Peek v. Boone

• Citation: 17 S.E. 66,90 Ga. 767
• Parties: PEEK et al. v. BOONE.
• Decision Date: 09 February 1893
• Court: Georgia Supreme Court

17 S.E. 66

90 Ga. 767

PEEK et al. v. BOONE.

Supreme Court of Georgia

February 9, 1893

Syllabus by the Court.

1. Under the provisions of the act of August 4, 1887 (amendatory of paragraph 5, § 3854, of the Code,) an attorney at law is neither compellable nor competent to testify to any matter or thing, knowledge of which he may have acquired "by reason of the anticipated employment of him as attorney" by one seeking his professional aid and advice; and this is true whether, as matter of fact, the attorney so consulted is or is not afterwards employed to undertake the service concerning which the confidential communication sought to be introduced in evidence was made.

2. The verdict, though not entirely satisfactory to this court, will not be set aside, there being some evidence to support it and it having been approved by the trial judge.

Error from superior court, Butts county; J. S. Boynton, Judge.

Fieri facias by Peek & Sullivan against J. F. Boone. There was judgment in favor of J. M. Boone, who claimed the property under a mortgage fieri facias, and plaintiffs bring error. Affirmed.

Bryan & Dicken, for plaintiffs in error.

W. W Anderson and Wright & Beck, for defendant in error.

LUMPKIN J.

1. The act of 1887, referred to in the first headnote, provides that "no attorney shall be competent or compellable to testify *** to any matter or thing, knowledge of which he may have acquired from his client *** by reason of the anticipated employment of him as attorney." Plaintiffs in error insist that, as the act expressly contemplates the relation of attorney and "client" shall exist, the statute has no bearing upon the facts of this particular case. Counsel argue that, although defendant in error conferred with the attorney sought to be introduced as a witness with a view to his employment in the matter professionally, yet, as that attorney declined to render the services solicited, and in no way represented the defendant in any of the subsequent proceedings growing out of the matter in question, the relation of attorney and client cannot be said to have ever existed between these parties. No objection other than that stated is urged to the exclusion of the testimony offered, so we will confine our discussion to the single point made.

We may preface our remarks by saying that, irrespective of statute confidential communications made to an attorney, under circumstances such as are disclosed by the record now before us, have ever been regarded a proper subject for protection. "Whatever is communicated professionally by a client to his legal adviser in confidence, and with a view of obtaining professional assistance or legal guidance, is a confidential communication, which is protected by law from disclosure in the trial of a cause." Hageman, Privil. Com. § 1. True, to constitute such confidential communication one which is privileged, the relation of attorney and client must exist; but of such grave importance is it that one seeking professional aid and advice may be at liberty to freely and fully communicate to his legal adviser whatever he may regard as necessary to enable his counselor to serve him advisedly, wisely, and effectually, the law recognizes the justice and wisdom of affording him protection, and declares the relation, under such circumstances, to exist. "A formal retainer is not necessary to constitute a relationship whose communications the law will treat as inviolable. It is enough, to enable the protection of the law to apply, that a legal adviser is sought for the purpose of confidential professional advice, 'with a view either to the prosecution of a claim, or a defense against a claim."' 1 Whart. Ev. § 578. And to the same effect, see Hageman, Privil. Com. § 53. "It is not essential that any fee or compensation be actually paid, or even that there should be a general retainer; and, although the attorney is not actually employed at the time of the conversation, yet, if the same is had in anticipation of employing him, it will come within the letter, the reason, and the spirit of the law." 19 Amer. & Eng. Enc. Law, 131. And "the rule which excludes testimony of professional communications is broad enough to embrace a case where the one seeking counsel pays no fee, and employs other attorneys in the prosecution of the business, and even where the lawyer consulted is afterwards employed on the other side." Weeks, Attys. at Law, (2d Ed.) p. 304, § 143. Thus, in Thorp v. Goewey, 85 Ill. 611, it was held that "facts and circumstances communicated to an attorney or solicitor, when he is called upon and acting as a legal adviser, are privileged," although the negotiations between the parties as to the amount of pay the attorney should receive for his services to prosecute a suit, "resulted in no employment, for want of agreeing upon the fee to be paid." Again, in Orton v. McCord, 33 Wis. 205, a similar ruling was made, where "testimony was excluded on the ground that, being evidence of a communication made by the defendant to Mr. Mariner in his professional capacity, and whilst the defendant was advising and consulting with him as a lawyer engaged in the conduct and management of a litigation in which the defendant was pecuniarily interested, the same was privileged, and therefore inadmissible, the position taken against this ruling [being] that it was not shown that the defendant had formally retained Mr. Mariner, and hence the relation of attorney and client did not exist." The following headnote briefly states the facts upon which this question was presented to the court of appeals of New York for determination: "A practicing attorney also carried on a liquor store. R., one of his clients, called on him there, and, in presence of several others, put a supposed case to him, and asked him, if such a case existed, would there be any liability? The attorney gave his opinion, and asked if the case put was a certain real transaction, and R. said it was. No case was then pending. ...