Blount v. Kimpton

• Decision Date: 08 January 1892
• Citation: 155 Mass. 378,29 N.E. 590
• Parties: BLOUNT v. KIMPTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 378

29 N.E. 590

BLOUNT v. KIMPTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1892

COUNSEL

P.B. Kiernan, for plaintiff.

N.B. Bryant and F.W. Kaon, for defendant.

OPINION

MORTON, J.

The defendant does not question the well-settled rule that confidential communications made by a client to an attorney, for the purpose of obtaining his advice and assistance in reference to the matter which is the subject of them, cannot be disclosed by the attorney without the consent of the client. Foster v. Hall, 12 Pick. 89. He claims that, if they are made in the presence and hearing of a third person, that removes the privilege, and makes the testimony of the attorney concerning them admissible. But, as between the client and attorney, they are still confidential, though made in the presence or hearing of a third party. The only effect of that is that they are less confidential in fact, and that such third party may testify to them. It does not qualify the attorney as a witness. Hoy v. Morris, 13 Gray, 519.

The defendant also urges that the privilege has been waived by the plaintiff, for the reason, as he claims, that in the municipal court the plaintiff called the attorney as a witness, and interrogated him as to the conversation between the attorney and himself when the former was acting as counsel for him in reference to the transaction now in suit. It is possible that the fact may have been as the defendant claims. It is possible, also, that the attorney may not have testified or have been interrogated by the plaintiff as to the conversations. The fact that he testified to other things would constitute no waiver of the privilege as to the conversations. Montgomery v. Pickering, 116 Mass. 227. The exceptions do not state that he testified to the conversations, but to the "above-mentioned transactions." That may mean, and naturally mean, that he testified to what was done, not to what was said. We cannot assume in favor of the defendant, who is the excepting party, and has the burden, that the fact was as he claims. It is unnecessary to consider, therefore, whether the privilege was or was not waived. Exceptions overruled.