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                                        N.J.L. 252
                                        February 7, 1994

                                        136 N.J.L.J. 498
                                        February 7, 1994


Appointed by the Supreme Court of New Jersey


Privileged Communications: Disclosure
of Former Client's or Witness' Confidences
to Prevent Criminal, Illegal or Fraudulent
Act Attorney Reasonably Believes is Likely
to Perpetrate a Fraud Upon the Tribunal

    This inquiry presents, once again, the thorny question raised by the friction arising between the need and, indeed, the constitutional mandate in a criminal or quasi-criminal case for full and frank communication between the lawyer and client, and society's objective to enforce the criminal laws of the state. We have said before that the issue is not a simple one and that a balancing of interests may be necessary. See e.g. Opinion 642, 125 N.J.L.J. 1097 (1990) and Opinion 643, 125 N.J.L.J. 1358 (1990). The postulate here presents the same issue as in those opinions.
    Counsel was retained to represent a client charged with driving while under the influence (DWI). At the first interview the client confided that, prior to his apprehension after a motor vehicle accident, he had been to several locations and drank at least seven alcoholic drinks. At the hospital, after the accident, he told the investigating officer that he had only consumed three "screwdrivers." A blood-alcohol analysis of blood taken from him showed a reading significantly higher than that required for conviction.
    In the vehicle at the time of the accident was a friend of the client who, counsel was told, was with him for portions of the evening only. Counsel spoke with the witness who confided that he was not with the client the entire evening. Shortly thereafter, the client informed his lawyer that he would testify that he had consumed only three drinks during the evening and that his friend would verify that he was present with the client the entire evening and would confirm the extent of alcoholic intake as being three drinks.
    At that point counsel advised against the course of action and, further, that he could not participate in presenting the case as his client desired. Within three days the client retained another lawyer and the existing relationship was terminated.
    Sometime later counsel saw a newspaper account which indicated that the friend had testified that he had accompanied the former client at all times during the evening in question. The newspaper story also reported that testimony showed that the former client had consumed only three drinks during the entire evening.
    Counsel asks:
    1. Does he have an obligation to advise the court that his former client's friend may have perjured himself?
    2. If the former client takes the stand and "lies," must he advise the court? (Subsumed in this question is the issue of whether he has the obligation to determine what will occur or has occurred.)
    In Opinion 642, supra, 125 N.J.L.J. 1097, we said:
    The statutory and evidentiary basis for the attorney-client privilege is set out in Evid. R. 26, N.J.S.A. 2A:84A-20. The foundation of the privilege is grounded in the need for full and frank communication between lawyer and client. A rule requiring disclosure serves to destroy the element of trust necessary for a lawyer to adequately serve his client. See Matter of Nackson, 114 N.J. 527 (1989). The privilege, however, is circumscribed by ethical considerations involving public policy, the public welfare, and the interests of all parties subject to the operation of non- disclosure. Thus, our Supreme Court has promulgated rules intended to set ethical guidelines which affect the attorney-client privilege; e.g. RPC 1.6, RPC 3.3 and RPC 3.4.

    The lawyer-client privilege, embodied in Evid. R. 26 and the confidentiality principles in RPC 1.6, is probably as old as the common law. Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). The reason for it has been expressed in many different ways which logic, basically distilled, allows a lawyer who represents a client to investigate, sift through facts, prepare and present a case without intrusion, and permit a free and untrammeled flow of information, relevant or irrelevant, material or immaterial, between lawyer and client. See annotation, Biunno, New Jersey Rules of Evidence, pp. 361-363 (1993).
    Public policy recognizes the so-called "[c]rime or fraud" exception which in some cases permits and in some cases demands the removal of the shield of the privilege. Matter of Nackson, supra, 114 N.J. at 532; Opinion 642, supra, 125 N.J.L.J. 1097. However, in a criminal setting, great weight must be given to the right to counsel provided for in both the federal and state constitutions. Matter of Nackson, supra, 114 N.J. at 531. Thus, in many situations, as we have said, "... a balancing must be done between competing interests and policies before a conclusion can be reached... ." Opinion 642, supra, 125 N.J.L.J. 1097.
    Thus, RPC 3.3(a) mandates that a lawyer shall not knowingly misstate or fail to disclose a material fact to a court or offer evidence known to be false. RPC 3.3(c) provides that if a lawyer reasonably believes that evidence is false, he may refuse to offer it. Although this rule is not operative here because the inquirer is now out of the case, it is significant to note the mandatory "shall" in subsection (a) as contrasted with the discretionary "may" in subsection (c). Apparently, the dichotomy exists because the question of reasonable belief is not always easy to ascertain and because the circumstances of each case differ. Because that is so, a lawyer should not be required to assume an absolute risk in taking the right choice of action.
    In this case, the lawyer, in effect, has withdrawn from representing the client. He would, therefore, not participate in presenting testimony which he believes to be false to a court in this quasi-criminal case. The information he received from his client was certainly received in confidence. Disclosure, therefore, is governed by RPC 1.6. In relevant part, RPC 1.6 provides:

    (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

    (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 criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another;

        (2) from committing a criminal, illegal or fraudulent act     that the lawyer reasonably believes is likely to perpetrate a fraud upon the tribunal.
        (d) Reasonable belief for the purposes of RPC 1.6 is the     belief or conclusion of a reasonable lawyer that is based upon information that has some foundation in fact and constitutes prima facie evidence of the matters referred to in subsections (b) or (c).
    (Emphasis supplied).

        Because of the important public policy reasons for the privilege and the sanctity of the attorney-client relationship, and because of the constitutional protections afforded to that relationship in cases involving the privilege against self incrimination, we believe that the exception to the rule must be narrowly construed to protect attorney-client confidentiality. It is apparent that the sections of RPC 1.6 relevant here are RPC 1.6(a) (setting forth the basic principles of confidentiality), RPC 1.6(b)(2) (setting forth the exception to confidentiality which arguably has application to the case), and RPC 1.6(d) (defining "reasonable belief" for the purposes of RPC 1.6(b)(2).
    Here, counsel no longer represented the client at the time of the newspaper article. We do not interpret RPC 1.6(b)(2) to be limited strictly to situations where the lawyer still represents the client. On the other hand, we do not believe that on the facts presented here a lawyer has a duty to somehow make inquiry as to what actually occurred in court when the lawyer was not present, had no continuing relationship with the client, and was alerted to the situation merely by a newspaper account which might or might not be accurate. Further, the information received by counsel during his representation was not unequivocal. Under such circumstances, and in a quasi-criminal case, we are unwilling to create an exception to attorney-client confidentiality. Such an interpretation would make the rule so fragile that the confidentiality could be virtually destroyed.
    Inquirer also asks whether he has an obligation to advise the court that the client's friend may have perjured himself at trial when he testified that he had been with the client the entire evening and that the client had consumed only three drinks.
    The principle of confidentiality is present in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) embodied in the law of evidence and the rule concerning confidentiality of information established in the Rules of Professional Conduct. The question whether information received from a non-party witness is confidential and protected from disclosure by RPC 1.6, the only issue within this Committee's jurisdiction, is one of first impression in this State. Similarly, although several states have answered this question in evidentiary rulings, none, to the best of our knowledge, have answered it as a matter of ethics.
    Since we have already determined that the information received by counsel during his representation was not unequivocal, we need not reach the question of whether information received from non- party witnesses is protected by RPC 1.6. We need only reiterate that on the facts presented, and in a quasi-criminal case, we are unwilling to create an exception to attorney-client confidentiality, regardless of the source of the information.

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