Eastwood, Joseph L. Smith and Haneman. Haneman, J.s.c. (temporarily assigned). Joseph L. Smith, J.s.c. (temporarily assigned) (dissenting).
[27 NJSuper Page 259] On February 24, 1953 the defendant John E. Selser, a member of the Bar of the State of New Jersey, was called as a witness before the grand jury of Bergen County. Upon being sworn by the foreman of said grand jury the following questions were propounded to him:
"Q. Well, just so we can clarify the record, I do want to ask you specifically if you will give us those names which were disclosed to you by your clients, as to who was paid protection money, and ask you to answer that specific question."
"Q. Now, I would like to ask you a specific question for the record. Can you give us the names of the persons receiving political contributions on the State and County level as given to you by your so-called racketeer clients?"
"Q. Well, did he [Willie Moretti] tell you that he [Willie Moretti] had been to Mr. Dickerson's home?"
"Q. Did he [Willie Moretti] tell you also with reference to the fact that a conversation occurred between him [Willie Moretti] and Dickerson?"
The questions were propounded to the defendant by the grand jury of Bergen County in connection with an investigation of gambling and law enforcement in said Bergen County, commenced by a special grand jury on January 2, 1951.
The defendant refused to answer each of said questions on the grounds that the information thus sought to be elicited was received by him as attorney for the respective parties mentioned in said questions and that therefore it was privileged and he was barred from furnishing the same unless his respective clients expressly waived the privilege.
Upon his refusal to furnish the answers to the questions so directed to him, a verified petition was filed by the Deputy Attorney-General, upon which an order was issued by J. Wallace Leyden, Superior Court Judge, directing him to show cause why he should not be ordered to answer the said questions.
Upon the filing of affidavits, the taking of testimony and argument of counsel, the said judge of the Superior Court discharged the order to show cause on the ground that there existed the relation of attorney and client between the said defendant and the persons from whom he had acquired the information sought and that such information was a privileged confidential communication. The court further held that until the said clients expressly waived this privilege the defendant was barred from testifying.
The State here appeals from the order and judgment discharging the order to show cause.
The facts in connection herewith are as follows: On October 30, 1950 a complaint under oath was filed by Eugene A. Haussling, Lieutenant of the New Jersey State Police, charging Joseph Doto, Salvatore Moretti, James P. Lynch, Arthur Longano and Anthony Guarini with conspiracy to keep and maintain a place to which persons might resort for the purpose of gambling. On the same date a warrant was issued against the aforesaid persons so charged. On October 31, 1950, at two o'clock in the morning, the defendant received a telephone call from one Guarino Moretti, also known as Willie Moretti (by which name he will hereafter be referred to), as a result of which he was retained by the said Willie Moretti as his attorney and as attorney for the other five above-named individuals. He was then informed that the above-named five individuals were about to be arrested on warrants charging them with violations of the gambling laws of the State of New Jersey. The said warrant was served upon Joseph Doto and Salvatore Moretti on October 31, 1950. On the same date Joseph Doto and Salvatore Moretti were produced by their attorney, John E. Selser, at 11 A.M., and were arraigned on the said complaint and entered pleas of not guilty and bail was fixed. Thereafter, by arrangement with the said John E. Selser, who stated that he could not at that time get in touch with James P. Lynch and Arthur Longano, the said James P. Lynch and Arthur Longano were produced by the said John E. Selser on November 2, 1950 and were arraigned upon the said complaint aforesaid and entered pleas of not guilty and bail was fixed. Anthony Guarini, the other defendant against whom the said warrant was issued, was at the time of the issuance thereof confined in State Prison at Trenton under sentence previously imposed. The warrant against James P. Lynch and Arthur Longano was thereafter returned on November 2, 1950 by the said Eugene A. Haussling.
