Majority
p. 285Helen W. Richards, Plaintiff, v. John Tredwell Richards, Defendant. (Supreme Court, New York Special Term, August, 1909.)
Headnote
Witnesses — Disqualification by reason of confidential relation — Between attorney and client — Collateral matters — Client’s residence.The communication to an attorney by his client of the latter’s place of abode is wholly collateral to the subject of the attorney’s professional employment and is not a privileged communication within section 835 of the Code of Civil Procedure.
Action for separation. Motion therein to compel the defendant’s attorney to disclose his client’s place of residence for the purposes of service upon the latter of an order requiring him to pay counsel fees and alimony pendente lite. Opposed upon the grounds that the defendant’s communication of his place of residence to his attorney was made upon a promise not to reveal it, and that it was made in the course of the attorney’s professional employment and is protected against disclosure by the provisions of section 835 of the Code of Civil Procedure.
Griggs, Baldwin & Pierce, for plaintiff.
Wm. C. White, for defendant.
Section 835 of the Code of Civil Procedure does not protect against disclosure every communication which the client may choose to make to his attorney under a pledge of secrecy. It protects only such communications as the • client may make not pending the attorney’s professional employment, but "in the course of it.” To come within the protective provisions alluded to, therefore, the communication must be one essentially confidential and relate to the subject-matter upon which the attorney’s advice was given or may be sought. Such communication to the attorney of the client’s place of abode or residence is not, nor is the concealment of the subject-matter of such a communication, essential t;
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the attorney’s counsel or advice. Indeed, if the attorney is to communicate with his client by correspondence the disclosure of the latter’s whereabouts would follow and its non-confidential character be obvious. Such a communication, also, is wholly collateral to the subject of the attorney’s professional employment. The attorney’s promise of concealment of his client’s whereabouts could therefore have had in view nothing more than to keep the knowledge of such whereabouts from a particular person — the plaintiff —• and that in order to support the defendant in his defiance of the order which directs him to pay alimony and counsel fees made in his wife’s action for divorce. The court’s countenance of the attorney’s promise under such circumstances would mean nothing short of giving its aid to the defendant in his contemptuous attitude toward itself, and under the provisions of section 457 of the Penal Code the attorney’s promise to conceal his client’s whereabouts for the purposes alluded to comes dangerously near to being a crime, the promise being in effect “ a combination with another to resist ” the court’s mandate. I can perceive no valid reason for changing or modifying my decision that the defendant’s attorney should disclose the defendant’s present whereabouts.
Ordered accordingly.