Summary
In Foley, a private detective, who had been hired by the defendant “to keep her husband... under surveillance,” was present at the defendant's conference with an attorney.
Summary of this case from Richards v. KallishOpinion
No. 28078
Decided February 5, 1941.
Evidence — Privileged communications — Attorney and client — Section 11494, General Code — Confidential communications not voluntarily testified to by former client — Privilege not waived where third person present an agent.
APPEAL from the Court of Appeals of Cuyahoga county.
This action was commenced in the Municipal Court of the city of Cleveland by John Foley, who may be designated as a private detective, against Elma H. Poschke, to recover the sum of $3,430, with interest, representing the amount claimed to be due for personal services rendered and necessary expenses incurred between May 28 and November 19, 1937, inclusive, on the defendant's behalf and at her instance.
Plaintiff alleged in his petition that the defendant had employed him at $25 per day to keep her husband, Adam Poschke, under surveillance.
It was found by the trial court that plaintiff's services had been contracted for at the rate of $25 per day, and that he had performed work entitling him to recover $2,605. Judgment was rendered in his favor for that amount.
One of the several attorneys retained by the defendant during the course of domestic difficulties was George W. Spooner of Cleveland. Plaintiff called him as a witness and he was permitted to testify, over objection, as to certain matters communicated to him by Mrs. Poschke, and which he learned while the relationship of attorney and client existed between them.
The trial court expressly found "that the testimony of George Spooner was not privileged because, although George Spooner was a former counsel for the defendant and the facts testified to were learned while counsel for the defendant, said privilege was waived because of the presence of a third party, namely the plaintiff."
An appeal from the money judgment against her was taken by the defendant to the Court of Appeals, where the judgment of the Municipal Court was reversed and the cause remanded, solely "for error of law in admitting testimony of privileged communications by former attorney, the privilege not having been waived."
The case is in this court for review pursuant to the granting of a motion to certify.
Mr. J. Harold Read, for appellant.
Mr. Raymond E. Cookston, Mr. Clemens R. Frank and Mr. Oren Fish, Jr., for appellee.
Section 11494, General Code, says explicitly that an attorney shall not testify concerning a communication made to him by his client in that relation, or his advice to his client, unless the client gives express consent. However, when the client voluntarily testifies, the attorney may be compelled to testify on the same subject.
An examination of the record herein discloses that while Mr. Spooner testified to some matters which cannot be properly classed as privileged, he also testified as to matters which were of a confidential nature and concerning which the defendant had not volunlarily testified. As pointed out by the Court of Appeals, much of this testimony was given on so-called rebuttal.
That plaintiff may have been present during most of the conversations between Mr. Spooner and the defendant would make no difference. The general rule that communications between an attorney and his client in the presence of a third person are not privileged, does not apply when such third person is the agent of either the client or the attorney. Bowers v. State, 29 Ohio St. 542; 70 Corpus Juris, 433, 435, Section 583; 8 Wigmore on Evidence (3 Ed.), 602, Section 2311.
"It is essential to the ends of justice that clients should be safe in confiding to their counsel the most secret facts, and to receive advice in the light thereof, without peril of publicity. Disclosures made to this end should be as secret and inviolable as if the facts had remained in the knowledge of the client alone." Dickerson v. Dickerson, 322 Ill. 492, 500, 153 N.E. 740, 743.
We have examined the cross-assignments of error urged by the defendant and find them insufficient to entitle her to final judgment.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.