Guy v. Avery County Bank

Pee Cukiam. Tbe only question to be considered is presented by an exception to tbe exclusion of evidence. Rule 27% — Practice in tbe Supreme Court. Tbe defendant offered tbe deposition of J. P. Kitcbin for tbe purpose of showing, as a basis of E. C. Guy’s alleged counterclaim, that tbe plaintiff bad admitted bis indebtedness to E. C. Guy and bis purpose to convey certain lots to bim as security. Tbe plaintiff objected for tbe reason that between tbe witness and tbe plaintiff there existed tbe relation of attorney and client and that tbe answer would involve tbe disclosure of a confidential communication. Tbe referee excluded tbe evidence and tbe appellant’s exception was overruled by Judge Scbenck. Tbe witness was a practicing attorney. He testified that be bad not been retained by tbe plaintiff with respect to tbe conveyance of tbe lots but that be bad represented tbe plaintiff in practically all bis real estate transactions in Buncombe County for a number of years as tbe plaintiff called on bim from time to time, and that be and tbe plaintiff occupied tbe “confidential relationship of attorney and client”; that all tbe information he bad received came to bim by reason of this relation; that when they “discussed these things tbe iffaintiff -was talking to bim as bis attorney”; that be bad not been released from tbe privilege of nondisclosure; and that tbe plaintiff would not have made tbe disclosure except for these facts. When tbe relation of attorney and client exists all communications made by tbe latter to bis attorney on tbe faith of such relation are privileged and tbe attorney will not be permitted to disclose them. Hughes v. Boone, 102 N. C., 137; Carey v. Carey, 108 N. C., 267. Tbe *323 attorney’s disqualification with respect to communications between himself and bis client is absolute. McKelvey on Evidence (4 ed.), sec. 244. In 2 Jones on Evidence (2 ed.), sec. 749, it is said: “Tbe privilege bas been recognized, even in cases where tbe attorney did not consider tbat be was acting as counsel, when tbe circumstances were sucb as to show tbat tbe relation of attorney and client actually existed. Communications made to an attorney in tbe courts of any personal employment, relating to tbe subject thereof, and which may be supposed to be drawn out in consequence of tbe relation in which tbe parties stand to each other are under tbe seal of confidence, and entitled to protection as privileged communications. . . . Although tbe burden of showing tbat tbe communication is privileged rests on tbe one asserting tbe facts, whenever tbe communication relates to a matter so connected with tbe employment as attorney as to afford a presumption tbat it was drawn out by tbe relation of attorney and client, it is privileged from disclosure.” "We are not inadvertent to tbe doctrine tbat to be privileged tbe communication should be made as a part of tbe purpose to obtain advice, but it is manifest in tbe present case tbat tbe communication was made by tbe client under a sense of absolute privilege. Affirmed.