Rutgers School of Law, OAL case ACPE638

125 N.J.L.J. 870
April 5, 1990

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 638

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 report.
    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 compulsory.

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 client's purpose).
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 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.

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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 pertinent part:
        (B)    Except as permitted by DR 4-101(C), a lawyer shall not knowingly:
            (1)    Reveal a confidence or secret of his
                client.
            (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 order.
            (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 wrongful conduct.
        (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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