86 N.J.L.J. 713
December 19, 1963
Substitution Of Attorney
A client employed a lawyer to represent him in the collection
of a number of accounts receivable. Suits to collect were
instituted in the name of a close member of the client's family,
who as also a business associate, as assignee. The assignment of
the claims was without consideration and made only for the
convenience of the assignor with a view to the institution of suits
in the name of the assignee instead of in the name of the assignor.
Many claims were reduced to judgment, and all judgments and
collections were considered the property of the assignor.
The lawyer, who no longer represents the assignor, has received a request from another lawyer, who represents the assignee, for information as to certain of the various suits, judgments and collections. The former lawyer for the assignee has not advised the assignor of such request, nor obtained his consent to the furnishing of the requested information.
Following this initial request, the former lawyer for the assignee received a further request from another lawyer representing the assignee in one of the collection matters which apparently had not been referred by the assignee to his first attorney, indicating that the assignee had been served as a defendant in a foreclosure suit against the property of the defendant in the original collection suit and requesting a substitution of attorney.
The former attorney for the assignor wishes to know whether, under the circumstances, the furnishing of the requested information and the giving of the requested substitution of attorney are ethically proper.
Confidential communications between an attorney and his client, made because of the relationship and concerning the subject-matter of the attorney's employment, are generally privileged from disclosure without the consent of the client, and this privilege outlasts the attorney's employment. A.B.A. Model Code of Professional Responsibility Canon 37; A.B.A. Committee on Professional Ethics and Grievances, Opinion 154 (1957); Drinker, Legal Ethics 131 (1953). The rule applies only where the communications by the client were made under circumstances clearly indicating that they were intended to be confidential. Drinker, Legal Ethics 135 (1953). Nevertheless a communication must be regarded as confidential where it possibly is so, although it is not entirely clear that the relations exist. Id. at 134.
It does not appear here whether the information requested by the assignee's first attorney involves confidential Communications between the assignor and his former attorney or was acquired by the attorney in confidence. Since his representation of the assignor in a variety of collection matters may well have involved confidential communications, it would not be ethically proper for him to comply with the request of the assignee's attorney without
informing the assignor of such request and obtaining his consent to comply with the request, unless, of course, it became clear that compliance with the request did not involve violation of the rule prohibiting the disclosure of confidential communications.
Should it become impossible to advise the assignor of the request or to obtain his consent, his former attorney would still not be justified in complying with the request unless it was clear
that compliance with the request did not involve violation of the rule prohibiting the disclosure of confidential communications and he ascertained and was satisfied that there was good cause for the request. As to the giving of the requested substitution of attorney to the assignee's second attorney, since the assignee had no beneficial interest in the assignment and was acting as such only for the accommodation of the assignor, it is not ethically proper for the assignor's former attorney to give the requested substitution of attorney without the knowledge and consent of the assignor. See A.B.A. Model Code of Professional Responsibility Canons 7 and 22; A.B.A. Committee on Professional Ethics and Grievances, Opinions 10, 149 and 209 (1957).