Blount v. Kimpton
29 N.E. 590
Mass.
1892
Check Treatment
Morton, J.

The defendants do not question the well settled rule that confidential communications made by a client to an attorney for the purpose of obtaining his advice and assistance in reference to the matter which is the subject of them cannot be disclosed by the attorney without the consent of the client. Foster v. Hall, 12 Pick. 89. They contend that, if they are made in the presence and hearing of a third person, that removes the privilege, and makes the testimony of the attorney concerning them admissible. But as between the client and attorney they are still confidential, though made in the presence or hearing of a third party. The only effect of that is that they are less confidential in fact, and that such third party may testify to them. It does not qualify the attorney as a witness. Hoy v. Morris, 13 Gray, 519.

The defendants also urge that the privilege has been waived by the plaintiff, for the reason, as they contend, that in the lower court the plaintiff called the attorney as a witness, and interrogated him as to the conversation between the attorney and himself, when the former was acting as counsel for him, in reference to the transaction now in suit. It is possible that the fact may have been as the defendants assert. It is possible also that the attorney may not have testified or not have been interrogated by the plaintiff as to the conversations. The fact that he testified to other things would constitute no waiver of the privilege as to the conversations. Montgomery v. Pickering, 116 Mass. 227. The exceptions do not state that he testified to the conversations, but to the “ above mentioned transactions.” That may mean, and naturally would mean, that he testified to what was done, not to what was said. We cannot assume, in favor of the defendants, who are the excepting party and have the burden, that the fact was as they contend. It is unnecessary to consider, therefore, whether the privilege was or was not waived.

Exceptions overruled.