never privileged.25 And information disclosed in friendly confidence to a non-professional person, even though under a pledge of secrecy, is not privilege.2

26

If there is any doubt whether the communication is intended to be privileged or not, the accused in a criminal trial should have the benefit of the doubt.27

§ 174. Character and date of the communications.-The presence of certain elements is indispensable to all classes of privileged communications. In the first place the communication must have been made, the advice given or the information divulged while the confidential relation existed. Anything said afterwards is not within the rule.28 The accused must show that the relation of attorney and client existed in any case where he claims that evidence is admissible because the witness who is called on to disclose it was his attorney. He must show that the witness had agreed to be his attorney and that he had agreed to have him as such. So that where a lawyer and friend of the accused, without express employment or promise or hope of compensation, was asked by the accused while in the jail visiting another client to

25 State v. Charity, 2 Dev. (N. Car.) 543, 545, 549; Sample v. Frost, 10 Iowa 266, Gartside v. Outram, 26 L. J. Ch. 113.

26 McManus v. Freeman, 2 Pa. Dist. 144; Cady v. Walker, 62 Mich. 157, 158, 28 N. W. 805, 4 Am. 834; Wilson v. Rastall, 4 T. R. 753.

27

286.

20, 21, 28 S. W. 160, 162; Hernandez v. State, 18 Tex. App. 134, 51 Am. 295; State v. Cummings, 189 Mo. 626, 88 S. W. 706. Under a statute exempting "confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge

People v. Atkinson, 40 Cal. 284, the functions of his office," it has been

28 People v. Hess, 8 App. Div. (N. Y.) 143, 40 N. Y. S. 486, aff'g 6 Misc. (N. Y.) 246, 56 N. Y. St. 267, 26 N. Y. S. 630 (construing New York statute which requires the communication to have been made in the course of professional employment); Long v. State, 86 Ala. 36, 5 So. 443; Reg. v. Hayward, 2 C. & K. 234, 236; Reg. v. Farley, 2 C. & K. 313, 315; Basye v. State, 45 Neb. 261, 63 N. W. 811; State v. Hedgepeth, 125 Mo. 14,

held that the relation of attorney and client need not exist, but that communications made to the prosecuting attorney by a witness for the state are within the statute. State v. Houseworth, 91 Iowa 740, 60 N. W. 221, the court saying that under the statute it makes no difference from whom the communication comes. State V. Hedgepeth, 125 Mo. 14, 21, 28 S. W. 160. See, also, State v. Smith, 138 N. Car. 700, 703, 50 S. E. 859; State v. Stafford (Iowa, 1909), 123 N. W.

convey a message to the chief of police to the effect that the accused would plead guilty if he were let off with light punishment, the communication is not privileged and may be proved by the attorney.20 So the communications must have been made by or to the attorney, physician or priest while he was acting professionally. Information, such as belongs to ordinary intercourse, is not privileged. The communication must relate to the attorney's professional duty, though it is never necessary that it should be expressly stated to him by the client that it is confidential,30 for this fact is always inferred and presumed until the contrary is shown whenever the relation of attorney and client is proved to exist.

31

36

The attorney has been permitted in civil cases to identify his client, to disclose the name of a person who retained him,32 to prove his client's handwriting,33 or address, the date when he received a certain instrument,35 the fact that he drew a deed for his client, or paid money to him,37 or to a third person on his client's account. So an attorney may be compelled to answer a question designed solely to ascertain whether he had ever been consulted in his professional capacity by the accused, 38 or whether he had acted for him without authority.39

And generally when an attorney, though acting as such, obtains knowledge of any fact, not by means of his professional character but by his powers of observation as a man, i. e., by the

State v. Hedgepeth, 125 Mo. 14, Mass. 521, 524; State v. Houston, 3 21, 28 S. W. 160. Harr. (Del.), 15; Martin v. Anderson, 21 Ga. 301, 309.

Wheeler v. Hill, 16 Me. 329. A letter written by an attorney to his client informing him of the terms of an injunction is not a privileged communication because it is in no sense confidential. Aaron v. United States, 155 Fed. 833, 84 C. C. A. 67.

same means any one in a like situation would employ, the information is not privileged.*

It is never essential to create the privilege that any proceedings, criminal or civil, should be pending or even in contemplation. That the relation of attorney and client exists is enough; for, whatever the transaction (unless some future infraction of the criminal law is contemplated), and whether or not it is likely to be subsequently litigated, the communication or advice is privileged. In conclusion, it may be noted as not within the rule, that an attorney may testify that a person alleged to be his client had made no communication to him or received no advice;+2 and he may repeat a statement made to him (though made while he was acting professionally) by a third person, to whom he was referred by his client, or communications by the client which he meant should be imparted to others by the attorney, or a conversation between two persons which took place in his presence, though both were his clients.45

43

44

§ 175. Communications made in contemplation of crime.-Communications made by a client who contemplates the future commission of a felony, or advice given by an attorney to enable his client to escape the consequences of a future infraction of the

State v. Fitzgerald, 68 Vt. 125, 34 Atl. 429; Milan v. State, 24 Ark. 346, 355; Swaim v. Humphreys, 42 Ill. App. 370; State v. Merchant (N. H.), 18 Atl. 654; Theisen v. Dayton, 82 Iowa 74, 47 N. W. 891. So an attorney may testify from his knowledge of his client's handwriting that an instrument was written by him if nis knowledge was gained by handling documents written by his client. Johnson v. Daverne, 19 Johns. (N. Y.) 134; Coates v. Birch, 2 Q. B. 252, I G. & D. 647, 11 L. J. Q. B. 1, 5 Jur. 1009; Chant v. Browne, 12 Eng. L. & E. 299. See civil cases, Underhill on Ev., $ 170.