The above-named five defendants, with the exception of Willie Moretti, were subsequently indicted by the grand jury of Bergen County, to which they entered pleas of not guilty
on January 26, 1951. On May 21, 1951 the said individuals retracted the aforesaid pleas of not guilty and entered pleas of non vult. They were sentenced on May 28, 1951. Willie Moretti, from and after October 30, 1950, was not charged nor arrested nor indicted in Bergen County until November 7, 1952. On that date the said Willie Moretti, who was then deceased, having been murdered by persons unknown, was indicted by the Bergen County grand jury, together with Harold John Adonis, Andrew Adonis and others whose names were not known to the grand jury at the time of the indictment, upon a charge of a continued conspiracy to obstruct the due administration of the laws of this State, which said conspiracy allegedly commenced in 1947 and continued thereafter.
Subsequent to October 31, 1950, according to the defendant, he had numerous conversations and conferences with all of the parties involved, and especially with Willie Moretti. According to the defendant, and there is no testimony to contradict this statement, the said Willie Moretti consulted him concerning various consummated transactions in which the said Willie Moretti had been involved and which he feared might result in his indictment by the said grand jury.
The communications from Willie Moretti to the defendant as his attorney concerning these facts and acts were of possible criminal conduct already accomplished, and the advice sought was in connection with past actions and not as to any future or prospective commission of crime. It is highly conceivable and entirely plausible that Willie Moretti, finding himself finally in the vulnerable position in which he stood, would have consulted the defendant prior to an actual complaint or indictment, having in mind the nature of the investigation being conducted. It was during these conferences that the defendant obtained the information sought by the grand jury.
In this posture of the case, it must be concluded that the defendant represented all of the above-named parties, not only in connection with the crime for which the five of them were indicted, but as well in connection with other matters in
which they were involved and for which they might be indicted, including the corruption or bribery of public officials.
The affidavits filed by the defendant and the testimony are replete with statements which show that the relationship of attorney and client for the above purposes existed between the defendant and the six named individuals. As a matter of fact, the Deputy Attorney-General in his examination of Mr. Selser frequently referred to Willie Moretti and the five other named individuals as Mr. Selser's "clients." Nowhere in its brief does the State dispute this relationship of attorney and client.
The basis for the privilege accorded communications from a client to an attorney are very aptly stated in Matthews v. Hoagland , 48 N.J. Eq. 455 (Ch. 1891).
Initially, the privilege of a communication by a client to his attorney was objective rather than subjective. It involved a consideration for the oath and honor of the attorney rather than for the apprehension of his client. In the early part of the 18th Century there was developed a new theory upon which this privilege was bottomed, providing subjectively for the client's freedom of apprehension in consulting his legal adviser. Since then, however, by gradual development, the essential requisites preceding the valid interposition of such a privilege, and the privilege itself, have become recognized to be as follows:
"(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived."
8 Wigmore on Evidence (3 rd ed.), p. 558.
In State v. Loponio , 85 N.J.L. 357 (E. & A. 1913), the court said:
"Where, therefore (enlarging somewhat upon the language of Professor Wigmore), legal advice of any kind is sought from a duly-accredited professional legal adviser in his capacity as such, the
communications relevant to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself, or by the legal adviser, or by the agent of either confidentially used to transmit the communications, except the client waives the protection. Wigm. Ev., sec. 2292; Hatton v. Robinson , 14 Pick. 416, 31 Mass. 416."
The Canons of Professional Ethics of the American Bar Association, made a part of the rules promulgated and adopted by our Supreme Court, provide, in part, as follows:
"It is the duty of a lawyer to preserve his client's confidence. This duty outlasts the lawyer's employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that his obligation prevents the performance of his full duty to his former or to his new client.
If a lawyer is accused by his client, he is not precluded from disclosing the truth in respect to the accusation. The announced intention of a client to commit a crime is not included within the confidence which he is bound to respect. He may properly make such disclosures as may be necessary to prevent the act or protect those against whom it is threatened."
There were here present both the professional confidence and professional employment which would ordinarily make the communications confidential and would bar the defendant from testifying, absent an express waiver from his clients. The facts disclose the ...