In re Collins

BALLARD, District Judge.

I concur with the register in the conclusions which he announces, and I approve of nearly all that is said by him in enforcing the correctness of his conclusions. I have heretofore decided, in Re Leacliman [Case No. 8,157], that a bankrupt cannot be denied the benefit of counsel; that he may be attended by his counsel while under examination, and that the counsel may propound to him questions for the purpose of explaining anything already testified to, or of developing any new material fact. But it is quite a different thing to allow the examination to be suspended that the bankrupt may consult with liis counsel privately. The allowing of such suspension and consultation would destroy the whole virtue of an examination. It might give the bankrupt time and opportunity to elude the effect of every examination designed to expose his deceit and falsehood. In the courts of the United States and in the courts of the states in which parties to suits are competent witnesses, I have never heard of the trial being suspended that a party on the witness stand might consult with his attorney before answering a question propounded to him. There may be a case in which such a privilege might or should be allowed, as for example, where the examination might implicate the bankrupt in a criminal charge, or requires the disclosure of facts against which he is protected by law. But even in such case the presence of the bankrupt’s counsel will generally, if not always,'furnish all the protection needed without the allowing of a private consultation. Upon the whole, I think that no rule applicable to all cases can be laid down by the court which will enable registers to determine when a bankrupt under examination ought, or ought not, to be allowed to consult counsel, independently of the particular questions and the particular circumstances under which it is put. The solution of the matter must be left mainly, if not entirely, to the good sense and judgment of the register; generally he should not allow consultation, but if a case should arise in which its allowance would not seriously delay the proceeding nor tend to defeat the effect of the examination, I think it would be a proper exercise of the discretion of the register to grant it. Perhaps it is not proper to lay down here a rule for all cases, and I shall not further attempt it. The action of the register in this case is clearly right. Time, the question propounded does not appear to me very material, and that it seems not very important what answer shall be made to it; but no question is submitted touching the materiality of the interrogatory, nor could I, upon the facts disclosed in the certificate, decide such a question. The only questions certified relate to the right of the bankrupt to consult with his attorney before answering, and I am clearly of the opinion that there is nothing in the question propounded, nor in any of the facts certified, which shows that there was the slightest necessity for allowing a consultation in this case.