On Rehearing.
PAULSON, Judge.The appellant has petitioned for a rehearing in this case, asserting that this court overlooked certain points in determining that the attorney-client privilege had not been breached by the testimony of the witness Meschke. Appellant bases his assertions primarily on portions of two North Dakota statutes. Section 27-13-01 of the North Dakota Century Code states in pertinent part:
“Every attorney and counselor at law shall:
⅜ ⅜ ⅜ * * *
“4. Maintain inviolate the confidence, and at any peril to himself, preserve the secret, of his client * *
and Section 31-01-06, N.D.C.C., reads:
“ A person cannot be examined as a witness in the following cases:
“1. An attorney, without the consent of his client, cannot be examined as to any communication made by the client to him, nor as to his advice given thereon in the course of professional employment * *
We will comment on these two statutes in the order above presented. Assuming for the purposes of argument that Section 27-13-01, N.D.C.C., does not allow an attorney to testify concerning his client’s secret, regardless of waiver on the part of the client, we are of the opinion on the basis of the record before us, that no “secret” is involved here. The answer of the witness Meschke to the question by the court (which is set out in the principal opinion) clearly shows the non-confidentiality of the statement made to Mr. Henderson.
“In order that the rule as to privileged communications between an attorney and his client or its reason apply, it is inherently necessary that the communication made by the client to the attorney be confidential. Therefore if the client chooses to make or receive his communication in the presence of third persons, it ceases to be confidential and is not entitled to the protection afforded by the rule.” [In re Busse’s Estate, 332 Ill.App. 258, 75 N.E.2d 36.]
And see La Moore v. United States, 180 F.2d 49, 12 Alaska 556 (9th Cir. 1950).
Although the foregoing answers the contention of the appellant based upon Section 27-13-01(4), N.D.C.C., we do not retreat from our position, as taken in the *709principal opinion, that failure to object to the presentation of testimony by an attorney regarding a communication to or from a client waives the attorney-client privilege. Weisser v. Preszler, 62 N.D. 75, 241 N.W. 505 (1932); La Moore v. United States, supra. The soundness of this holding is pointed out by the situation presented in this case. Had the appellant objected to the testimony of the witness Meschke, the State would have been allowed to obviate the objection by an offer of proof concerning (1) the non-confidentiality of the communication and (2) the nonexistence of an attorney-client relationship. In contravention of this offer of proof, appellant could have offered testimony that the presence of Mr. Helgeson at the conference in which the alleged privileged communications took place was necessary to their efficacy, and, further, that a bona fide attorney-client relationship did exist. As with any claimed error presented for the first time on appeal, this court is faced, as a general rule, with an inadequate record on which to render a decision. However, in this case, we are able to determine from the record that the testimony given by the witness Meschke was not first uttered in a confidential setting, because of the presence of Mr. Hel-geson.
Appellant’s argument in regard to Section 31-01-06(1), N.D.C.C., is that an attorney can only be examined with the consent of the client, and that the consent can only be given in two ways, which are: (1) by express consent, and (2) under the terms of Section 31-01-07, N.D.C.C.
Section 31-01-07 provides:
“If a person testifies as a witness as to any subject which comes within the protection of any of the provisions of the first three subsections of section 31-01-06, he shall be deemed to have consented to the examination of an attorney, clergyman, priest, physician, or surgeon on the same subject matter.”
Appellant claims this method of consenting to testimony by an attorney is exclusive. That is, that the legislature provided for this method and intended to provide for no other. Appellant, of course, negates that argument in his own petition for rehearing when he states: “The client, of course, can specifically give consent to the testimony.” Be that as it may, appellant misconstrues the intent of the legislature in enacting Section 31-01-07, N.D. C.C. The obvious intent was to prevent the several privileges set out in Section 31-01-06, N.D.C.C., from being used as a sword instead of a shield [Steen v. First National Bank, 298 F. 36 (8th Cir. 1924)]; that is, to prevent the claimant of the privilege from testifying as to his version of the communications and then, by claiming the privilege, refusing to allow any testimony which could possibly rebut his version. In this regard, see Steen v. First National Bank, supra; Swanson v. Domning, 251 Minn. 110, 86 N.W.2d 716. The legislature did not intend, by the enactment of Section 31-01-07, N.D.C.C., to negate other possible methods of consenting to, or waiving, testimony regarding alleged privileged communications.
For the foregoing reasons the petition for rehearing is hereby denied.
TEIGEN, C. J., and STRUTZ, ERICK-STAD and KNUDSON, JJ., concur.