His bill of costs showed that he had delivered the issue, made two copies of the pleadings for briefs, had conferences with the bankrupt, given notice of trial, and taken the opinion of counsel on all the facts of the case. Afterwards, and before the trial, he was discharged by the plaintiffs, who now swore to their belief that he was fully acquainted with all the circumstances of their case and that the defendant's employing him would injure the plaintiffs."

Three of the judges gave opinions. Bayley, B., rested his judgment on the circumstance that the clients, the assignees (plaintiffs in the case), made no affidavit. He said: "But the chief foundation of my opinion here is that the clients, the assignees, make no affidavit. The attorney here having been in the first instance concerned for them, they know and can best tell whether they made confidential communications or not to Jay, which it would be material that he should not disclose to the defendant. But no such matter is sworn to by either of them or their solicitor. It has been argued that the case drawn and submitted to counsel for his opinion must have conveyed such. information to Mr. Jay. If that were so, the affidavits should have stated that it did contain facts necessary to be kept from the defendant's knowledge, in order to prevent injury from accruing to the plaintiffs by the disclosure. If the assignees had sworn that they had made communications to Mr. Jay of that essential importance that, if disclosed to the defendant, they as plaintiffs would be materially prejudiced in their suit, I should have hesitated to discharge this rule and to suffer Mr. Jay to act for the defendant; but as no assignee or creditor states that a single material fact was communicated to Jay, and the application is rested solely on the affidavits of the plaintiffs' present attorney and his clerk, whose conclusions of the amount of Mr. Jay's knowledge of the facts are drawn from his bill of costs, I am of opinion that no sufficient case is established upon which the court can make this rule absolute:" 4 Tyrw. 82, 83.

Bolland, B., said: "I agree with my brother Bayley, and for the same reasons. We are here to decide on the rights of three parties; viz., of the defendant who seeks to employ Mr. Jay as his attorney, of Mr. Jay whose interest is concerned in that employment, and of the plaintiffs, who wish to restrain the defendant from having Mr. Jay's ser vices on this particular occasion. Now, the affidavits disclose no facts sufficiently strong to warrant us in exercising our power to restrain him from acting as attorney to the defendant. The only fact on which his so acting is objected to by the plaintiffs is that he has been before employed by them in this case, and afterwards discharged by them, but without any imputation of misconduct. Now, in Cholmondeley v. Clinton, Lord Eldon, after consulting all the common law and equity judges, seems to have been of opinion that a solicitor discharged by his client for any reason other than misconduct is differently situated from a solicitor who has withdrawn voluntarily from the cause in which he had been employed, and that he was therefore clearly at liberty to employ his talents and exertions for the opposite party; though if he

afterwards communicated to the latter the secrets of his former client, or in his new employment improperly used that knowledge of them with which he had been confidentially entrusted by his original client so as to injure or prejudice him, the court might interfere to punish him for so doing. But no facts are here disclosed to warrant the interference prayed for by this rule:" Id.

Gurney, B., said: "I concur, but I do not say that if an attorney conducted himself so as to procure his client to discharge him, a court would not restrain him from acting for the opposite party, and consider his discharge to have been in truth his own act; but in the present case the plaintiffs have not shown in their affidavits that Mr. Jay was acquainted with any confidential communication made by them, the acting on which by Mr. Jay for the defendant, or the disclosure of it by him to the defendant, might prejudice them in the action :" Id.

The case manifestly was ruled as it was for want of evidence. It was assumed that it was incumbent on plaintiffs to show that the attorney, Jay, had received confidential information from them, which it would be to their prejudice that Jay should disclose or use. Bayley, B., said that this must appear by the affidavits made by the clients. Bolland, B., agreed with Bayley, B., " and for the same reasons."

