Patten v. Moor

In the case of Brown v. Payson, it was decided that an attorney cannot be called to testify as to the situation of an instrument placed in his hands, by his client, though he may be required to disclose the name of his client. And the learned judge who delivered the opinion of the court, after a careful examination of the cases, expresses the opinion, in substance, that if any deed or writing is intrusted by a client to his attorney, in the course of any professional employment,- the attorney cannot be required *167nor, of course, permitted to produce the papers, nor to give parol evidence of their contents, nor to testify anything in regard to their state or situation, where his only knowledge in regard to them has been derived from the papers themselves, while in his possession by such delivery of his client, without the consent of the client himself. If he has any knowledge of the contents or situation of such papers, which he has not derived from the communication of his client, or from the papers themselves, while intrusted to him professionally by his client, he may be required to state it, like any other witness. And we think this view of the law, deduced from the opinion in Brown v. Payson, is sustained by the authorities there collected, as well as by the general principle on which all these cases are founded.

The present case raises a further question as to the extent to which the protection afforded by the law to attorneys and counsel, against being compelled to state the secrets of their employers, is to be carried. It is contended, on the part of the plaintiffs, that the attorney who, by reason of his employment as such, is present when some act is done material to the interests of his employer, is not to be required to give evidence in regard to it. From the interrogatories and answers, it may be inferred that the defendant contends that the mortgage, which is the subject of the inquiry, was not completed by the signatures and jurat of the affidavit required by the statute, until long after the date, and that its effect may to some extent depend on that circumstance; and that these signatures were affixed to the affidavit in the office and in the presence of the counsel. Under such circumstances is the counsel bound to state the facts thus occurring under his personal observation, but of which he would not, perhaps, had have any knowledge, but for the relation in which he stood to his client. On this question we have examined the e^rly authorities within our reach, which are collected and reviewed by Bronson, J., in a very able and learned opinion, in the case of Coveney v. *168Tannahill, 1 Hill 33, where it was held that if an attorney was present at any transaction, in the way of business, between his client and a third person, he is not privileged as to what then took place. But the reasoning of the court goes much further; that if an attorney is present at any transaction material to a case between any parties whatever, he is bound to testify what occurred,- on the ground that his knowledge is not derived from any communication from his client, but from his own observation. If, during such transaction, any communication is made to him by'his client, he cannot disclose that, but this does not extend to statements made to others by the attorney, in the client’s presence.

This decision is sustained by the opinion of Walworth, Ch., in the case of Crosby v. Burger, 11 Paige 378, where he says, “ The appellant is under a mistake in supposing that an attorney or counselor is privileged from answering as to every thing which comes to his knowledge while he is acting as attorney or counsel. The privilege only extends to information derived from his client, as such, either by oral communications or from books or papers shown to him by his client, or placed in his hands, in his character of attorney or counsel. Information derived from other persons or from other sources, although such information is derived or obtained while acting as attorney or counsel, is not privileged. The object of the rule protecting privileged communications from being disclosed by the attorney or counsel, is to secure to parties who have confided the facts of their cases to their professional advisers, as such, the benefit of secrecy as to such communications. But the principle of the rule does not apply to the discovery of facts within the knowledge of the attorney or counsel, which were not communicated or confided to him by his client, although he became acquainted with them while engaged in his professional duty as the attorney or counsel of his client. And the same point is supported by the decision of the same learned judge, in Bank of Utica v. Mersereau, 3 Barb. Ch. *169Rep. 528, where it is held that an attorney, who is professionally employed to prepare a deed for his client, and who afterwards witnesses its execution, may be compelled not only to prove the execution of such deed, but also to testify whether it was antedated, whether it was in the same form in which it now appears, at the time of its execution, or has been altered, or whether it was actually delivered at the time he subscribed his name thereto as a witness. We do not understand that the duty of the attorney, in such a case, depends in the slightest degree upon the fact of his being employed to draw the deed, or upon his being an attesting witness; but upon the fact that he does not derive his knowledge from any communication of his client.

So far, then, as this objection is concerned, we think the witness was bound to answer. See 1 Greenl. Ev. § 245; Dan. Ch. Pr. 643; Story’s Eq. PI. §§ 601, 602, and cases cited by the defendants.

But he further objects that neither he nor his client had any notice that he would be used as a witness, and that his client had not had such notice as to enable him to employ other counsel. This objection, we suppose, rests on the general rules of practice of the court, Nos. 33 and 34, as we are aware of no common law principle applicable to the point. The first of these applies only to the conduct of causes before juries. The other evidently relates to testimony upon the stand, and not to depositions like this, in cases in chancery. Neither furnishes any reason for declining to answer the interrogatories.

The objections of the witnesses are in the nature of a demurrer to interrogatories, (Dan. Ch. Pr. 1023-1031,) and must be overruled; and the order will be that the witness go before the commissioner and answer, or, &c.