Jones v. . Marble Co. ( 1904 )

The plaintiffs, partners in the practice of the law, brought this action to recover of the defendant certain fees for professional services rendered. The defendant denied that it owed the plaintiffs anything for professional services, averring that it had paid to the plaintiffs a reasonable compensation for the same. The only exception in the appeal arises on a matter of evidence. One of the plaintiffs in his own behalf testified as to the value of his services and his contract of employment. The defendant introduced as a witness an attorney who was associated with the plaintiffs as one of the defendant's attorneys in the suit in which the plaintiffs alleged that they earned the fees which are the subject of this action, for the purpose of showing that the fees and charges claimed by the plaintiffs were excessive and exorbitant. His testimony as to the amount involved tended to show that the fees were excessive. On his cross-examination, the plaintiffs, to show that the witness had on a former occasion expressed himself otherwise than he testified as to the amount involved in the suit in which the plaintiff's fees were alleged to have been earned, showed him a carbon copy of a letter which the witness had written and sent to the president of the defendant company on that subject, and which copy the witness had sent to the plaintiffs. The witness identified it, and, over the objection and exception of the defendant, his Honor admitted it. The witness for himself was willing to waive any privilege he might be thought to have, but disclaimed any right to represent the defendant. The objection was that it was a confidential communication between attorneys and client, and could not be received as evidence over the objection of the client (the defendant). The letter upon its face shows that the matter was of a confidential nature between lawyer and client. It contained matters directly connected with the important (239) features of the litigation, bearing on the amount that might be recovered against the defendant, and which, if they had been known to the opposing side, might have been harmful. The matters being confidential at the time the letter was written, they remained so perpetually unless they should be afterwards waived by the client. It makes no difference that the carbon copy of the letter was sent to the plaintiffs by the witness. It was just as much a confidential communication as if it had been sent by the client to the plaintiffs. All communications, whether by conversation or in writing, between the attorneys for a party concerning the subject-matter of the litigation are privileged. 23 A. E., 57, and authorities there cited.

The question then arises, Did the defendant by introducing the witness to prove that the charges of the plaintiffs were excessive waive the privlege [privilege] of secrecy and confidence? We think it did. The purpose and object of the defendant, as we have said, was to show that the plaintiff's charges were exorbitant, and the chief method of doing that was in examining the witness as to the amount involved in the litigation. The witness, in his examination in chief, gave testimony on that head, the effect of which upon the jury was calculated to damage the plaintiff's case. The views of the witness on that matter in the written communication to his client, the plaintiffs contended, were favorable to them and different from his opinion expressed on the witness stand. Certainly, the defendant could not get the benefit of the witness's testimony to disparage the plaintiffs' claim, and then exclude the plaintiffs from the benefit of an opinion of the witness expressed at another time, and which the plaintiffs claim was favorable to them. The opening up of the question of the excessive amount of the plaintiffs' services through the method of showing the small amount involved was a waiver by the defendant of the seal of confidence which the law (240) imposed upon the communication between the witness and the defendant on that question.

No error.

DOUGLAS, J., concurs in result.

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