92 N.J.L.J. 97
February 13, 1969
Correspond with Client
A lawyer who represented a creditor of a bankrupt estate in
which a distribution of the assets was made several years ago, had
been asked by an attorney, who represented interests adverse to his
client in the bankrupt estate, for copies of correspondence between
him and his client in the bankruptcy matter. He wrote to his client
informing him of the request and asking if he would consent to it.
He also informed the client that the attorney intends to serve him
(the client's attorney) with a subpoena duces tecum to produce the
letters if he does not comply with the request. The inquirer poses
the following questions which we quote verbatim:
In the event the client fails to respond to our letter, is it a breach of ethics to turn over copies of such correspondence without the issuance of a subpoena? May we treat the client's silence as consent? If the client directs us not to turn over copies of the letters, is it a breach of ethics to produce the letters under the subpoena and either to testify as to their contents or submit them for examination or copying? If directed by the presiding officer at a deposition hearing to produce and turn over the letters, are we required under the Canons of Ethics to exhaust appellate procedures before complying? If the attorney, upon our refusal obtains an oral instruction or written order from the Referee in Bankruptcy or from a District Court Judge, requiring us to testify as above indicated or to submit the letters for inspection or copying, are we either permitted or obliged to comply or must we first exhaust appellate procedures?
116, 90 N.J.L.J. 688 (1967), we said:
The late Chief Justice Vanderbilt in In
re Selser, 15 N.J. 393 (1954), traced the
history of privileged communication between
attorney and client, recognizing that this
privilege is part of our common law. The
principle was enunciated to promote freedom of
consultation between an attorney and his
To adequately protect a client's interests, an attorney should know all the relevant facts. If the client's confidences are not protected the client will have a tendency to withhold facts which may be detrimental to his cause. Thus these communications from attorney to client become privileged.
The conclusion which we have reached is that the attorney client privilege is an important right to be safeguarded.
Opinion 312 of the Community on Professional Ethics of the Association of the Bar, City of N.Y., concerned an attorney who had in his possession correspondence and documents received from a client. The question to be determined was whether the attorney, with professional propriety, could deliver the original documents to the authorities in another jurisdiction pursuant to their demand without the consent of his client. The Committee was of the opinion that before a lawyer disclosed such confidential information he should assert that it was received in confidence and then abide the determination of the tribunal to which the solution of the question was submitted by the statute.
In In re Selser, supra, the court said (at page 41)4):
Since the protection of the privileged communication is not for the attorney but rather for the client, not only may the client alone waive the privilege, ... but the attorney if called as a witness must assert the privilege where applicable, unless it has been waived by the client, Canons of Professional Ethics, 37; 58 Am. Jur. 259. The final determination of the existence of the privilege, however, rests with the court, and if it determines that the privilege does not exist then the attorney must testify as to the matters contained in the communication. State v. Tuscany, supra, 13 N.J. 418, 424 (1953).
In the light of the foregoing we are of the opinion that if the client fails to respond to the attorney's letter his silence cannot be construed as consent and it would be improper to turn over copies of the correspondence with or without a subpoena. Absent a court order, it would also, in our opinion, be a breach of ethics to produce the letters under the subpoena and either testify
to their contents or submit them for examination or copying without the client's consent and particularly if the client directs the attorney not to turn over copies of the letters.
The lawyer-client privilege should be asserted by the attorney until overruled by a court with jurisdiction to determine the issue. The necessity of taking appellate procedures involves a question of law which we should not attempt to decide. This must be determined by the attorney by a prudent and reasonable interpretation of the applicable law, bearing in mind that he must defend the privilege to the best of his ability. As stated in Canon 15 he owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability."