, 476 (consultation as a friend, not privileged); 1887, Brown v. Matthews, 79 Ga. 1, 4 S. E. 13 (consultation held not privileged, where the attorney was "raided," not retained"; it must be "the offspring of the relation, present or prospective, not of taking or expecting to take the fruits of such a relation without forming it "); 1898, O'Brien v. Spalding, 102 id. 490, 31 S. E. 100 (consultation as a friend, not privileged); 1902, Harkless v. Smith, 115 id. 350, 41 S. E. 634 (one who prepared a deed without compensation and in his own interest, held not the legal adviser of the parties); 1852, Goltra v. Wolcott, 14 Ill. 89 (consultation as a friend, not privileged); 1895, McDonald v. McDonald, 142 Ind. 55, 41 N. E. 343 (attorney consulted as a friend by a widow about her husband's affairs, held not privileged); 1896, State v. Swafford, 98 Ia. 362, 67 N. W. 284 (a friendly consultation between the defendant and the then prosecutrix's attorney, to contrive means for helping her to get occupation, held not privileged); 1895, Wade v. Ridley, 87 Me. 368, 372, 32 Atl. 975 (consultation held professional, on the facts); 1903, People v. Pratt, Mich. 94 N. W. 752 (communication to a judge, before examination by the grand jury, with the object of consulting " some one that I have confidence in," held privileged; Grant and Hooker, JJ., diss.); 1886, Romberg v. Hughes, 18 Nebr. 579, 26

39

N. W. 351 (consultation as a friend, not privileged); 1895, Basye v. State, 45 id. 261, 63 N. W. 811 (consultation held not professional, on the facts); 1848, Beeson v. Beeson, 9 Pa. St. 279, 301 (consultation as a friend, not privileged); 1903, Sargent v. Johns, 206 id. 386, 55 Atl. 1051 (similar); 1858, M'Mannus v. State, 2 Head 213 (questions as to "abstract legal opinions," without reference to "some act past, or right or interest in existence," held not privileged); 1856, Thompson v. Kilborne, 28 Vt. 750, 757 (friendly consultation, held, upon the facts and the local custom, not to be a professional consultation; Chief Justice Redfield rebukes the local profession for their lax habits in conversing without formal retainer upon legal subjects); 1856, Coon v. Swan, 30 id. 6 (legal advice given merely "as a neighbor," held not protected); 1873, Earle v. Grout, 46 id. 113, 125 (similar); 1861, Dunn v. Amos, 14 Wis. 106, 109, 114 (legal advice held not a professional consultation on the facts); 1873, Orton v. McCord, 33 id. 205, 211 (legal advice held professional, on the facts); 1900, Bruley v. Garvin, 105 Wis. 625, 81 N. W. 1038 (communication at a casual consultation on a railway train. excluded on the facts).

1 Eng. 1664, Sparke v. Middleton, 1 Keb. 505 (cited ante, § 2290); 1673, Cuts v. Pickering, 1 Ventr. 197; U. S.: 1868, Chillicothe F. R. & B. Co. v. Jameson, 48 Ill. 281, 283; 1870, People v. Barker, 56 id. 299; 1895, Jennings v. Sturdevant, 140 Ind. 641, 40 N. E. 61; 1895, Harless v. Harless, 144 id. 196, 41 N. E. 592; 1901, State v. Herbert, 63 Kan. 516, 66 Pac. 235; 1894, Brady v. State, 39 Nebr. 529, 532, 58 N. W. 161 (even though the same as one made during the relation); 1896, Home Ins. Co. v. Berg, 46 id. 600, 65 N. W. 780; 1816, Yordan v. Hess, 13 John. 492, 494; 1895, Turner's Estate, 167 Pa. 609, 31 Atl. 867; 1901, State v. Snowden, 23 Utah 318, 65 Pac. 479.