been held that the knowledge of an attorney for a purchaser of land, of a defect in the title, is not imputable to his client until it becomes his duty to advise his client concerning it. This being held to be at the time when, by the terms of the contract, the balance of the purchase money is to be paid and the deed to be taken, the knowledge cannot be imputed before this time.33 Many cases impute to a purchaser of land the knowledge of his attorney, as may be seen by an examination of the cases set out in the notes in III. a, supra. The scope of the attorney's duties under his employment is the determinative fact in this connection.

IV. Facts acquired in transacting the business of another client.

a. In general.

Facts acquired by an attorney while acting for a client other than the one to whom a knowledge thereof is sought

tion against the most able counsel, because, of course, they would be more likely than others of less eminence to have notice, as they are engaged in a great number of affairs of this kind."

33 Kountze v. Helmuth (1893) 140 N. Y. 432, 35 N. E. 656, holding that the purchaser could not before this time, by his act, waive a defect of a title of which he had no actual knowledge, on the theory that knowledge of the defect was imputed to him from the knowledge of the attorney.

34 McCormick v. Wheeler (1864) 36 Ill. 114, 85 Am. Dec. 388, holding that knowledge of an attorney of the setting aside of the satisfaction of a judgment in favor of one client is not imputable to another client who held a junior lien upon the property covered by the first judgment, and who levied execution thereon without actual notice that the first judgment had not been satisfied.

Campbell v. Benjamin (1873) 69 Ill. 244, holding knowledge of attorneys. while acting for parties to a mortgage foreclosure and sale, of fraud therein, not imputable to a subsequent mortgagee of the premises, who employed the attorneys to examine the title.

Herrington v. McCollum (1874) 73 Ill. 476, holding knowledge of an attorney for the holder of the legal title of land, of equities in a third person, not

to be imputed occupy a peculiar relation to the question under consideration in this note. Facts acquired from another client may have been acquired within the period of the employment by the client sought to be charged, or before the time of such employment. It thus appears that there are two elements to be considered in dealing with knowledge so acquired. The courts, however, have not been consistent in dealing with this situation. A case involving facts so acquired is sometimes decided on the ground that the facts were acquired prior to the agency; sometimes on the ground that the facts were acquired from another client. The cases which consider the direct question, whether knowledge acquired in transacting the business of one client is imputable to another, do not answer the question uniformly. It has been held that knowledge obtained in transacting business for one client is not imputable to another,3 34 imputable to a subsequent purchaser of the land who employed him.

A letter written by an attorney of a plaintiff to the plaintiff, explaining the delay in collecting the claim on which suit was brought, was held not admissible to show notice to a defendant to the suit, although the writer of the letter was at that time the attorney of the defendant as well as of the plaintiff, in Equitable Securities Co. v. Green (1901) 113 Ga. 1013, 39 S. E. 434.

Sebald v. Citizens Deposit Bank (1907) 31 Ky. L. Rep. 1244, 14 L.R.A. (N.S.) 376, 105 S. W. 130, holding the knowledge of the president of a bank, who was acting as attorney for its directors in bankruptcy proceedings at the time he executed a note to the bank bearing the name of a solvent surety, of such insolvency, will not be imputed to the bank. It is stated, however, in this case, that the attorney was not representing the bank in the matter, but was representing the directors; but the court adds that "it is not presumed in law, therefore, that such attorney has communicated such knowledge to another client or principal, for to do so would necessitate his violation of the law and of his duty, which is never presumed."

In Denton v. Ontario County Nat. Bank (1896) 150 N. Y. 126, 44 N. E.

not when engaged in other business.36 It is, in other cases, attributed to the general proposition that the notice or knowledge must have been acquired by the attorney within the period of his agency; 37 it has been stated to be necessary "that the knowledge of the agent or attorney should be gained in the course of the same transaction in which he is employed by his client." 38 The reason is, says one court, "that no man can be supposed always to carry in his mind the recollection of former occurrences." 39 But in other cases, in which the fact sought to be imputed is one which was communicated by another client, and which comes under the class of a privileged communication, or is of such a nature, this holding is based upon the impropriety of thus communicating facts obtained from one client, to

mortgage in mind when acting for the creditor.

See McCormick v. Joseph (1887) 83 Ala. 401, 3 So. 796, infra, note 67.

36 Mundine v. Pitts (1848) 14 Ala. 84; Pepper v. George (1874) 51 Ala. 190.

37 Pepper v. George and McCormick v. Joseph (Ala.) supra.

See Taylor v. Evans (1897) 16 Tex. Civ. App. 409, 41 S. W. 877, supra, note 35.

38 Hood v. Fahnestock (Pa.) supra, approved in Martin v. Jackson (1856) 27 Pa. 508, 67 Am. Dec. 489.

See statement as to Pennsylvania cases, supra, note 14.

See Kirklin v. Atlas Sav. & L. Asso. (1900) — Tenn. 60 S. W. 149, in

fra, note 99.

39 Hood v. Fahnestock (Pa.) supra. The court in Mutual Bldg. & L. Asso.'s Case (1896) 19 Pa. Co. Ct. 504, referred to the statement in Hood v. Fahnestock, set out in the text, and states that, the reason for the rule having ceased, the rule itself ceases, and continues: "The reason ceases in the present case, as the point to be remembered was a present one, sticking out of the very transaction in question." See supra, for facts.

See cases infra, relating to imputing previously acquired knowledge.

40 In Brown v. Wilson (1895) 21 Colo. 309, 52 Am. St. Rep. 228, 40 Pac. 688, it is stated that it "would have been of doubtful professional propriety" on the part of an attorney to

another.40 "An attorney," says the court in one case, "is not required to disclose to one client the secrets of another, intrusted to him professionally by the other client in the transaction of his business." 41 That knowledge acquired by an attorney in conducting business for one client is not imputable to a subsequent client, where it would be a breach of professional confidence to make the disclosure, is held in some cases that take the general view that such knowledge will be imputed ordinarily, where it was present to the mind of the attorney.42 In some cases in which the notice was imputed to the client, it is stated that the knowledge was acquired by the attorney in such a manner that he might communicate it to his client, or act upon it, without being guilty of any violation of duty.43 For communicate such facts. Facts were as to irregularity in obtaining a judgment; see supra.

While it does not appear that the knowledge sought to be imputed in Hood v. Fahnestock (1839) 8 Watts (Pa.) 489, 34 Am. Dec. 489, supra, was a confidential communication, it is stated by the court that knowledge acquired by an attorney in one transaction will not be imputed to another client in another transaction, because "it might be contrary to his duty to reveal the confidential communication of his client."

See Akers v. Rowan (1890) 33 S. C.' 451, 10 L.R.A. 705, 12 S. E. 165, infra, 97.

41 Downer v. Porter (1903) 116 Ky. 422, 76 S. W. 135. See Sebald v. Citizens Deposit Bank, (1907) 31 Ky. L. Rep. 1244, 14 L.R.A. (N.S.) 376, 105 S. W. 130, supra, note, 34.

42 Melms V. Pabst Brewing Co. (1896) 93 Wis. 153, 57 Am. St. Rep. 899, 66 N. W. 518, holding that the knowledge of an attorney for executors of the invalidity of the sale to one of their number, will not be imputed to a purchaser from the executor, where the same attorney was ployed by the executor and his vendee in completing the transaction.

em

43 Littauer v. Houck (1892) 92 Mich. 163, 31 Am. St. Rep. 572, 52 N. W. 464, imputing to an execution creditor knowledge of his attorney of a mortgage on the goods on which the execution was levied, acquired in a conver

further cases holding that knowledge acquired by an attorney in acting for one client will not be imputed to another, see IV. b, infra.

On the contrary, it has been held that knowledge acquired by an attorney when acting for one client is imputable to a subsequent client, where the former employment was of recent date.44 And in many cases the fact that the knowledge sought to be imputed was acquired in the service of another client is not considered, at least not beyond the fact that it was acquired in another transaction.45

Not all knowledge obtained by an attorney when engaged in the work of a client comes by way of a confidential communication, and as to such knowledge there has been held to be no argument against its imputation on the ground of confidence. Thus, there has been held to be nothing of a confidential nature in the pendency of an action, which would prevent knowledge thereof by an attorney for a party therein being imputed to another client of the attorney, under the rule that the doctrine of imputed notice

sation with the mortgagee a few days previous to the receipt of the claim on which the suit was afterwards brought, judgment obtained, and execution levied.

44 Melms V. Pabst Brewing Co. (1896) 93 Wis. 153, 57 Am. St. Rep. 899, 66 N. W. 518 (dictum). See supra, for facts.

In Dunlap v. Wilson (1863) 32 III. 517, there is obiter to the effect that if an attorney had been recently employed in drawing a mortgage on certain lands he must be presumed to have acted with reference to his knowledge thereof, and the knowledge thus possessed by him is imputable to a subsequent purchaser of the land, who employed him. But see McCormick v. Wheeler (1861) 36 III. 114, 85 Am. Dec. 388, supra.

45 See infra, V.

46 Trentor v. Pothen (1891) 46 Minn. 298, 24 Am. St. Rep. 225, 49 N. W. 129.

See Holmes v. Long (1918) Tex. Civ. App., 207 S. W. 201, supra, note 10. 47 Taylor v. Evans (1894) Tex. Civ. App., 29 S. W. 172. 48 Blackwell V. British Mortg. Co. (1902) 65 S. C.

American 105, 43 S.

does not extend to knowledge of a confidential and privileged nature, acquired through previous professional engagements, which the attorney was not at liberty to communicate to the client.46 It has been held that information imparted to an attorney in an attempt to evade the Assignment Laws is not protected as confidential.47

b. Attorney acting for both clients at the same time.

