Higbee v. Dresser , 103 Mass. 523 ( 1870 )

Ames, J.

The case finds that Brant and Peck, who were traders residing in Chicago, sent a letter by mail to the witness Abbott, an attorney at law residing at Lowell, for the purpose of consulting or employing him as such, in the collection of a debt which they alleged to be due to them from the defendant; and that he, in answer to their letter, gave them some advice as to the best mode of proceeding in order to accomplish that object. No other communication appears to have passed between them, and no proceedings were commenced against the defendants for somewhat over a year. To require him to produce the letter, and to testify as to his own reply to it, was apparently in direct violation of the rule that professional communications between attorney and client are so far privileged that the attorney, when called as a witness, shall not be either compelled or permitted to disclose them. The defendants do not in our judgment relieve the case of this difficulty by the suggestion that there was some fraud or collusion between Brant & Company and the plaintiff, to which the attorney was privy, or in relation to which he gave some advice. The nature of this alleged fraud is not indicated with much distinctness in the bill of exceptions. We are unable to see anything in the case, as reported, that has any appearance of fraud or collusion, except possibly some ground to suspect that the plaintiff may be but a nominal party, and that the suit is really prosecuted for the benefit of Brant and Peck. There is, however, nothing in the case to show that the sale of intoxicating liquors is prohibited by the laws of Wisconsin, where the contract was made, or that the contract was illegal under our own statutes, or that any advantage, dishonest or otherwise, could be gained by bringing the suit in the name of Higbee. A mere suggestion of fraud, in general terms, does not furnish sufficient ground for setting aside so well known and salutary a rule as that which protects and privileges the communications of counsel and client. If the case disclosed anything having a tendency to show that the witness was acting for himself as a party to the transaction, or that he was consulted in aid of any intended fraud, or that his advice was asked for any dishonest purpose, the matter would have raised a more serious question. It was to all appearance the ordinary case of information obtained by the witness, in his professional capacity as an attorney, in the ordinary course of business as such. We see nothing, in any of the facts reported, to take the case out of the well known rule. It was a mistake in the trial, therefore, to compel him to testify, and the evidence so obtained was incompetent and inadmissible. 1 Taylor on Evidence, §§ 833 Sf seq.

The two letters from the plaintiff to the same witness do not necessarily fall within the rule referred to, and are not of a specially confidential character. In the first of them he does little more than inquire whether certain earlier letters have been received ; and in the second he simply requests him to deliver the note declared on to another attorney. The error in the other part of the case, however, renders it necessary to sustain the plaintiff’s exceptions. Exceptions sustained.