Nothing was assumed or presumed as to Jay's acquiring any knowledge of the case from the fact that Jay was employed by the plaintiffs in the cause, and that his bill of costs showed that he had delivered the issue, made two copies of the pleadings, given notice of trial, and had taken the opinion of counsel on all the facts of the case. As to the case submitted to counsel for an opinion Bayley, B., laid it out of consideration because the affidavits did not state that the case contained facts necessary to be kept from defendant's knowledge, in order to prevent injury from accruing to plaintiffs by the disclosure, and this though the affidavits of the then attorney and clerk stated that Jay had taken the opinion of counsel on all the facts of the case The opinion seems to have been placed to some extent on Bricheno v. Thorp, which was a case where it was averred in a general way that the solicitor ought to be restrained, because, while clerk, he had acquired knowledge of confidential matters which it would be injurious to the plaintiff's to be disclosed. This circumstance is relied on by Lord Eldon in his judgment, and for that reason he required the particular facts to be pointed out to him (not publicly) of which the solicitor had acquired knowledge while clerk, and this manifestly for the reason that a clerk does not always become possessed of the facts confidentially communicated by a client to his employer. This is otherwise of a solicitor or attorney, with whom the client always confers. Bayley and Bolland, barons, both state that Lord Eldon, in Cholmondeley v. Clinton, seemed to be of opinion that if Montriou had been discharged by Lord Clinton he could have been employed by the plaintiff. We do not think anything said in the opinion by Lord Eldon justifies such a conclusion. He expressly declined to decide the point--merely mentioned it among the facts of the case, that Montriou

did not occupy the position of a solicitor discharged by his client; and in Bricheno v. Thorp, in referring to the case of Cholmondeley v. Clinton, Lord Eldon said: "If Lord Clinton had discharged the gentleman, and would not continue to employ him, on such a case no opinion was given:" Jacob, 303. In the report of Cholmondeley v. Clinton, Cooper, 88, he asks this question: "But even if an attorney is discharged, can it be that his having been so discharged by one party shall be the very reason why the other party shall employ him ?"—but does not decide it. The points determined in the Cholmondeley case have been stated above, and are, we think, stated accurately.

We do not see that Jackson v. State, 21 Tex. 668, has any application to this case. The portion of the opinion in that case referred to and quoted in the brief of counsel has only reference to the special verdict in the case and its insufficiencies.

The cases above cited do not hold that an attorney or solicitor, when discharged by his client, though he may be employed by his adversary, can make use of the secrets in relation to the cause obtained from his former client. On the contrary, we understand the cases to hold that a court would restrain an attorney or solicitor from such conduct, and if he could not be otherwise restrained, it would punish such betrayal of confidence by striking him from the roll. In Johnson v. Marriott the court refused to act from lack of evidence. If the evidence had been sufficient, would not the defendant have been restrained? We are of opinion that the court in that case would have restrained him, even when he had been unjustly discharged, and he was allowed, as contended, to be employed by the adversary party.

The law secures to the client the privilege of objecting at all times and forever to an attorney, solicitor, or counsel, from disclosing information in a cause confidentially given while the relation exists. The client alone can release the attorney, solicitor, or counsel, from this obligation. The latter cannot discharge himself from the duty imposed on him by law: Wilson v. Rastall, 4 T. R. 753; Vaillant v. Dodermead, 2 Atk. 524; Sanford v. Remington, 2 Ves. jun. 189, note. The cases cited on the other side are Wilson v. State, 16 Ind. 392; Price v. R. R. Co., 18 Id. 137; Herrick v. Catley, 1 Daly, 512; White v. Haffaker, 27 Ill. 349; Gaulden v. State, 11 Ga. 47; Valentine v. Stewart, 15 Cal. 387-401; People v. Spencer, 61 Id. 128.

In the Indiana cases, the attorney became acquainted with the facts of the case while acting as such, and it was held that he should not be allowed to change sides, and after having acted for one party in a suit, to act for his adversary. In both cases the judgment was reversed on the ground above indicated. One of these cases was a civil action; the the other criminal. In the case in 16 Indiana, the defendant objected to the attorney's (Mr. Flagg) assisting in the prosecution of the case, and filed his affidavit stating in substance that "he had employed Flagg to defend him against said charge, executed to him his notes for two hundred and fifty dollars, and disclosed to him the facts in the case, and the evidence for his defense;" that after the return of the

indictment, Flagg had informed him that he would not act further as his attorney, and had delivered up his notes.

Flagg stated by affidavit that he had been desired by defendant to act as his counsel, who stated to affiant that the prosecuting witness and her husband did not desire his services, and on that ground he consented to act; but having subsequently learned that said persons had desired and did then desire his services, and had sent word to him to that effect, be declined to act for defendant, "and returned to him the notes he had received from him for services; that he has received no compensation from defendant and has not, to his knowledge, learned anything from defendant as to his grounds or means of defense."

The objection of defendant was overruled, and Flagg was permitted to assist and did assist in the prosecution.

