Wade v. Ridley

Emery, J. When are statements of facts made .to an attorney at law privileged communications, and when are they not privileged? On the one hand, if made to the attorney as an individual merely, and not to him in his professional capacity, they are not privileged. Neither are they privileged if made to him in his professional capacity, in giving him directions to do some particular thing. Hatton v. Robinson, 14 Pick. 416. On the other hand, it is not essential that the relation of attorney and client exist, for the statements may be privileged when the attorney refuses to accept any employment or give any advice. Sargent v. Hampden, 38 Maine, 581. The test or rule deducible from the authorities seems to be this: If the statements of fact were made to an attorney at law in good faith, for the purpose of obtaining his professional [373] guidance or opinion, they are privileged; otherwise they are not privileged. McLellan v. Longfellow, 32 Maine, 494; Higbee v. Dresser, 103 Mass. 523; Britton v. Lorenz, 45 N. Y. 57; Bacon v. Frisbie, 80 N. Y. 394; Crisler v. Garland, 11 Smed. & M. (49 Am. Dec. 49); Beltzhoover v. Blackstock, 3 Watts, 20 (27 Am. Dec. 330). An order of men, honorable, enlightened, learned in the law and skilled in legal procedure, is essential to the beneficent administration of justice. The aid of such men is now practically indispensable to the orderly, accurate and equitable determination and adjustment of legal rights and duties. While the right of every person to conduct his own litigation should be scrupulously respected, he should not be discouraged, but rather encouraged, in early seeking the assistance or advice of a good lawyer upon any question of legal right. In order that the lawyer may properly perform his important function, he should be fully informed of all facts possibly bearing upon the question. The person consulting a lawyer should be encouraged to communicate all such facts, without fear that his statements may be possibly used against him. For these reasons, the rule above stated should be construed liberally in favor of those seeking legal advice. It does not apply, of course, where it is sought to find a way to violate some law. Measuring the statements made in this case by this rule thus liberally construed, they may come near the line, but we think they are fairly within the rule. The defendant was evidently desirous of obtaining the attorney’s opinion as to his rights and the best mode of enforcing them. For that purpose, he told the attorney of some of his transactions with the plaintiff’s intestate. It is these statements thus made, which his antagonist now seeks to use against him. The plaintiff now insists, however, that the communications disclosed by the attorney were all immaterial to the issue being tried. The issue was as to the ownership of certain live stock and farm movables, which once belonged to the defendant. One material question was, whether he had permitted them, or any of them, to go into the control of the plaintiff’s intestate. [374] He practically admitted to the attorney that most of the stock, at least, had so gone. As the case is presented to us, this admission seems material. Exceptions sustained.