# State v. Emmanuel

> Washington Supreme Court · July 2, 1953 · 42 Wash. 2d 799

URL: https://www.frixlaw.com/law-library/cases/9883263

## Case

- **Full name:** The State of Washington, Respondent, v. Samuel Emmanuel, Appellant
- **Court:** Washington Supreme Court
- **Decided:** July 2, 1953
- **Citations:** 42 Wash. 2d 799; 259 P.2d 845; 1953 Wash. LEXIS 515
- **Precedential status:** Published
- **Opinion:** Concurrence by Finley
- **Judges:** Donworth
- **Cited by:** 110 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9883263

## How later opinions describe it (automated extraction)

- recognizing and applying doctrine where “[t]he persons present at this conference had a mutual interest in defending against the allegations of [the] complaint”
- holding that R.C.W. 5.60.-060(2) adopts the common law of privilege.

## Opinion text

Finley, J.
(concurring in the granting of a new trial but
dissenting in part)—I agree with the majority that the language of instruction No. 5 was not adequate to apprise the jury, clearly and precisely, of one of the essential elements of the crime charged; furthermore, that the state had no right to assert the claim of privilege respecting a communication which purportedly took place at a conference between Mr. England and Mr. Emmanuel, and their respective attorneys, relative to a lawsuit in Federal court in which England and Emmanuel were defendants. I disagree with the view of the majority that the purported communication was confidential, and with the inference that follows therefrom that either Mr. England or his attorney may have the right to assert privilege resulting in the exclusion of testimony regarding the purported communication.
The claim of privilege by an attorney may rest upon the statute (RCW 5.60.060 (2)) or upon common-law principles, since the statute is said to be declaratory of the latter. A claim of privilege by a client called as a witness rests only upon common-law principles. This seems clear, upon examination of the language of the statute, which reads:
“An attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.”
Absent the factor of confidentiality, neither the statute nor the common law will support the claim of privilege and an exclusion of evidence based thereon.
The reasoning of the majority is that, at the conference, Messrs. England and Emmanuel were not opposing parties *824 in a lawsuit and, consequently, that the situation is not one where a communication would be unprivileged because of the adverse interests of the parties. However, in the lawsuit in Federal court which occasioned the conference between Messrs. England and Emmanuel and their respective attorneys, the second cause of action alleged on information and belief that appellant Emmanuel and other brokers had conspired to induce Mr. England to breach a contract to pay a commission to a California real-estate broker, and to pay the commission to Mr. Emmanuel and his coconspirators. It seems to me that the majority goes too far in assuming that the interests of Messrs. England and Emmanuel were mutual, that their interests were not diverse, in regard to the second cause of action. The contrary seems more likely to me and that, as' opposing parties with diverse interests, it should follow that confidentiality was lacking with respect to the communication which purportedly took place at the conference, and that the claim of privileged communication may not be validly urged, under the circumstances, either by Mr. England or his attorney.
I think another fact negatives confidentiality, namely, the presence of Mr. Emmanuel’s attorney at the conference. The record does not show that, he was retained by, or that he was under any professional obligation to, Mr. England. No attorney-client relationship existed between them. Emmanuel’s attorney was a free agent, or perhaps even a stranger, in so far as Mr. England was concerned. This certainly appears to me to be not wholly consistent with the thought that the conference was secret and confidential. (Compare Smale v. United States, 3 F. (2d) 101, where a statement made by one defendant to the attorney for a co-defendant was held not to be privileged.) It is my feeling that the parties were dealing at arm’s length—each represented by his own competent counsel. I believe it is just as logical to say that their purpose was one-sided, and that they were motivated by self-interest, as it is to say that they met to negotiate a mutual security pact as to common or identical interests.
*825 Finally, I think a clear-cut distinction must be made as to Mr. Emmanuel’s attorney. If he is called as a witness at the new trial, RCW 5.60.060 (2) would not be a restraint upon his testifying as to matters which occurred at the conference; furthermore, the same can be said of- common-law principles. This is for the simple reason that no attorney-client relationship existed as between England and Emmanuel’s attorney. As a practical matter, I cannot see how the question of privilege could be raised against testimony by Emmanuel’s attorney, unless the trial court would permit Mr. England (present in court only as a spectator or as a witness) to arise, interrupt the proceedings, and assert privilege, requiring exclusion of the questioned confidential communication. This would be an unusual, as well as a somewhat surprising, procedure, to say the least.
VIII Wigmore on Evidence (3d. ed.) 547, § 2290 et seq., indicates that the rule regarding the confidential nature of communications between attorney and client has been adhered to by the courts for several centuries. Despite this, and the fact that the rule is partly based upon statute in our state, it seems to me that some reconsideration and qualification regarding the rule may well be in order, both by the courts and the legislature. Originally, the rule was justified on the theory that an attorney’s code of honor prevented him from revealing secrets of his client. The attorney and not the client could raise the question of the privileged nature of attorney-client communications. In the course of years, another justification for the rule was advanced, namely, that, as a matter of public policy, it was desirable for clients to feel secure in divulging information to their attorneys. Under the latter rationale, either the attorney or the client could raise the question of privilege and avoid questioning as to confidential communications. It is difficult for me to accept as logical the justification or theory that the rule encourages clients to divulge information to their attorneys, because very few clients have any idea that such a rule exists; furthermore, if secrecy and protection of a client is the principal justification for the rule, its objective is almost wholly defeated in situations like *826 the instant case by permitting an offer of proof to be made, indicating that a conference took place and that certain statements, purportedly, were made at the conference, and that the facts as to a conference and statements made could be established by testimony if the rule of privilege was not enforced by the trial court. After such an offer of proof is made, there is no secrecy or confidentiality except in so far as a particular jury of twelve individuals may be concerned. Except for the members of a particular jury, the offer of proof, alleging that a conference took place and that certain statements were made, becomes public information. Secrecy, confidentiality, and protection of a purported client ceased to exist as a practical matter after the offer of proof was made.
I agree with the views of the majority, except as indicated hereinbefore.
Hill, J., did not participate.
September 10, 1953. Petition for rehearing denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9883263. Public record. Not legal advice.