1. In general.

Where the attorney is acting for several clients at the same time, and in the same business, it has been held that notice to or knowledge of the attorney, acquired in the transaction of the business of one of the clients, is knowledge to all the clients. Thus, a nonresident mortgage company has been held chargeable with the knowledge of an attorney who represented it and the borrower in making a loan.48 This rule is invoked in case

of an attorney who represents several creditors of a debtor; his knowledge is imputed to all his clients.49 Knowl

E. 395, holding a nonresident mortgage company chargeable with the knowledge of an attorney who negotiated the loan, preparing the abstract, passing upon the title, etc., and who is held to have acted as agent both for borrower and lender, that a conveyance in the chain of title, which purported to be an absolute one, was in fact a mortgage.

Compare with Kirklin v. Atlas Sav. Tenn. & L. Asso. 60 S. W. 149, infra, note 99.

And see PYEATT v. ESTUS (reported herewith) ante, 1570.

49 City Nat. Bank v. Jeffries (1882) 73 Ala. 185, holding the knowledge of an attorney for three creditors of a failing debtor, of a compromise which he attempted, favoring two of the creditors, the third creditor to share with other creditors on less favorable terms, is notice to the third creditor so as to prevent the attempted compromise from being fraudulent as to him.

Haven v. Snow (1833) 14 Pick. (Mass.) 28. Knowledge of an attorney for several attaching creditors, of an attachment levied in favor of one of his clients, is imputable to his other

edge of an attorney when acting for one creditor, of fraud in the discharge of the debtor in insolvency proceedings, is imputable to another creditor whom the attorney represented in an action against the debtor.50 The rule is also invoked where the attorney represents the debtor and some of the creditors.51 Knowledge of insolvency and of an intent to give an unlawful preference, possessed by an attorney for an insolvent debtor, is imputable to a creditor who employed such attorney.52 This has been held true, even if the creditors did not know that the attorneys employed represented the debtor.53

Where an attorney who has acquired knowledge of certain facts while acting for one client, afterwards, and while still representing this client, is employed by another in a matter arising out of the transaction in which the knowledge was obtained, notice of this fact has been imputed to the subsequent client,54 and reversely, when an attorney, while representing one client, has, while in the employment of another and subsequent client, obtained knowledge relating to the subject-matter of his first employment, such knowledge is imputable to the first client.55

In a case in which the knowledge of attorneys for an insolvent debtor, of clients in whose favor attachments were subsequently levied.

Burns v. Wilson (1897) 28 Can. S. C. 207, holding the knowledge of an attorney who represented creditors of an insolvent debtor and a lender upon the security of a chattel mortgage upon the insolvent's goods, imputable to the lender, where the knowledge was acquired in making the loan. The creditors in this case were paid with the money secured by the loan.

50 Blake v. Clary (1891) 83 Me. 154, 21 Atl. 841.

51 Shideler v. Fisher (1899) 13 Colo. App. 106, 57 Pac. 864, holding knowledge of an attorney for an insolvent debtor and several creditors, of fraud in a mortgage taken for the benefit of the attorney and the creditors whom he represented, in that it secured the attorney for future services to be rendered the insolvent, notice to the creditors.

the insolvency, and his intent to prefer creditors, was imputed to a creditor who employed such attorneys to prosecute his claim, it has been held that so long as the knowledge was acquired while the employment of the attorneys by the creditor was in force, it is imputable, no matter how such knowledge was acquired. The court states that to say that the knowledge which came to the attorneys "came to them because they were attorneys for the debtors on a prior employment does not help the case. They were none the less acting for the bank, and the facility they had, through their employment for the debtors, to do just what was done in this case to secure the preference, is no mitigation; otherwise, all that a creditor seeking a preference need do is to employ the debtor's prior attorney." "56

Some cases, taking the view that' knowledge will be imputed, emphasize the manner in which the knowledge was obtained. For example, the court in imputing knowledge of fraud in the discharge of an insolvent debtor, to a creditor represented by an attorney who was present in court at the time of such discharge, as attorney for another creditor, states: "This knowledge was not obtained by confidential communications or other means which would justify them in withholding it

Knowledge of an attorney for a failing debtor and a number of creditors, in whose favor mortgages were given or judgments confessed, of a prior unrecorded mortgage given by the debtor, is imputable to the creditors for whom the attorney acted. Haas v. Sternbach (1895) 156 III. 44, 41 N. E. 51. This is held true, although the attorney was employed by the debtor; see further as to this case, infra.

52

Wight v. Muxlow (1875) 8 Ben. 52, Fed. Cas. No. 17,629; Brown v. Jefferson County Nat. Bank (1881) 19 Blatchf. 315, 9 Fed. 258.

53 Brown v. Jefferson County Nat. Bank (Fed.) supra.

54 Donald v. Beals (1881) 57 Cal. 399; see facts, infra, note 71.

55 See Walker v. Schreiber (1877) 47 Iowa, 529, supra, note 16.

56 Brown v. Jefferson County Nat. Bank (Fed.) supra.