CONFIDENTIAL COMMUNICATIONS, evidence. Whatever is communicated professedly
by a client to his counsel, solicitor, or attorney, is considered as a
confidential communication.
2. This the latter is not permitted to divulge, for this is the
privilege of the client and not of the attorney.
3. The. rule is, in general, strictly confined to counsel, solicitors
or attorneys, except, indeed, the case of an interpreter between the counsel
and client, when the privilege rests upon the same grounds of necessity. 3
Wend. R. 339. In New York, contrary to this general rule, tinder the statute
of that state, it has been decided that information disclosed to a physician
while attending upon the defendant in his professional character, which
information was necessary to enable the witness to prescribe for his
patient, was a confidential communication which the witness need not have
testified. about; and in a case where such evidence had been received by the
master, it was rejected. 4 Paige, R. 460.
4. As to the matter communicated, it extends to all cases where the
party applies for professional assistance. 6 Mad. R. 47; 14 Pick., R. 416.
But the privilege does not extend to extraneous or impertinent
communications; 3 John. Cas. 198; nor to information imparted to a
counsellor in the character of a friend, and not as counsel. 1 Caines' R.
157.
5. The cases in which communications to counsel have been holden not to
be privileged may be classed under the following heads: 1. When the
communication was made before the attorney was employed as such; 1 Vent.
197; 2 Atk. 524; 2. after the attorney's employment has ceased 4 T. R. 431;
3. when the attorney was consulted because he was an attorney, yet he
refused to act as such, and was therefore only applied to as a friend; 4 T.
R. 753; 4. where a fact merely took place in the presence of the attorney,
Cowp. 846; 2 Ves. 189; 2 Curt. Eccl. R. 866; but see Str. 1122; 5. when the
matter communicated was not in its nature private, and could in no sense be
termed the subject of a confidential communication; 7 East,, R. 357; 2 B. &
B. 176; 3 John' Cas. 198; 6. when the things disclosed had no reference to
professional employment, though disclosed while the relation of attorney and
client subsisted; Peake's R. 77; 7. when the attorney made himself a
subscribing witness; 10 Mod. 40 2 Curt. Eccl. R. 866; 3 Burr. 1687
8. when he was directed to plead the facts to which he is called to
testify. 7 N. S. 179. See a well written article! on this subject in the
American Jurist, vol. xvii. p. 304. Vide, generally, Stark. Ev. h.t.; 1
Greenl. Ev. Sec. 236-247; 1 Peters' R. 356; 1 Root, 383; Whart. Dig. 275;
Caryls' R. 88, 126, 143; Toth. R. 177; Peake's Cas. 77 2 Stark. Cas. 274; 4
Wash. C. C. R. 718; 11 Wheat. 280; 3 Yeates, R. 4; 4 Munf. R. 273 1 Porter,
R. 433; Wright, R. 136; 13 John. R. 492. As to a confession made to a
catholic priest, see 2 N. Y. City Hall Rec. 77. Vide 2 Ch. Pr. 18-21;
Confessor.