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                                        90 N.J.L.J. 688
                                        October 19, 1967


Appointed by the New Jersey Supreme Court


Privileged Communications
Criminal Cases

    There has been presented to this Committee the following

question for consideration:

            Assume a defendant admits to his attorney that he is guilty of a criminal charge. He is advised not to take the stand. After the State rests its case, defendant insists on testifying. Contrary to counsel's advice, he takes the stand and denies the charge.

    Query: What are the attorney's obligations? Because of his confidential relationship, the attorney cannot divulge the defendant's admission. What should the attorney do and how can he properly and ethically protect himself?
    The late Chief Justice Vanderbilt in In re Selser, 15 N.J. 393 (1954), traced the history of privileged communication between attorney and client, recognizing that this privilege is part of our common law. The principle was enunciated to promote freedom of consultation between an attorney and his client.
    However, it does result in the exclusion of evidence and a clash between the two competing policies of law - "the one calling for the full disclosure of all the facts in order that justice may prevail, the other demanding secrecy as to facts divulged by the client to his attorney in order that the client will not hesitate to make full disclosure to the attorney, who in turn can then best advise him." Id. at 401.
    The recognition of this privilege, however, as Justice Cardozo stated in Clark v. United States, 289 U.S. 1 (1933), is not without conditions or exceptions. What are these exceptions and would they have application to the query on hand?
    In In re Richardson, 31 N.J. 391 (1960), our Supreme Court held that an attorney was not entitled to refuse to disclose names of parties who paid a fee for his legal services on the ground of attorney-client privilege. In the course of its decision the Court stated (at page 401):
            Throughout their judicial endeavors courts seek truth and justice and their search is aided significantly by the fundamental principle of full disclosure. When that principle conflicts with the attorney-client privilege it must, of course, give way but only to the extent necessary to vindicate the privilege and its underlying purposes. The matter is truly one of balance and, on balance, it seems clear to us that there should be removal of the cloak of secrecy... .

    This conflict of privilege against full disclosure and the underlying policy arguments in support of both sides has long been debated in academic circles and was perhaps best presented by Jeremy Bentham in Rationale of Judicial Evidence (quoted in 8 Wigmore, Evidence, sec. 2291, p. 551):
    A rule of law which, in the case of the lawyer, gives an express license to that wilful concealment of the criminal's guilt, which would have constituted any other person as an accessory in the crime, plainly declares that the practice of knowingly engaging one's self as the hired advocate of an unjust cause, is, in the eye of the law, or (to speak intelligibly) in that of Lawmakers, an innocent, if not a virtuous practice. But for this implied declaration, the man who in this way hires himself out to do injustice or to frustrate justice with his tongue, would be viewed in exactly the same light as he who frustrates justice or does injustice with any other instrument.

    Recently the lawyer client privilege became part of our statutory law. Rule 26 of the Evidence Act, N.J.S. 2A:84A-20(2), provides that the lawyer client privilege does not "extend (a) to a communication in the course of legal service sought or obtained in aid of the commission of a crime or a fraud... ."
    There are a number of Canons of Professional Ethics which pertain to the discussion on hand. Canon 5 provides that regardless of the personal opinion of the attorney as to the guilt of the accused, it is the right of the lawyer to undertake his defense and having undertaken such defense the lawyer is bound to present every defense that the law permits. Canon 6 provides that it is the obligation of the attorney to represent the client "with undivided
fidelity and not to divulge his secrets or confidences." Canon 37 provides that it is the lawyer's duty to preserve his client's confidences.
    To adequately protect a client's interest, an attorney should know all the relevant facts. If the client's confidences are not protected, the client will have a tendency to withhold facts which may be detrimental to his cause. Thus these communications from client to attorney become privileged.
    However, the privilege is not an absolute one under all circumstances. Wise on Legal Ethics (1966) states that privileges are divided into three classes: (1) those in which a lawyer may not divulge a confidence; (2) those in which a lawyer may divulge a confidence; and (3) those in which a lawyer must reveal a confidence. A number of illustrations are cited at p. 161 et seq. where a lawyer may not divulge his confidence. Numerous A.B.A. Ethics Committee opinions are cited which illustrate the complex question arising when there is a conflict between a lawyer's duty not to reveal a cliental confidence and his duty to the court or to the public.
    In Drinker, Legal Ethics 138 (1953), a distinction is noted between the confidences given to an attorney after the completion of a crime and confidences relating to a continuing crime or to a crime to be committed.
    The doubt that arises in an attorney's mind is whether if he remains silent relying upon the doctrine of privilege, he will be perpetrating a fraud on the court. Where a client gives one set of facts to his attorney and testifies contrary to those facts at the trial, the attorney should not become the judge of the truthfulness of the conflicting statements. Otherwise the attorney becomes the judge of the truth instead of allowing the judge and jury to determine the facts.
    In A.B.A. Comm. on Professional Ethics and Grievances, Opinion 287 (1953) the question was raised as to the duty of a lawyer when he has learned that a client committed perjury in litigation conducted by him. In a careful study of the conflicts between different canons, the Committee held that the lawyer should urge his client to make disclosure and if the client does not take this advice, the lawyer should step out of the case. However, disclosure should not be made to the court or to the authorities.
    Should the attorney endeavor to withdraw from the case? A withdrawal would result in undue delay and a retrial. Under our statutes and rules it has become increasingly difficult to withdraw from a criminal case. Rule 3:10A-6(d). With the advent of the public defender system in our courts, a withdrawal by trial counsel would only result in the office of the public defender reassigning another member of its staff to represent the defendant.
    The conclusion which we have reached is that the attorney- client privilege is an important right to be safeguarded. However, this privilege is not an absolute one, and would not apply in criminal cases to continuing crimes, or crimes to be committed.
    Counsel should make no mention of a conflict between the client's statement and his sworn testimony. He should not withdraw from the case. His presentation should be on the basis of the sworn testimony of the defendant, allowing the court and jury to determine the defendant's innocence or guilt.

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