Rutgers School of Law, OAL case acp414

103 N.J.L.J. 17
January 11, 1979

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 414

Municipal Special Attorney
Naming Ordinance-Violating Clients

The inquirer has been appointed special attorney for a municipality which, under a local ordinance, has a code of ethics. The ordinance requires that a questionnaire must be answered by certain officials and employees. It will then be filed as a public document in the municipal clerk's office. This inquiry concerns part of one question which requires disclosure of the names of those clients of the attorney who have conducted business within the municipality during the prior three years. We are asked if it would be ethical to comply.
DR 4-101 concerning preservation of confidences and secrets of a client states that if disclosure of such information would be embarrassing or detrimental to a client who has requested that it be held in confidence a lawyer shall not reveal the confidence or secret except with the consent of the client or when permitted under disciplinary rules or required by law or court order. The inquirer clearly states that such disclosure would be not only embarrassing but also detrimental to some of the clients who are doing business within the municipality without complying with zoning ordinances, since to do so would probably subject them to investigation and possible criminal prosecution.

    Our Supreme Court has held, in accord with the general rule, that disclosure of the name of a client is not a confidence which falls within the attorney client privilege. State v. Toscano, 13 N.J. 418 (1953); In re Richardson, 31 N.J. 391 ( 1960). It has been held, however, in other jurisdictions that under certain peculiar conditions disclosure of the identity of a client may be withheld by an attorney where there is found to be an attorney- client relationship.
    Recently the Appellate Division, in In re Kozlov, 156 N.J. Super. 316 (App Div 1978), while holding that no attorney-client relationship existed in the matter before the court, did make note that there are precedents for carving out exceptions to the general rule. The court stated:
        We recognize that courts of our sister states and the federal courts have occasionally recognized, in particular circumstances, exceptions to the general rule that identity is not within the privilege. See, e.g N.L.R.B. v. Harvey, 349 F.2d 9O0 (4th Cir. 1960); Baird v. Koerner, 279 F.2d 623 (9th Cir 1960); In re Kaplan, 8 N.Y. 2d 214, 203 N.Y.S. 2d 836, 168 N.E.2d 660 (Ct. App 1960). And see cases collected in Annotation, supra [16 A.L.R. 3d 1047 (1967)]. Our review of this case authority persuades us that it deals exclusively with those exceptional circumstances in which revelation of the client's identity would be tantamount to revelation of an as yet undisposed privileged communication itself or where a balancing of the underlying purpose of the privilege against the principle of disclosure weighs heavily in favor of the privilege. Id. at 322.

    The inquirer states that he should not be required to disclose the names of clients doing business within the municipality because they are not in compliance with zoning ordinances and such matters are privileged communications. Here the inquirer is cooperating with clients who, by fraudulent concealment, are violating ordinances promulgated for the benefit of all the citizens of the community. Our Supreme Court has held that the privilege does not exist where a client consults the attorney in reference to a future fraudulent transaction. In re Selser, 15 N.J. 393 (1964). We are of the opinion that the alleged privilege does not exist under the circumstances presented here.

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