Continental Cas. Co. v. Pogorzelski

• Decision Date: 09 April 1957
• Citation: 82 N.W.2d 183,275 Wis. 350
• Parties: CONTINENTAL CASUALTY CO., a foreign corporation, Respondent, v. Felix POGORZELSKI, Appellant.
• Court: Wisconsin Supreme Court

Page 183

82 N.W.2d 183

275 Wis. 350

CONTINENTAL CASUALTY CO., a foreign corporation, Respondent, v. Felix POGORZELSKI, Appellant.

Supreme Court of Wisconsin.

April 9, 1957.

Bendinger, Hayes & Kluwin, Milwaukee, for appellant.

Shaw, Muskat & Paulsen, Milwaukee, John F. Zimmermann, Milwaukee, of counsel, for respondent.

MARTIN, Chief Justice.

Sec. 269.57(1), Stats. reads:

'The court, or a judge thereof, may, upon due notice and cause shown, order either party to give to the other, within a specified time, an inspection of property or inspection and copy or permission to take a copy of any books and documents in his possession or under his control containing evidence relating to the action or special proceeding or may require the deposit of the books or documents with the clerk and may require their production at the trial * * *.'

Orders contemplated by the statute are discretionary, and we see no abuse of discretion in this matter. It was the opinion of the trial court that the document sought to be inspected is a privileged communication between respondent and its attorneys.

It is provided by sec. 325.22 Stats.:

'An attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon in the course of his professional employment. This prohibition may be waived by the client, and does not include communications which the attorney needs to divulge for his own protection, or the protection of those with whom he deals, or which were made to him for the express purpose of being communicated to another, or being made public.'

The statute is but a re-enactment of the common law, Estate of Smith, 1953, 263 Wis. 441, 57 N.W.2d 727, and the privilege extends to:

'* * * all communications made to a legal adviser duly qualified as such, and employed and acting in that capacity, where the object of the party is to obtain a more exact and complete knowledge of the law affecting his rights, obligations, or duties relative to the subject matter to which such communications relate.' 58 Am.Jur., witnesses, sec. 483, p. 270.

Referring to the privilege of secrecy in communications between attorney and client, this court said in Koeber v. Somers, 1901, 108 Wis. 497, 504, 84 N.W. 991, 993, 52 L.R.A. 512:

'The rule of the common law and of this statute within its proper limits is most salutary. It is essential to the ends of justice that clients should be safe in confiding to their counsel the most secret facts, and to receive advice and advocacy in the light thereof without peril of publicity. Disclosures made to this end should be as secret and inviolable as if the facts had remained in the knowledge of the client alone. Bruley v. Garvin, 105 Wis. 625, 81 N.W. 1038 .'

In Hickman v. Taylor, 1947, 329 U.S. 495, 511-512, 67 S.Ct. 385, 393, 91 L.Ed. 451, the United States supreme court stated:

'Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways--aptly though roughly termed by the Circuit Court of Appeals in this case * * * as the 'Work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the...