Allen v. . Shiffman

Hoke, J. Tbe only objection insisted on to tbe validity of tbe trial was -tbe reception of tbe testimony of O. C. Frazier, Esq., appearing in tbe present case as attorney for tbe defendant. .Tbe usury alleged as tbe basis of tbe present suit was to some extent involved in a former case between these same parties wbicb bad been settled by compromise at August Term, 1912, of said court, in wbicb transaction tbe witness bad appeared as attorney for tbe plaintiff. In tbe present trial tbe attorney, considering tbat bis position wa's to some extent reflected on in tbe testimony of tbe plaintiff, was allowed to withdraw from tbe case as attorney and become a witness for defendant. Plaintiff objected to certain portions of tbe witness’s testimony, on tbe ground tbat it was in violation of tbe accepted principle wbicb forbids disclosure of “confidential communications between tbe attorney and *579 client.” Tbe position is fully recognized, but it only extends to communications in tbe course of tbe attorney’s employment and wbicb may properly be regarded as confidential in tbeir nature, and, so far as we can see, on careful perusal of tbe record, tbe only facts spoken to, baying any significance on tbe issue, were concerning a compromise in adjustment of a former suit between these parties wbicb. was effected between tbe witness, wbo was then appearing as attorney for tbe present plaintiff, and David Stem, Esq., now deceased, wbo tben represented tbe defendant, at wbicb both of tbe parties litigant were apparently present and of wbicb all of them were fully cognizant. Tbe facts of such an occurrence could, in no sense, be considered confidential communications within tbe meaning of tbe principle, and tbe exception, therefore, must be overruled. An objection very similar was disallowed in R. R. v. R. R., 147 N. C., pp. 368-388, and, speaking to tbe position, tbe Court said: “Tbe objection to tbe testimony of one whp bad been of counsel for Howland, tbe original lessee, as to tbe fact that tbe Ives contract was mentioned and referred to at tbe time of taking tbe lease is without merit. This was a fact necessarily known to both parties, brought out during tbeir negotiations concerning tbe lease, and could in no sense be considered a confidential communication. Weeks on Attorneys, 289; Wigmore Evidence, 2311, 2312; 23 A. and E., 67; Elliott v. Elliott, 92 N. W., 1008, citing with approval Hills v. State, 61 Neb., 598, reported in 57 L. R. A., 155.” And, in Dearsier v. Walkup, 43 Mo. App., 625, it was held: “Professional communications between attorney and client. are protected from motives of public policy, but tbe rule will not apply where tbe transaction shows tbe matter was not private, and could not in any sense be termed tbe subject of a confidential disclosure, as when, like this case, tbe disclosure was made in tbe presence of tbe opposite party.” There is no error, and tbe judgment for tbe defendant is affirmed. No error.