Response or Comment
This procedure was justified in the opinion in State v. Snook (Court of Errors and "Appeals of N. J., 1920), 109 Atl. 289. Snook was on trial for manslaughter charged as having been committed by the reckless driving of an automobile. After the act, Mimmick, one of the persons in the automobile, and afterward a witness for the defense, went to an attorney and had some conversation with him, the substance of which, as testified to by the attorney, was a recital by M. of what had occurred and an inquiry by him of the attorney as to what he should do. In answer, he was advised to go to the police station and tell a truthful story, and told that he did not need an attorney. M. offered to pay him, but was told that there was no charge. The attorney further testified that he did not consider himself as retained. The trial court held that the relation of attorney and client did not exist, and that even if it did M. was the only person who could assert the privilege growing out of it. The Supreme Court, where the case was next heard, held that the question of whether the relation existed was one of fact and for the jury. The Court of Errors and Appeal held that whether it was a pure question of fact or a mixed question of law and fact, it was the sole province of the court, as distinguished from the jury, finally to decide it. This court further held that the undisputed evidence showed the relation to exist.
Lane, Victor H. "Privileged Communication between Attorney and Client-Question of Whether the Relation Exists Left to Jury-Party Allowed to Assign Error on Ruling Violating the Privilege." Mich. L. Rev. 18 (1920): 781-4.