We indicated in the original opinion that a privileged communication between principal and agent may be waived, Louisville Nashville R. R. Co. v. Hill et al., 115 Ala. 334,22 So. 163; and between an attorney and client, Hawes v. State,88 Ala. 37, 7 So. 302; Cotton v. State, 87 Ala. 75, 6 So. 396.
As between the client and attorney the privilege is for the benefit of the client and may be waived. Code of 1923, § 7658. The privilege is for the benefit of the attorney of the client as to any matter or thing knowledge of which he may have acquired from his client by virtue of his relation as attorney or by reason of his anticipated employment as attorney. Code, § 7726. Said statute further provides that an attorney "shall be both competent and compellable to testify, for or against his client, as to any matter or thing, knowledge of which he may have acquired in any other manner." These statutes were enacted to protect lawful transactions between an attorney and a client and not to effectuate or facilitate the commission of crime.
In the case at bar the proponent is Mr. Sawyer, who was named in the alleged will as executor. The record shows that the LeFurgeys were interrogated by the proponent on direct examination, concerning the matter about which Mr. Wolfes was interrogated by contestants. The inquiries made by Mr. LeFurgey, who was not a beneficiary under the will, were material to the success of the allegation as to forgery of the will and as to whether a will had been made by the testator.
The right of waiver of the privilege by a party to a litigation is well established by the decisions in other jurisdictions. As we understand the general authorities, the question of a waiver is not presented, but that of an exception to the general rule of "privileged communications."
Privileged communications to an attorney by a client in an attempt to establish a false claim was the subject of consideration and exhaustive annotations in 5 A.L.R. 977, to the effect that "since the perpetration of a fraud is outside the scope of the professional duty of an attorney, no privilege attaches to a communication between attorney and client with respect to the establishment of a false claim." Such was the effect of the holding in Standard Fire Ins. Co. v. Smithhart,183 Ky. 679, 211 S.W. 441, 5 A.L.R. 972.
In 125 A.L.R. 512 et seq., state and federal authorities, as well as those from England, Ireland and Canada are collected to the effect that the great majority of the cases hold that theprivilege "protecting communications between attorney and client is lost if the relation is abused, as where the clientseeks advice that will serve him in the commission of a fraud." Such is the rule that obtains in the instant case. [Italics supplied in quotation.]
It may be said further that the reason most frequently advanced for this exception to the rule of privileged communications is that there is no professional employment,properly speaking, in such cases. Standard F. Ins. Co. v. Smithhart, 1919, 183 Ky. 679, 211 S.W. 441, 5 A.L.R. 972; Cummings v. Com., 1927, 221 Ky. 301, 298 S.W. 943; Strong v. Abner, 1937, 268 Ky. 502, 105 S.W.2d 599; People v. Van Alstine, 1885, 57 Mich. 69, 23 N.W. 594; Hamil Co. v. England, 1892, 50 Mo. App. 338; Carney v. United R. Co., 1920,205 Mo. App. 495, 226 S.W. 308; Matthews v. Hoagland, 1891,48 N.J. Eq. 455, 21 A. 1054; Coveney v. Tannahill, 1841, 1 Hill, N.Y., 33, 37 Am.Dec. 287; People v. Warden, 1934, 150 Misc. 714,270 N.Y.S. 362; Id., 242 A.D. 611, 271 N.Y.S. 1059; Russell v. Jackson, (1851) 9 Hare 387, 68 Eng.Reprint 558; Charleston v. Coombes (1863) 4 Giff. 372, 66 Eng. Reprint 751; Reg v. Cox [1884] LR. 14 QB. Div. (Eng.) 153 — CCR; Re. Postlethwaite [1887] LR. 35 Ch.Div. (Eng.) 722.
In Reg. v. Cox, supra, the court said. "In order that the rule may apply, there must be both professional confidence and professional employment, but if the client has a criminal object in view in his communications with his solicitor one of these elements must necessarily be absent. The client must either conspire with his solicitor or deceive him. If his criminal *Page 46 object is avowed, the client does not consult his adviser professionally, because it cannot be the solicitor's business to further any criminal object. If the client does not avow his object, he reposes no confidence, for the state of facts which is the foundation of the supposed confidence does not exist. The solicitor's advice is obtained by a fraud."
So, in Strong v. Abner, 268 Ky. 502, 105 S.W.2d 599, 602, the court said: "* * * The protection which the law affords to communications between attorney and client, has reference to those which are legitimately and properly within the scope of a lawful employment. It does not extend to communications made in contemplation of * * * a crime, or perpetration of a fraud." See also Standard F. Ins. Co. v. Smithhart, 183 Ky. 679,211 S.W. 441, 5 A.L.R. 972.
The Michigan court in People v. Van Alstine, 57 Mich. 69,23 N.W. 594, 598, in holding not privileged communications to an attorney having for their object the commission of a crime, said: "They then partake of the nature of a conspiracy, or attempted conspiracy, and it is not only lawful to divulge such communications, but under certain circumstances it might become the duty of the attorney to do so. The interests of public justice require that no such shield from merited exposure shall be interposed to protect a person who takes counsel how he can safely commit a crime. The relation of attorney and clientcannot exist for the purpose of counsel in concocting crimes."
In Charlton v. Coombes (1863) 4 Giff. 372, 66 Eng.Reprint 751, the English court said: "The court cannot permit it to be said that the contriving a fraud forms part of the professional business of an attorney or solicitor."
To the same effect is Garside v. Outram (1856) 3 Jur.NS. (Eng.) 39, and Annesley v. Anglesea (1743) 17 How.St.Tr. (Eng.) 1229.
The authorities are ample to the effect that anintended crime or fraud on the part of a client will not destroy the privilege ordinarily accorded communications between attorney and client, there must be prima facie evidencethat it has some foundation in fact. Such are the holdings in Clark v. United States, 1933, 289 U.S. 1, 53 S. Ct. 465,77 L. Ed. 993, and well considered opinions from Georgia, Massachusetts, Missouri, New York, Pennsylvania, as well as from England.
The communications in question were subsequent to the date of the will and no doubt these inquiries were made to aid in the production and probate of the alleged will. The record has been carefully examined again, in the light of the many authorities set out above, and we are now of the opinion and hold that thematter stated by Mr. Wolfes, an attorney, over the objection of Mr. Sawyer, the proponent of the will, fell within theexception to the general rule of privileged communications, and no error was committed by the trial court in admitting the testimony of such witness.
A further examination of the record and charges and rulings on charges presented for review are found not to warrant a reversal of this cause. True we have said the charges "A", "B" and "D" were argumentative and could well have been refused, but we do not find anything to cause a reversal. It follows from the above that the former judgment of reversal is set aside and one here rendered granting the application for rehearing and affirming the judgment of the trial court.
Application for rehearing granted. Former judgment set aside and case affirmed.
GARDNER, C. J., and BROWN and FOSTER, JJ., concur.
KNIGHT, J., not sitting.