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125 N.J.L.J. 870
April 5, 1990
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the Supreme Court of New Jersey
Reporting Professional Misconduct -
Disclosure of Information Obtained
from Attorney/Client During Course
of Representation in Malpractice Action
This inquiry concerns an attorney's duty to divulge
information learned in the course of representing another attorney
in a matter concerning the latter's conduct as an attorney. That
conduct, says the Inquirer, would raise a substantial question as
to the attorney's honesty, trustworthiness, or fitness as a lawyer.
The duty to report such an attorney's conduct is imposed by
RPC 8.3. The question posed is whether the attorney-client
privilege, well established in common law and incorporated in the
Rules of Professional Conduct in RPC 1.6, negates this duty to
An initial reading of these Rules of Professional Conduct
suggests that the attorney-client privilege does prevail and that
there is no duty to disclose. RPC 8.3(c) states that disclosure is
not required if the information is protected by the privilege as
set forth in RPC 1.6. The real and more difficult question is
whether the subject conduct falls within one of the exceptions set
forth in RPC 1.6, in which event disclosure is either optional or
In Opinion 116, 90 N.J.L.J. 688 (1967), we pointed out that
the principle of privileged communication between attorney and
client, though a cherished element of common law, is subject to
limitations. The privilege would not apply, we observed, in
criminal cases involving continuing crimes, or crimes about to be
committed, citing Drinker, Legal Ethics (1953) 138, for the
distinction to be observed between confidences given to an attorney
after the completion of a crime and those relating to crimes not
yet completed. See also In re Selser, 15 N.J. 393 (1954) (where a
client consults an attorney respecting the client's commission of
a continuing or prospective crime, the attorney-client privilege
does not exist, whether or not the attorney is aware of his
Moreover, we concluded in Opinion 227, 95 N.J.L.J. 65 (1972)
that there is a duty to report a communication of a fraud worked
both upon another party and the court, where the attorney receiving
the information had been the unwitting instrument of the fraud. In
a previous matter during which he had been represented by the same
attorney, the client had obtained a civil judgment utilizing
perjured testimony, and subsequently revealed that fact in a
consultation with the attorney. We stressed that the lawyer must in
such situation divulge the information, given that substantial
injury to a third party would continue, and also that the attorney
and the court had been the instruments of the fraud.
These guidelines for the most part reflect the exceptions to
the protection of privileged communications set forth in RPC 1.6.
That rule states that an attorney shall not disclose information
relating to representation, unless the attorney believes reporting
is necessary to "prevent the client from committing a criminal,
illegal or fraudulent act ... or one that is ... likely to
perpetrate a fraud upon the tribunal."
We assume in the present inquiry that the acts of dishonesty,
untrustworthiness or unfitness of the attorney-client are not
continuing, and that the lawyer's services are not being used in
furtherance of these activities. Were either of these elements
present, there would be a clear obligation to divulge the
information. This is indicated not only in our opinions, such as
Opinions 116, supra, 90 N.J.L.J. 688, and 227, supra, 95 N.J.L.J.
65, but in the cases considered by our Supreme Court.
Thus, in Fellerman v. Bradley, 99 N.J. 493 (1985), in an
opinion by Justice Handler, the Court ruled that an attorney has a
duty to disclose information about his client's whereabouts, when
the information is sought in connection with the enforcement of an
order in a domestic relations action. The Court concluded that to
allow the assertion of the attorney-client privilege would amount
to allowing a continued fraud to be worked upon the court through
the attorney's representation. There is a "crime or fraud"
exception to the privilege, said the Court, encompassing those
situations where "a client seeks the aid of an attorney for the
purpose of committing a fraud, a communication in furtherance of
that [fraud]." Id. at 503.See footnote 1
Yet, in Matter of Nackson, 114 N.J.
527 (1989), the Court held that information of a client's
whereabouts, given to the lawyer after he forfeited bail, did not
have to be disclosed because the client's action was not a
continuing crime for purposes of constituting an exception to
privileged matter. Id. at 537. The Court distinguished its decision
in Fellerman v. Bradley, supra, 99 N.J. 493, pointing out that in
the matter currently before it the communication was made in an
attempt at plea-bargaining. This, said the Court, was arguably an
attempt to end the criminal violation, not to perpetrate or
continue it. Matter of Nackson, supra, 114 N.J. at 536.
Assuming that the acts divulged do not continue, and do not
make use of the legal representation to carry them out, is there
any other aspect of exception to the principle of privileged
communication which requires divulgence? We believe not, unless
the term "fraud upon the Court" is interpreted so broadly as to
encompass even knowledge that the attorney-client had in the past
committed an act which if divulged to the court would result in
discipline or other punitive action.
Clearly, attorney acts of dishonesty or untrustworthiness are
themselves frauds upon the court. In re Wilson, 81 N.J. 451 (1979);
Fellerman v. Bradley, supra, 99 N.J. 493; In re Noonan, 102 N.J.
157 (1986); Matter of Sommers, 114 N.J. 209 (1989). Nevertheless,
RPC 8.3(c), acknowledging the principle of privileged
communication, recognizes that mere knowledge of an attorney's
unprofessional acts, gained in the course of representation,
without further exacerbating factors, carries no obligation to
reveal such information.
* * *
Footnote: 1 1
The conduct in Fellerman occurred prior to September 10, 1984, the
effective date of the Rules of Professional Conduct. Consequently,
the relevant disciplinary rule was DR 4-101 which provides in
(B) Except as permitted by DR 4-101(C), a lawyer shall not
(1) Reveal a confidence or secret of his
(2) Use a confidence or secret of his client to the
disadvantage of the client.
(3) Use a confidence or secret of his client for the
advantage of himself or a third person, unless the
client consents after full disclosure.
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent of the
client or clients affected, but only after a full
disclosure to them.
(2) Confidences or secrets when permitted under
Disciplinary Rules or required by law or court
(3) The intention of his client to commit a crime and
the information necessary to prevent the crime.
(4) Confidences or secrets necessary to establish or
collect his fee or to defend himself or his
employees or associates against an accusation of
(D) A lawyer shall exercise reasonable care to prevent his
employee, associates, and others whose services are
utilized by him from disclosing or using confidences or
secrets of a client, except that a lawyer may reveal the
information allowed by DR 4-101(C) through an employee.
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