Entered, according to act of Congress, in the year eighteen hundred and seventy-two, BY WEED, PARSONS AND COMPANY, In the office of the Librarian of Congress, at Washington. APR 2 0 1966 THE ALBANY LAW JOURNAL: A WEEKLY RECORD OF THE LAW AND THE LAWYERS. The Albany Law Journal. ALBANY, JANUARY 6, 1872. CONFIDENTIAL COMMUNICATIONS BETWEEN CLIENT AND ATTORNEY. It is a well-settled rule of law that communications made by a client to his legal adviser are so far protected that the latter cannot be compelled to disclose them upon the witness stand. A bystander in open court, who sees lawyers (where they appear, it is said, to the worst advantage), as witnesses, and finds that the court sustaining them when they refuse to divulge what has been told them by their clients, is apt to conclude that this is a peculiar privilege which the legal profession have somehow secured to themselves, and for which they would be at a loss to produce any better reason than that they are to be considered as privileged characters, generally, in the court room. A little reflection, however, plainly shows it to be the privilege of the client, not of the attorney. It is requisite for the convenient and speedy administration of justice, that a class of men should be educated and skilled in the law. Indeed, justice could hardly perform her functions at all, without the profession. The law encourages suitors to confide in a legal adviser, instead of attempting to manage their own cases. Litigation is diminished when parties are disposed to ascertain the actual state and meaning of the law, and their rights under it, from those whose lives have been devoted to its study. The protection afforded to the communications of clients against any subsequent disclosure is one of the chief means by which this desirable law is attained. The courts forego the rather questionable advantage of prying into secrets of this nature, preferring to secure to every man the means of acquiring a correct knowledge of the law, and of having his case faithfully and understandingly presented in a court of justice. changes. Great and excellent reforms have unquestionably been effected in the law of evidence, but some reformers are not content unless still greater modifications are carried out. The fountain head of modern legal reform, in the domain of evidence at least, is Jeremy Bentham; one of his devoted followers is Chief Justice Appleton, of Maine, whose able and trenchant work upon evidence is familiar to all American lawyers. Judge Appleton has devoted a chapter to the subject of the privileged communications of clients, and argues with great vigor in favor of abolishing the rule. Appleton on Evidence, pp. 156-172, chap. x. He says: "The attorney, who is sworn to do no falsehood, and to disclose to the court any such that he may know to be intended, is the only citizen into whose not reluctant ears all fraud and crime may be poured with. impunity." If the confidential communication of a client be true, he contends no client need fear a disclosure; if not true, such disclosure is demanded by justice. The privilege is condemned as "fostering a spirit of unscrupulous and reckless litigation, encouraging the commission, and facilitating the escape of crime, making the bar the recipient of dishonest secrets, and shielding attorneys who are accomplices from public reprobation." We do not believe that the practical evils of the rule are so serious, or that its abolition would insure results so salutary as this accomplished and earnest writer has conceived. The standard of professional honor can hardly be so low as his argument assumes; if, indeed, human nature itself be quite so bad. On the contrary, the very sanctity of the relation between a lawyer and his client is chiefly instrumental in preserving that honor in its purity. His assumption is, that lawyers, for the sake of litigation, encourage, as well as connive at, the concealment of falsehood and of crime. Is the assumption just toward the great body of the profession of which the gentleman himself is so distinguished an ornament? All this, it may be urged, is elementary. So it is; But grant it to be true. May it not be justly but we have said it to introduce a few suggestions, feared, then, that a like prostitution of talent would evoked by a disposition of late years, in legal reforms, attend a change in the law? Would not the same to stop short of nothing less than the most sweeping | inordinate love of law suits, for the sake of the emoluments, encourage this unscrupulous class of persons (these "sowers of suits which make the court swell and the country pine," as Bacon has it), to pervert their testimony if called to the stand, especially where the hazard of contradiction and exposure is so extremely slight, as it must from necessity be in almost every instance. Such testimony, at best, would be obnoxious to the objections that bar out hearsay; the unsworn statements of another with the addition of a strong partizan coloring. It would not only be to a large extent in the power of the attorney to fashion the testimony as it pleased him, but would grant him license to argue his client's cause under cover of giving testimony. Who could draw the line effectively between the witness and the advocate "Quo teno vultus mutantem Protea nodo?" The reason, approved by experience, upon which this rule was founded has not yet, in our judgment, been overthrown. The