The supreme court observed as follows: "In searching for the reason upon which a conclusion rests, we are often led to consider the results which might flow from the maintenance of an adverse conclusion. For instance, in the case at bar, if the ruling of the court below, and the conduct of Mr. Flagg as an attorney and officer of that court, should be sanctioned as legal, we are constrained to believe that the positive tendency of such ruling would be to defeat the very purpose for which the court was organized, namely, the administration of justice; and if indulged and continued in courts, and the officers thereof, will necessarily result in sapping the foundations of the temple of justice. With what confidence could one, arraigned upon a charge of crime, confer with his attorney, or reveal to him his evidence, and thereby prepare for his defense, if that officer is permitted, after thus acquiring such knowledge, to change their relative positions, and instead of standing up as his defender, to stand forth as his accuser. Would he not consider it better to stand mute, dumb, as the sheep before the shearer, rather than disclose the evidence which might thus be turned against him? He might, perhaps, truthfully, believe it more to his interest to return to the practice of a semi-barbarous age, when the prisoner was not heard in his defense by counsel, or witnesses in his behalf, than thus to have the weapons of his defense turned against him by those in whom, by the acknowleged law and the statute, he had a right to confide:" 16 Ind. 395.

In the case in 18 Indiana, the question is stated and decided as follows:

"The next question is upon the refusal of the court to exclude James M. Flagg, esq., from acting as attorney for the plaintiff in the suit, the one then pending being the second trial of the cause.

This cause, as we have seen, was commenced in 1855, and was first tried below in 1856. It came to the supreme court, where the judgment below was reversed, and the cause remanded for another trial. The second trial, from which record the pending appeal was taken, was had in 1860. On the first trial, Mr. Flagg acted as attorney for the defendant, under the following circumstances:

"Mr. Price, the defendant, had employed Mr. Ellison, to whom alone

he was willing, it seems, to trust his cause; but other persons interested in the question employed Mr. Flagg to act as associate counsel with Mr. Ellison, for Mr. Price, in his defense. Mr. Price accepted the services of Mr. Flagg upon these terms, treated him as his attorney, consulted with him fully upon his defense, and Mr. Flagg participated, on the trial, in the examination of the witnesses and the argument of the cause. Beyond doubt, in this state of facts, he is to be regarded as having been the attorney of Mr. Price, equally as though he had been feed by him. How he came to take a fee from the plaintiff on the second trial does not appear. And now the question arises, Can an attorney accept fees on both sides of the same cause? for, though the trials were different, the cause was still the same.

"On this point there is but one opinion. Says Professor Sharswood, in his Legal Ethics: 'The criminal and disgraceful offense of taking fees of two adversaries ought, like paricide in the Athenian law, to be passed over in silence in a code of professional ethics.' 'A pleader is suspendable when he is attainted to have received fees of two adversaries in one cause:' Mirrour of Justices, c. 2, sec. 5.

"Where an attorney has, in the course of other business or in conducting other suits, obtained a knowledge of matters connected with the suit in question, courts will not in general, simply on the fact of such knowledge, restrain an attorney from acting against the party through whose business he obtained such knowledge, especially where such party does not desire his services. But he is never allowed to change sides in the same suit: 1 Monell's Pr. 182. See also Wilson v. State, 16 Ind. 192; Henry v. Raiman, 25 Pa. St. 354. And see 1 Selwyn's Nisi Prius, 7th Am. ed., 165, for a large collection of cases relative to attorneys at law:" 18 Ind. 140, 141.

In the case from 1 Daly, it is held that an attorney cannot serve professionally both parties to a controversy, and where he has been retained by one, he cannot recover for professional services rendered in the same matter to the other. The court made these remarks in the case: "While the relation of attorney and client continued between the plaintiff and the defendant's wife, he could not enter into an agreement to act also as the attorney of the husband in a matter so directly connected with the subject of his employment as that of effecting a reconciliation and settling the matter in difficulty between them. He had been employed by the wife to procure a separation, and could not therefore engage to act for the husband as his attorney in preventing it. In other words, he could not act on both sides. An attorney, said Chief Justice Hobart, oweth to his client fidelity, secrecy, diligence and skill, and cannot take a reward on the other side: Yardly v. Ellili, Hob. 8 a; Tomlin's Dict., tit. Attorney; and in Shirev. King, Yelv. 32, King v. Shore, Cro. Eliz. 914, it was held that he cannot deal upon both sides except as an arbitrator: 1 Daly, 514.

In White v. Haffaker, 27 Ill., it was held that a solicitor in a case cannot act as a special master to execute the decree. See remarks of court as to relation of client and attorney on p. 351, 27 Illinois.

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