Rutgers School of Law, OAL case ACPE365

100 N.J.L.J. 281
April 7, 1977

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 365

Revealing Client's
Confidences in Action for Fees

    The Committee is asked whether an attorney in an action for the value of his services may use an admission made by a client in the presence of an impartial witness that the client had committed perjury, both in a deposition and in giving testimony, and that he had misstated the facts to the attorney.
    The client had induced the attorney to undertake an action on his behalf for the return of a deposit on real estate on a contingent basis with a small retainer by misrepresenting the truth of an essential element of his case, the subject matter of the perjured testimony. After the adverse decision following trial the client, in the presence of an impartial witness, admitted the perjury in deposition and at trial and, also, admitted the misrepresentations to his attorney in the original presentation. The attorney claims that he was damaged because, in reliance upon
the misrepresentation, he undertook to perform valuable services on a contingency far in excess of what would have been necessary had the client's statement and testimony been true.
    In DR 4-101(C) it is provided:
        "A lawyer may reveal: ...

        (4)    Confidences or secrets necessary to establish or collect his fee."

    While an attorney should make every effort to avoid suing a client, when such a course becomes necessary, the attorney may properly use information acquired from the client in the course of his professional employment in order to establish the merits of his action. ABA Comm. on Professional Ethics and Grievances, Opinion 250 (1943).
    In this inquiry, if the attorney has a proper claim, we are of the opinion that he may offer the testimony of the client's admissions of perjury and of misrepresenting to the attorney the facts on which the attorney relied in accepting the case. See our Opinion 227, 95 N.J.L.J. 65 (1972).

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