Snow v. Gould

Peters, J.

The question was whether the defendant had or not overcharged the plaintiff for professional services in a suit for divorce. To show what the plaintiff’s instructions were and the services performed, the defendant, against plaintiff’s objection, was allowed to read to the jury the following letter written to the defendant by the plaintiff: "As I have not yet heard from you, I presume'you have not commenced proceedings, which I wish you to-do at your earliest convenience. My object is to give her (his wife) a plenty of time to think over the matter, so that she may consent to a mutual, quiet separation, and the affair may make as little public scandal as possible. ” The defendant was also allowed, against objection, to'testify as follows : "He (plaintiff) instructed me, if I could not avoid a jury trial, to withdraw the libel. This was after I had made known to him the interview I had with counsel on the other side. ” The objection is that the admitted evidence consisted of professional and confidential communications between client and counsel.

The defendant contends that the rule, invoked by the plaintiff, does not apply where the litigation is not with a stranger, but is between the attorney and client themselves. We do not deem it necessary to decide this latter question, inasmuch as we are of *543 opinion that the evidence was admissible irrespectively of any such distinction.

All that a client says to his attorney is not to be rejected as privileged communication. The privilege does not extend to extraneous or impertinent communications. It does not reach cases where the matter is not of a private nature. Nor where the "attorney was directed to plead the facts to which he is called to testify. ” And privileged communications may lose their privileged character by the lapse of time. That which may be private at a time may not be private at an after-time. Directions to an attorney to make a certain contract are a confidential communication before, but not after, the contract is made. A solicitor cannot be compelled to disclose the contents of an answer in equity before it is filed, but may be afterwards. There are numerous examples óf these principles in the books. Bouv. Dic. Con. Com.; 3 Green. Ev. § 244; Neal v. Patten, 47 Ga. 73 ; Nave v. Baird, 12 Ind. 318 . See, as bearing significantly upon this case, Rochester City Bank v. Suydam, 5 How. (N. Y.) Prac. 254.

The substance of the evidence objected to would seem to be this : Plaintilf writes to the defendant, instructing him to commence a suit at an early day, so that his wife would have time for reflection and perhaps allow a divorce without a public opposition to it. And the plaintiff orally instructs his counsel to withdraw the libel if a jury trial could not be avoided. It will be seen that this was mostly of the nature of instructions, and instructions that have been executed. No fact in the case is exposed. No secret is let loose. There is nothing in all of it that, at this day, can be prejudicial to the plaintiff. Such a letter might come decorously from any petitioner for divorce. It would not have been an improper paper to exhibit before the court. The oral evidence should be regarded as a private matter before divorce, but has not importance after the divorce. In the case under consideration, it was competent for the defendant to show the nature of his engagement and of the services performed. TTe do not see that the evidence exceeded these bounds. The counsel for the plaintiff complains that the evidence became injurious to his client by an adroit and improper use made of it *544 by the opposite counsel in their address,, to the jury. The remedy for any transgression such as is complained of, should be sought for. at nisiprius and not here.

Plaintiff objects to the admission of a paper, signed by counsel upon both sides of the divorce suits, which stated the terms upon which a divorce might be decreed. The objection is that the paper shows a collusion between the parties to the suits for divorce and that public policy disallows such agreements. While public policy might not permit such an instrument to be used as evidence in the case for divorce, it does not necessarily follow that it would not be receivable in this case. Here it was introduced as a part of the res gestos to prove'the extent and kind of services performed. But it is not a necessary implication of the paper that the parties were conspiring to obtain a divorce. Each party filed a libel. Each party desired a divorce. The question of the most consequence related to allowances and alimony. . By the agreement that question was to be referred to a member of the court. An agreement of divorce is not necessarily collusion or connivance. It depends upon whether it is an attempt to obtain a divorce not justified by the real facts; whether it is intended to practice a fraud upon the court. Mr. Bishop deduces from the authorities this rule upon the subject: "An agreement between the parties, not involving an imposition upon the court or a suppression of facts, to facilitate the proofs and smooth the asperities of the litigation, is, though liable to be looked into by the court, not collusion or otherwise objectionable. It may be meritorious. ” 2 Bish. Mar. and Div. (6th ed.) § 28. Our own court has said as much. Burnett v. Paine, 62 Maine, 122; Badger v. Hatch, 71 Maine, 562.

In making up the bill of exceptions a difference arose between counsel as to the form of a question to a witness. The judge, having not a personal recollection, allowed it to be transcribed as found in the court reporter’s short hand notes. No objection can lie to that. The answer was in part objectionable, but was not objected to.

Exceptions overruled.

Appleton, C. J., Barrows, Danforth, Virgin and Sxjnionds, JJ., concurred.