117 N.J.L.J. 533
April 24, 1986
Attorney-Client Confidentiality -
Disclosure of Fraud to Former Client
Which May Affect Innocent Current Client
The operative facts provided in this inquiry are as follows:
Attorney A represented a "Wife" in a matrimonial matter. The
"Wife" throughout the divorce proceeding contended that her
"Husband" was secreting assets. Discovery failed to turn up any
assets not disclosed in discovery. Thereafter, a settlement which
included the issue of equitable distribution was consummated. A
Judgement was entered incorporating the agreement between the
parties. Some two years thereafter, A was retained by "Purchaser"
to represent him in the acquisition of real estate. The parcel was
the same as that which "Husband" and "Wife" had sold as part of the
divorce settlement. "Purchaser" advised A that a secret, unrecorded
mortgage in the amount of $70,000 obtained by the "Husband" at the
time of the sale, and not disclosed to the "Wife", would be assumed
by him. A notified "Purchaser" that under the circumstances he
could not continue as counsel.
Inquirer asks whether he now has an obligation to notify his former client, "Wife", since there is a possibility that the transaction might be jeopardized by such disclosure.
The question which must be resolved is whether the revelation of the fact of the undisclosed mortgage by purchaser to A falls within the attorney-client privilege and, therefore, is confidential.
In the recent case of Fellerman v. Bradley, 99 N.J. 493 (1985), the Court discussed the issues with which the Committee is confronted. Justice Handler, writing for the Court, recognized the statutory and evidentiary basis for the attorney-client privilege. (See N.J.S.A. 2A:84A-20 and Evidence Rule 26). While the privilege is deemed indispensable in providing effective legal representation, it is not absolute. Public policy and concern for an unstinting effort to search for the truth have led to several exceptions to the privilege. Fellerman, supra, at pp. 502, 503. The exception which must here be considered is found in Evidence Rule 26(2)(a). That Rule provides that "[The] privilege shall 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..." In discussing this section of the Rule, the Court in Fellerman, supra, said at p. 503:
The 'crime or fraud' exception to the privilege represents a statutory recognition of a situation in which the purpose of the privilege would not be served by its enforcement. This exception encompasses a type of communication that is alien to the fundamental reasons that underline the privilege.
Thus, the Courts have liberally construed the word "fraud" in these situations and have expanded the term beyond traditional criminal law or tort definitions. This broad interpretation reflects itself in its application where the attempt is made to perpetrate a "fraud on the Court". The Courts have held that the privilege cannot be used to interfere with the proper administration of justice; it cannot be used to frustrate the fundamental efforts of a search for truth and dispensation of fair and just results. See Fellerman v. Bradley, supra, and cases cited therein.
In considering the issue presented, cognizance must also be taken of the Rules of Professional Conduct. RPC 1.6 provides the standard of conduct for lawyers receiving confidential information. Exclusions to the confidentiality requirement as related to this case are found in RPC 1.6:
(b) A lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client
(1) from committing a...fraudulent act that the lawyer believes is likely to result in...substantial injury to the financial interest or property of another;
(2) from committing a...fraudulent act that that lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal...
(c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to rectify the consequences of a client's ...fraudulent act in the furtherance of which the lawyer's services had been used....
It may be argued that RPC 1.6(c)(1) does not apply in this situation, first, because A's client did not commit a fraudulent act, and, second, because A's services had not been used in furtherance of the act. Further, from a literal reading of RPC 1.6(b)(1) and (2) one may conclude that they do not apply because here A's client is neither "committing" a fraudulent act nor perpetrating a fraud upon a tribunal.
However, this Committee cannot agree with the analyses set forth above. The Court in Fellerman v. Bradley, supra, enjoins us to construe the concept of fraud broadly and to go beyond the criminal law or tort definitions. Also, we are not unmindful of the inherent obligation which a lawyer has to prevent a continuance of a wrong which may have occurred, and to participate in its continuance. A failure to disclose obviously would result in what may be termed a continuing fraud on the Court, or a continuing conspiracy by which a fraud remains uncovered. A certainly should not participate in that "silent conspiracy".
We, therefore, hold that the exceptions contained in Evidence Rule 26(2)(a) and RPC 1:6(b)(1) and (2) construed together with the law set forth in Fellerman, supra and other cases cited therein require A to notify the Court and "Wife" of the facts he has uncovered. In short, the exceptions to the Contention of Privilege apply.