The Redwood gazette., 1896-07-30

upon the motion as counter affidavit
against him was that of his former
attorney on the trial of the case fol
perjury and that the use and admis,
sion of this affidavit was error upon
the ground that it purported tc
disclose confidential communications
between him and his attorney and
that upon the face of the affidavit it
was privileged.
The rule is we'll settled that an at
torney cannot without the consent OF
his client, be compelled and has nc
right to disclose any fact which may
have been communicated to him by
his client solely for the purpose of OBJ
tanning professional assistance or ad-
vice. But we think this privilege
may be waived either by the conduct
or consent of the client. Such COM
munications are not privileged to the
extent of depriving the attorney of
the means of obtaining or defending
his right, same authority.
And we are of the opinion that if
the client voluntarily breaks the seal
of privileged silence, by vicious and
defamatory attack upon his attorney
upon matters otherwise privileged,
and makes them part of the public
judicial records of the state, the court
in the interests of justice ought to
permit the opposite party the use of
the attorneys denial by counter afida-
Wit. If the client does not wish a
repulse he should not attack. If he
does not wish the obligation of secrecy
released he should not divulge the
matter himself. In this case the
counter affidavit of the attorney is a
denial or explanation of the charge Of
the client. Not only was the public
interests at stake in this proceeding
but the reputation of member of the
bar in high standiug was violently
assailed and the appellant asks this
court to sanction the doctrine that he
can make the assault matter of judi
cial record where it shall forever re-
main dark stain upon the attorneys
reputation and that the public and the
attorney are without remedy even if
the charge is false. We cannot so hold.
We need not discuss the question of
whether the writ of coram nobis can
be resorted to in this state, because
the finding of the trial court would not
warrant it's issue herein if it can be
legally issued in any case.
By THE Court.
THE DISSENT.
[ concur in the result, but not in the
reasons given for that result. l am
clearly of the opinion that the counter
affidavit of the former attorney of
Madigan offered by the state, was not
when objected to by him, competent
or admissible. 1t attempted to dis
close confidential communications be-
tween attorney and client, which we're
privileged, and the mere fact that it
reflected on the attorney, (he not being
party to the proceeding,) did not
remove the privilege or make the afi-
davit competent. Supposing in such
case, the husbands evidence in his
own behalf reflected on the character
of his wife, would that make her a
competent witness in rebuttal? Ger
tainly not.
Neither is this rule as likely to re-
suit in failure of justice as the ma
jority seem to claim. When a party
or witness testifies to conversations
and the only person who could contra
dict them is not competent witness,
the evidence though uncontradicted
is not conclusive, but the jury and
court are at liberty to disbelieve it,
just as they are when the only person
who heard it is dead.
But am of the opinion that the ad-
mission of this affidavit wac orror
without prejudice.
Whether writ of error coram no.
bis will lie in this state in any case it
is unnecessary to decide. It certainly
will not lie when the party made a
i. S. Govt Report