
    Case No. 2,975.
    In re COLE.
    [8 Reporter, 105; 7 Wkly. Notes Cas. 114.]
    Circuit Court, E.D. Pennsylvania.
    May 9, 1879.
    Practice—Commission to Take Testimony—Examination—Regularity*—Counsel and Client —Privileged Communications—Perpetrating Crime.
    1. Where a commission to take testimony has issued from the court of another circuit, and the aid of the court in whose jurisdiction tlie witnesses reside is sought to enforce it, the latter court will not inquire into the regularity of the issuance of the commission before compelling witnesses to answer.
    2. Privileged communications between counsel and client are those which are lawful, and which relate to the business of the client, and fall within the scope of professional duty. A communication relating to the perpetration of a crime by the counsel is not privileged.
    Motion for attachment C. C. Gole, Esq., was of counsel for the Iowa Central Railroad, in a suit in the circuit court of Iowa, to foreclose a mortgage on said road. It L. Ash-hurst, Esq., was chairman of a committee of stockholders of the road; J. F. Gate was president of the said road; both the latter gentlemen were in frequent confidential communication with Cole, with reference to the litigation and matters connected therewith. During the case certain libellous publications appeared, attacking the character and motives of [Hon. John Dillon, United States circuit judge for the district of Iowa]  the judge before whom the case was. Cole was charged with the authorship of said publications, and proceedings were bad by tbe Iowa bar association for tbe purpose of disbarring him as intending to obstruct the course of justice; and a commission was directed by the circuit court of Iowa to a commissioner in the eastern district of Pennsylvania, directing him to take testimony. Before the commissioner, Messrs. Ashhurst and Cate refused to answer certain questions as to whether they had received certain letters from Cole, &c., on the ground that they were confidential communications between counsel and client. Attachments were then asked for.
    Cook & Lane, for the motion.
    E. G. Platt and J. C. Bullitt, contra.
    
      
       [Reprinted from 8 Reporter, 105, by permission.]
    
    
      
      
         [From 7 Wkly. Notes Gas. 115.]
    
   BUTLER, District Judge.

Two questions were raised: 1. That the circuit court of Iowa had no authority to issue the commission. 2. That the communications were privileged.

As to the first, I, as a judge, have no authority to inquire into the jurisdiction of the circuit court of Iowa, or whether or not' there is there pending a civil action. That court has decided that question, and issued a commission. It would be highly discourteous to look behind its record, and I decline to do so.

Secondly, are the communications privileged'/ Tbe general law in regard to privileged communications is well understood, and originated far back in tbe history of jurisprudence. How far, in modem times, the law has been modified, it is not now necessary to consider. It is sometimes said that all communications between counsel and client are privileged; but this is too general, and is inaccurate. They must relate to the business and interest of tbe client; and, moreover, they must be lawful; for, if unlawful, public policy forbids their concealment under the plea of privilege; and, if lawful, they must fall within the scope of professional duty. Communications by counsel to client, likewise, are usually privileged, because closely connected with the client’s interest and business. See Weeks. Attys. at Law, p. 252. Suppose a case most favorable to the witnesses, viz., that these communications were by client to counsel, would they be privileged? I do not mean to imply any fault in these gentlemen. I have no doubt they are entirely free from blame. But suppose a client had devised, with the assistance of counsel, a scheme to obstruct tbe administration of justice, would the communications be privileged? The authorities applicable to such cases say not. The charge here is that Mr. Cole intended to promote perpetration of crime. Had it not been for tbe learned argument of counsel who opposed the motion, I should not have had the slightest doubt about the case. The matter does not fall within the scope of professional employment Moreover, these communications have been already given to the public. The inquiry is not what they were, but who made them, and bow are the client’s interests affected by them? The protection is for the benefit of the client, not the counsel. I am of opinion ed to tlie proper officer of the treasury for settlement, and disallowed.

THE COURT (THRUSTON, Circuit Judge, absent), at May term, 1S22. decided that the third auditor could not authenticate a copy 'of the bond; his power of authentication, under the act of March 3, 1817 (3 Stat. 366), extending only to “transcripts from the books and proceedings of the treasury in regard to the accounts of the war department,” and that copies of bond must still be certified by the register,and authenticated under the seal of the department, according to the act of March 3, 1797 (1 Stat. 512).  