Snow v. Gould

• Decision Date: 12 March 1883
• Citation: 74 Me. 540
• Parties: CHARLES W. SNOW v. ALBERT P. GOULD and another.
• Court: Maine Supreme Court

74 Me. 540

CHARLES W. SNOW v. ALBERT P. GOULD and another.

Supreme Judicial Court of Maine.

March 12, 1883

ON EXCEPTIONS.

Assumpsit on account annexed for money had and received; viz: $1000 September 23, 1874, at Rockland, and interest, in all $1345.33. The writ was dated June 28, 1880.

Plea the general issue and brief statement that the money was received by defendants from plaintiff in payment and settlement for their services and disbursements in and about plaintiff's business in two divorce suits and matters and services pertaining thereto, covering a long period of time and involving great labor, skill, and responsibility.

The verdict was for the defendants.

Material facts stated in the opinion.

C W. Goddard, for the plaintiff.

In reference to both letter and the admitted testimony of Mr. Gould, it is respectfully insisted that neither the law nor public policy nor the interests of the profession or of justice justify a learned counsellor in a suit touching his own professional services, to instruct or allow his attorney to assail vitally his former client's character and then follow up that accusation by the revelation of a confession made by that client to him under the seal of professional confidence and the protection of privilege.

Much less can he be permitted to evade the wholesome and immemorial safeguard which the law extends to clients by putting in evidence a letter to which his unlawful and excluded testimony has furnished a key which the mere dictum of the presiding judge " excluded" is powerless to banish from their mind.

Plaintiff's counsel has been unable to find a precedent for so dangerous an invasion of privilege. If the law really does warrant the proceedings practiced by the chief defendant in this case, privileged communications are a mockery, for our client's secrets are at our mercy whenever our fees are called in question.

The current of authorities is wholly in one direction.

" Communications made on the faith of that professional confidence which a client reposes in his counsel, attorney or solicitor, are not allowed to be revealed in a court of justice to the prejudice of the client." Phillips on Evidence, vol. 1, c. 7, § 1, and cases cited, (pp. 130-160, 10th Eng. edition; ) McLellan v. Longfellow, 32 Me. 495; Sargent v. Hampden, 38 Me. 584.

To plaintiff's counsel " the agreement" for a divorce appears unlawful, collusive, contrary to public policy and a fraud upon the court. R. S., c. 60, § 8. It was as follows:

" S. J. C. Knox County, December Term, 1873, Charles W. Snow, libellant, v. Olinda A. Snow, Olinda A. Snow, libellant, v. Charles W. Snow.

Decree of divorce to be entered in Charles W. Snow, libellant, v. Olinda A. Snow, and further entry to be made that no right or claim of Olinda A. Snow, either to dower or alimony in the estate of the said libellant shall be in any way changed or prejudiced thereby, and libellant agrees to refer the determination of the amount of such dower and alimony to Judge Barrows, and to pay or set out such alimony and dower as may be awarded by him, after a hearing of all the evidence either party may wish to offer, and decree is to be entered accordingly in the aforesaid actions."

A. P. Gould and J. E. Moore, for the defendants, cited: Hatton v. Robinson, 14 Pick. 416; 1 Whart. Ev. § § 591, 587, 446; Jeanes v. Friedenberg, 3 Pa. Law Jour. 199; Odlin v. Stetson, 17 Me. 244; Eggleston v. Boardman, 37 Mich. 14; Smith v. Lyford, 24 Me. 147; Weston v. Davis, 24 Me. 374; Perry v. Lord, 111 Mass. 504; Pierce v. Parker, 121 Mass. 403; Aldrich v. Brown, 103 Mass. 527; Abbott's Trial Ev. 378; Harland v. Lilienthal, 53 N.Y. 438; McLellan v. Hayford, 72 Me. 410; Stanton v. Embrey, 93 U.S. 548; Vilas v. Downer, 21 Vt. 419.

PETERS J.

The question was whether the defendant had or not overcharged the plaintiff for professional services in a suit for divorce. To show what the plaintiff's instructions were and the services performed, the defendant, against plaintiff's objection, was allowed to read to the jury the following letter written to the defendant by the plaintiff: " As I have not yet heard from you, I presume you have not commenced proceedings, which I wish you to do at your earliest convenience. My object is to give her (his wife) a plenty of time to think over the matter, so that she may consent to a mutual, quiet separation, and the affair may make as little public scandal as possible." The defendant was also allowed, against objection, to testify as follows: " He (plaintiff) instructed me, if I could not avoid a jury trial, to withdraw the libel. This was after I had made known to him the interview I had with counsel on the other side." The objection is that the admitted evidence consisted of professional and confidential communications between client and counsel.

The defendant contends that the rule, invoked by the plaintiff, does not apply where the litigation is not with a stranger, but is between the attorney and client themselves. We do not deem it necessary to decide this latter question, inasmuch as we are of opinion that the evidence was admissible irrespectively of any such distinction.

All that a client says to his attorney is not to be rejected as privileged communication. The privilege does not extend to extraneous or impertinent communications. It does not reach cases where the matter is not of a private nature. Nor where the " attorney was directed to plead the facts to which he is called to testify." And privileged communications may lose their privileged character by the lapse of time. That which may be private at a time may not be private at an after-time. Directions to an attorney to make a certain contract are a confidential communication before, but not after, the contract is made. A solicitor cannot be compelled to disclose the contents of an answer in equity before it is filed, but may be afterwards. There are numerous examples of these principles in the...