The Eavesdropper

Action for breach of promise of marriage. At trial, P called W to testify that a few days before the action was commenced, W was at the office of D's attorney. W observed D enter and through a closed door overheard a muted conversation between D and his attorney in which D said he was afraid a woman would sue him for breach of a promise of marriage. D objects to W's proposed testimony on grounds of the lawyer-client privilege. What ruling and why? See the answer of the Massachusetts Supreme Court in a venerable case.

HOY v. MORRIS

79 Mass. 519 (1859)

[A]ssuming that the interview between Mr. Todd [the attorney] and the defendant was strictly of a privileged character, and that all the communications of the latter during its continuance were made by him as a client to his counsel and professional adviser, still the testimony of the witness Aldrich was admissible, and was properly allowed to be used before the jury.

The privilege of exemption from testifying to facts actually known is extended only to an attorney or legal adviser who derives his knowledge from the communications of a client who applies and makes disclosures to him in his professional character, and to those other persons whose intervention is strictly necessary to enable the parties to communicate with each other. This is the rule which ... seems uniformly to have been recognized as a correct statement of the law upon this subject.... Applying this rule to the facts in the present case, the conclusion is inevitable that the statement of [defendant] to his counsel Mr. Todd was overheard and became known to Aldrich under circumstances which entitled the plaintiff to the benefit of his testimony concerning it. Aldrich was not an attorney, nor in any way connected with Mr. Todd; and certainly in no situation where he was either necessary or useful to the parties to enable them to understand each other. On the contrary, he was a mere bystander, and casually overheard conversation not addressed to him nor intended for his ear, but which the client and attorney meant to have respected as private and confidential. Mr. Todd could not lawfully have revealed it. But, in consequence of a want of proper precaution, the communications between him and his client were overheard by a mere stranger. As the latter stood in no relation of confidence to either of the parties, he was clearly not within the rule of exemption from giving testimony; and he might therefore, when summoned as a witness, be compelled to testify to what he overheard, so far as it was pertinent to the subject matter of inquiry upon the trial; this is all that was allowed by the court.

Do you agree with the Massachusetts court? Does Hoy reflect an objective or subjective approach to the issue of the existence of the conditions necessary for the lawyer-client privilege? Which approach would you adopt? Which approach does the proposed Federal Rule adopt?