"Arnold v. Chesebrough, 41 Fed. 74; Snow v. Gould, 74 Me. 540, 542,

543, 43 Am. 604; In re Whitlock, 51 Hun (N. Y.) 351, 353-355, 3 N. Y. S. 855, rev'g 2 N. Y. S. 683; Bingham v. Walk, 128 Ind. 164, 172, 27 N. E. 483; Mutual Life Ins. Co. v. Selby, 72 Fed. 980, 19 C. C. A. 331.

42 Daniel v. Daniel, 39 Pa. St. 191.

43

Mellen, In re, 63 Hun (N. Y.) 632, 18 N. Y. S. 515.

"White v. State, 86 Ala. 69, 5 So. 674; Roper v. State, 58 N. J. L. 420, 33 Atl. 969; Ferguson v. McBean, 91 Cal. 63, 27 Pac. 518, 14 L. R. A. 65; Hughes v. Boone, 102 N. Car. 137. 159, 160, 9 S. E. 286; Cady v. Walker, 62 Mich. 157, 158, 28 N. W. 805, 4 Am. St. 834.

46

criminal law, are not privileged. An accused person may claim privilege for any information communicated by him to an attorney or physician after the date of the crime with which he is charged." He cannot claim to have the mouth of an attorney closed with whom he consults to ascertain how he may commit a crime and escape the detection and punishment.

It is no part of the duty of an attorney to counsel as to the best methods of violating the law.48

The cases make a distinction between a confidential communication which states the intention to do a treasonable or felonious. act, which both client and attorney know to be such, with a request for advice to enable the client to execute the act in such a way as to escape punishment; and the communication of an intention to commit an act which, under certain circumstances and with a particular intention, may become criminal accompanied by a request for advice as to how far the client may go without exceeding the limits beyond which the act would become criminal. In the first case, where the act is palpably and clearly criminal, a communication which seeks to be advised in order that criminal consequences may be avoided is not privileged. Thus, where a victim of a homicide had advised with an attorney how he might kill the accused and escape the consequences of his crime, it was held that the communication was not privileged and might be proved by the attorney."

So, also where two persons accused of crime had consulted an attorney upon the best method by which they might fraudulently conceal their property as against a judgment creditor and the attorney had advised them against doing so, the attorney was

*The lawfulness of the purpose of the communication will, in the absence of contrary proof, be presumed. If the client's purpose be to commit a felony or to do any act which is malum in se, the privilege is at once destroyed. Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 528; People v. Blakeley, 4 Park Cr. (N. Y.) 176, 181. It is otherwise if the intent is doubtful, and if the act contemplated might be lawful, e. g., producing a miscarriage or abortion on a

permitted to reveal on the witness stand what had been said to him.50

In another case it was held that an attorney who had been consulted as to the possibility of forging a deed might testify on the trial of his client for the forgery to what had been said to him indicating an intention to forge.51

There are many other cases to the same effect, for the rule is that the prostitution of the honorable relation of attorney and client will not be permitted under the guise of privilege, and every communication made to an attorney by a client for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice.52

In accordance with this rule, where a forged will or other instrument has come into the possession of an attorney through the instrumentality of the accused, with the hope or expectation that the attorney would take some action in reference thereto. and the attorney does act, in ignorance of the true character of the instrument, there is no privilege, in as much as full confidence has been withheld. The attorney is then compellable to produce the forged writing against his client.5

50

Reg. v. Cox, L. R. 14 Q. B. Div. 153, 168, which is a very well considered case in which all the prior cases are cited and commented on. See also, Cromack v. Heathcote, 4 Moore 357, 2 Br. & B. 4 (1820), 22 R. R. 638; Gartside v. Outram, 26 L. J. Ch. 113; Annesley v. Anglesea, 17 How. St. Tr. 1139 (1743); Rex v. Dixon (1765), 3 Burr. 1687.

52

Orman v. State, 22 Tex. App. 604, 617, 3 S. W. 468, 58 Am. 662; Greenough v. Gaskell, 1 M. & K. 98, 104; People v. Blakeley, 4 Park. Cr. (N. Y.) 176, 181; Coveney v. Tannahill, I Hill. (N. Y.) 33, 36; People v. Mahon, I Utah 205: Russell v. Jackson, 9 Hare 387, 68 Eng. Ch. Rep. 558.

53

53 Reg. v. Hayward, 2 C. & K. 234; Reg. v. Tylney, 1 Den. C. C. 319, 3 Cox C. C. 160, 18 L. J. M. C. 36, 37, 38. "If any man should confide to a professional person that he had a treasonable or felonious intention and wished to know how he might execute it so as to escape punishment, it would be too much to say that such communication which might make the man consulted guilty of misprision, was privileged, but if a man meditates an act which, exceeding certain limits, would become criminal, and confined within certain bounds would be perfectly justifiable, the person asking the advice must be considered as seeking how he may avoid and not how he may commit a crime, and it is impossible that an attorney should