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                                        92 N.J.L.J. 97
                                        February 13, 1969

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 145

Privileged Communication
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?

    The Canons of Professional Ethics, Canon 37 imposes a duty on a lawyer "to preserve his client's confidences, pointing out that "[t]his duty outlasts the lawyer's employment... ." The confidential relationship between attorney and client precludes an attorney from divulging information obtained from his client, during the relationship, without the client's consent. This lawyer- client privilege is an ancient one. It has been recognized in New Jersey as part of our common law and became part of our statutory
law in 1960 (N.J.S. 2A:84A-20). The statute provides that, in general, communications between a lawyer and his client are privileged and a client has a right "(a) to refuse to disclose any
such communications and (b) to prevent his lawyer from disclosing it, and (c) to prevent any other witness from disclosing such communication ...." The statute imposes a duty upon a lawyer to claim the privilege "unless otherwise instructed by the client or his representative." There are certain exceptions to the general rule set forth in the statute, none of which are applicable here.
    The foregoing statute was considered in the case of Metalsalts Corp. v. Weiss, 76 N.J. Super. 291 (Ch. Div. 1982), where the attorney involved appeared for oral examination by deposition pursuant to pretrial discovery proceedings and refused to answer questions on the ground that he was bound by the attorney-client privilege and could not divulge communications had with his client without the latter's consent. Although the court found that the attorney had not been employed as a lawyer but as an officer of a
corporate entity and therefore, the attorney-client privilege did not exist, the opinion stated (at page 296):
            It is a long established rule of the common law, embodied in New Jersey by statute, N.J.S. 2A:84A-20, that an attorney is not permitted and cannot be compelled to testify as to communications made to him in his professional character by his client, unless his client consents. The rule is based upon the grounds of public policy, and must be enforced by the courts, unless its enforcement is waived by the client... .

    In our N.J. Advisory Committee on Professional Ethics, Opinion

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 client.

            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."

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