attorney must know the whole of his client's case. He must become that client's alter ego. The more nearly he succeeds in possessing himself of the secrets of his client's mind, motives and thoughts, the better he can do justice not only to the client himself, but to the court and the community at large. Even as the law now stands, one of the most serious obstacles with which a lawyer is forced to contend is a proneness in clients to withhold a portion of the facts in their cases. They either do not make any effort to remember them, or else estimate them of little importance. Sometimes they will omit statements most essential to a proper and successful management of the suit. A defect, which depends, of course, upon the mental training of the client, it is a defect of recognized frequency. This proposed change would magnify the difficulty. Clients would be found still less inclined to impart the whole truth, when they were aware that what they may communicate is not secure against disclosure. This is not because they keep to themselves a falsehood, but, because so delicate and sensitive are most natures, that they shrink from unbosoming their wishes and feelings, except under the seal of strict confidence and secrecy. The roughest class of men are not rough, or without sensibility, in their confidence. It is argued that communications made to physicians and clergymen are required to be disclosed in court. It is true. Such communications, we admit, are fully as delicate and confidential in their nature as any business that is likely to come within the keeping of a lawyer's professional trust. BEST, C. J., said, that he for one would never compel a clergyman to disclose communications made to him by a prisoner; but that, if he chose to disclose them, he would receive them in evidence. In some of the States the privilege has been extended, by statute, to both these professions. We are in favor of placing the three professions upon the same footing. Still, in behalf of the attorney a superior claim may be urged, since much less frequent are the occasions where physicians or clergymen are called upon to make disclosures. So rare is the contingency that, it is safe to say, it has no place in the thoughts of the individual seeking to impart his information. The rule, practically, does not hamper and restrict the confidential relation of the parties. But when a client approaches counsel for legal advice, almost his first mental inquiry is, "In the event of this subject coming into court, how much of what I am about to say will be brought out?" Suppose at the very threshold of the interview he sees the danger staring him in the face, of a possible exposure to his opponent, eager to take advantage of it. It is a sorry reflection, and but little consolation, to know that such opponent, in turn, is involved in the same misfortune. It were ungracious to suggest a fear, on the part of the client, lest his pretended professional friend might prove one of Mr. Appleton's legal accomplices of crime and falsehood," who would not hesitate to decoy an unfortunate victim into unfolding his case, in order to betray him afterward upon the witness stand. Such a fear is no more groundless than the accusation which Mr. A.'s zeal has led him to bring against an honorable profession. If the client's communication be simply a confession of falsehood and crime, the duty of his legal adviser is prescribed by his own conscience. It is a vexed question whether, if a criminal confess his guilt; or, if without confession, you are forced into a belief that he is guilty, you have a right to use your ability and learning in his defense. This every lawyer must de cide for himself. The noble conduct of Charles Phil lips readily occurs to many practitioners, when this trying doubt arises. The advocate must decide for himself. But suppose you are impressed with a conviction that you have no right to defend him, then let it be understood that a party accused of crime, when he talks with counsel, is doing no more nor less than making a confession, which may be used (and with terrible effect, too) against him, and almost the last chance of a plea of guilty will have vanishsd. Certainly, almost never will counsel be put in possession of the whole truth, so he can advise such a plea. The accused will either lie to his lawyer, or, what amounts to nearly the same thing, withhold the most essential part of the truth. A tricky and disreputable lawyer (and it must be conceded that the bar is not wholly rid of its rascals), if he detects the slightest need of it, will anticipate his client by cautioning him not to commit himself. But if, on the other hand, you believe that the prisoner has a right to be tried in due form of law, by a jury, and can be convicted only upon the weight of competent evidence; and you discover that you can conscientiously defend him upon the ground of an insufficiency of evidence, you will also conclude that you have no right to injure his chances of an acquittal, by making public any statements he may have made to you in your professional capacity. A contrary practice would virtually annul that humane maxim of the common law, that "no man is bound to criminate himself." If it be a civil suit, and a free and unreserved conversation with your client convinces you he is wrong, as an honorable lawyer you will advise a speedy settlement. Many a disputed claim is thus satisfied out of court, where so fortunate a conclusion never could have been reached, had not clients full confidence that a minute and detailed communication would not prejudice their position, but that they had every thing to gain from it. We have not, to be sure, detected any present likelihood that the privilege will be abolished, and yet the proposition is not without its vigilant and untiring advocates. Should future legislators see fit to divorce from these communications rights so long considered sacred and inviolable, may not the result be traced in cases coming before the court ill arranged, and but partly understood in sudden surprises sprung upon parties which they could not have obviated; in the multiplication of delays and obstructions; and in the engendering of mistrust and ill feeling between clients and their professional advisers, most detrimental to public peace and concord; and a most alarming hinderance to the impartial administration of justice? past, the principles of bankruptcy legislation have been universally agreed upon, both in the United States and in England. Mercantile men consider that, where a trader has met with unforeseen losses as, for instance, in the case of the Chicago fire, he should not be weighed down during his life by liability for his previous debts. Even where the calamity is not so entirely of the nature of an accident as in the case of the Chicago disaster, yet, traders, who can sympathize with trading ills and infirmities, believe that a speculator should get a bankruptcy discharge and release from debts, provided his losses do not indicate gross negligence or fraud. A practical test, accordingly, of sound and unsound trading was intended to be furnished by the bankruptcy act of 1867. By that statute a ruined trader is not, in most cases, aided in bankruptcy unless his assets realize 50 per cent of his liabilities. Hard cases make bad laws. This is a very old but very solid saying. The statute referred to, for instance, will operate most severely in the case of the Chicago merchants. Indeed, this effect of the present law of bankruptcy is so obvious that congress is certain to adopt some of the devices now mooted at Washington and elsewhere for the relief of the ruined traders of Chicago. The best way, perhaps, to act under the circumstances, is to pass a special statute for the Chicagoese and to enact, also, a general statute which will not have quite such a hard and fast outline as the statute of 1867. The most unpleasant part of bankruptcy, however, is the tediousness and expense of administering the assets. In England the cost has usually been 33 per cent on the total realized. In that country the battle between creditors and official assignees was fought out to the bitter end, until by the last bankruptcy statute the creditors' assignee triumphed. The first system adopted in that country was to administer the assets through the creditors. This was found to result in every fraudulent trader manufacturing a number of nominal creditors, who outvoted the bona The rule of law is, we are fully persuaded, a salutary one which views an attorney, while upon the witness stand, as the personification (for some purposes) of his client. The latter is not bound out of his own mouth to convict himself. The former, even if he treacherously should attempt it, is not permitted to betray one who has confided unsuspectedly in him, and who has, to some extent, from the necessity of the case, been obliged to select him as a confidant. It is the merest evasion to pretend that divulging the truth is no betrayal. Press such a doctrine further and it sanctions torture as a means of eliciting "the truth" from the lips of the accused himself. If ever one may bring forward the hackneyed caution, stafide creditors on every material point. This family super vias antiquas, without incurring the charge of timid conservatism, surely here is his opportunity. BANKRUPTCY LAW AND ADMINISTRATION. Bankruptcy is intended to do two things, to release the bankrupt from liability to arrest for his past debts, and to secure an equitable division of his assets among his creditors. The abolition of the law of arrest for debt, therefore, would not render a bankruptcy code unnecessary. A hasty or friendly creditor might still, by a timely execution, carry away all the assets for himself. Consequently, it seems impossible to get rid of a bankruptcy code as distinguished from the ordinary law of debtor and creditor, unless the legislature is firmly resolved to extinguish credit on its present scale. Accordingly, for a long time council was knocked on the head by Lord Brougham in 1831. The bankruptcy act of that year, passed through his instrumentality, introduced the official assignee to the trading public. That personage, however, far surpassed the worst records of the corruption of the creditors' assignee. A compromise was adopted, and both creditors and official assignees were appointed to work together in harmony. The official assignee took possession of the assets, and even when a creditor's assignee was appointed, the official still collected all debts under £10. This dualism only made confusion worse confounded. Each of the two assignees could not have the bankrupt's books in his office, while the double range of expenses left the creditors so despondent that many often wholly ceased to look after the bankrupt's estate, once that it was reposing in gremio legis. |