In re Sherin

HANEY, J. In its former decision, this court concluded: “The evidence submitted proves the said A. Sherin, while acting as an officer of this court, to have been guilt)? of the crime of writing letters with the intent to extort money and other property from others, as defined in section 638, Rev. Penal Code, which conduct demands the condemnation of this court, and requires this court to' either suspend or disbar respondent from practicing as a member of the bar of this court.” In re Sherin, 27 S. D. 232, 130 N. W. 761. On the rehearing, it was contended (x) that the letters referred to in such decision were not admissible for the reason they were communications between a husband and wife, and (2) if admissible respondent was not guilty of conduct for which, he should be either disbarred or suspended. [1] The letters in question were written and mailed by the respondent, who was the attorney of the wife of the person to whom they were sent. They were signed “A. Sherin.” They did not purport to have been written by the wife, or to be her letters. An attempt was made to show that they were in fact her letters, but she, as a witness for respondent, testified on cross-examination as follows: “Q. You say that you dictated these letters to Mr. Sherin that he wrote to your husband while he was away? A.’ I -didn't say I dictated. I said I authorized him to do what [421] he thought was right.” So the letters were not in any sense letters of the wife to her husband. They were precisely what they purported to be — communications between the wife’s attorney and her husband — and as such were not privileged under the statute in this state, or under the rules of evidence in any jurisdiction, so far as our research has extended. In all the decisions cited by the respondent, the communication was either a conversation between husband and wife, or a letter written and signed by one or the other. The question here involved is not whether every communication “made by one to the other during the marriage” (Rev. Code Civ. Proc. § 486) is privileged, regardless of the nature of the communication. On that question no opinion is expressed. Whether the phrase “any communication” was intended to mean only confidential communications, as construed by some courts, need not now be determined. Neither the statute nor the common law extends the privilege under discussion ■ to communications made by a third person to either the husband or wife. No reason exists for so extending it. “The essence of the privilege is to protect confidences only.” 4 Wigmore on Ev. §' 3336. The statute does not, by its terms or by implication, exclude communications made by the attorney of one spouse to the other. Such were the communications in this case. If these letters, though written by the respondent, were signed by the wife — if they were in fact her letters — the situation would be substantially different. Though she may have known their contents before they were sent, may have approved of the same, and may have expressly authorized the respondent to send them, they were not her letters; they were the letters of her attorney, and were not communications made by her within the meaning of the statute excluding communications between husband and wife. For this reason, they were clearly admissible on the trial of this proceeding, notwithstanding the wife testified that she had not consented to their introduction. It, therefore, is unnecessary to consider whether or not they were admissible for the further reason that they had passed into the hands of third persons, who produced the copies which were received in evidence. [422] After a careful reconsideration of the record, the court adheres to the conclusion announced in its former decision concerning the means employed by the respondent to induce his client’s husband to comply with her demands. Such demands may have been just; the wife may have been entitled to all respondent sought to obtain for her; but this court, as indicated in its former decision, cannot approve of the methods employed by the respondent to secure his -client’s rights. It clearly appeal's that he intended to induce the husband to accede to his wife’s demands through fear of being accused of a crime; and that he intended the husband to understand that he would not be prosecuted for such crime if he. did accede to such demands. The fact that such demands were just, that the object sought was a laudable one, does not render the means employed any less unprofessional, though that fact should be considered in determining whether defendant ought to be disbarred or only suspended. In view of all the circumstances disclosed by the record, it is the conclusion'of the .court that the respondent should be suspended for 30 days from and after the filing of this' decision. [2] As respondent has been compelled to incur considerable expense in defending numerous charges embraced by the accusation, which were not proven, neither party will be allowed to recover any costs or disbursements in this court.