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In re Kozlov

Decided: February 15, 1978.

IN RE HERSCHEL KOZLOV, ESQ.


Michels, Pressler and Bilder. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

Herschel Kozlov, an attorney at law of this State, appeals from an order holding him in contempt in facie curiae when he refused to comply with an order of the trial judge directing him to disclose his client's identity. The penalty imposed was a fine of $50.

The circumstances leading to the issuance of the disobeyed order are not disputed. In December 1976 one Floard Catlett, the police chief of the Borough of Lawnside, had been convicted of crime in what was apparently a trial of some local notoriety. In early January 1977 Kozlov, who had had nothing at all to do with that trial or with anyone therein involved, received information from a client of his that he, the client, had overheard a conversation in which one of the jurors in the Catlett trial had "made statements with respect to getting even with the defendant [Catlett] for the arrest and prosecution of a member of his family." The client, however, had conveyed this information to Kozlov only after being assured by him that he, the client, would not become directly or publicly involved. It was clearly the client's understanding that while Kozlov would convey the substance of the communication to appropriate persons, he would not convey his source of that information. The communication itself was made during the course of a meeting between Kozlov and the client dealing with the client's legal business to which the Catlett matter was wholly extraneous, and there is nothing in the record to suggest that the client had any connection therewith, direct or indirect, other than the conversation he had overheard and the fact that he knew the juror's identity.

Kozlov immediately communicated with Catlett's attorney, Carl D. Poplar, repeating to him what he had heard from his client and emphasizing again that his client had disclosed

that information only on his, Kozlov's, assurance that the client's identity would be kept secret. Poplar investigated Kozlov's information and discovered that a person bearing the same surname as the juror in question and residing at his address had in fact been the defendant in a disorderly person's proceeding in the Borough of Lawnside Municipal Court.*fn1 He thereupon made application pursuant to R. 1:16-1 to the judge who had presided at Catlett's trial seeking to have the juror interviewed. The application was supported by Poplar's affidavit which contained Kozlov's hearsay, a recitation of the pertinent facts of the Lawnside Municipal Court proceeding and the recollection that at the voir dire of prospective jurors the juror in question, as did all the others ultimately sworn, denied knowing Catlett or having any reason for bias against him.

It appears from the record that the trial judge was not satisfied with the sufficiency of Poplar's affidavit as a basis for initiating the juror-interrogation process since the affidavit relied exclusively on the hearsay information and the municipal court record, which on its face showed no direct link between the juror and Catlett.*fn2 Accordingly, he scheduled an in camera hearing which Poplar, the prosecuting attorney in the Catlett trial, and Kozlov were requested to attend. Kozlov sought and was granted leave to be represented by counsel at the hearing. Although there was substantial colloquy on the question of whether the attorney-client privilege would

protect Kozlov's refusal to identify his client, no determination of the issue was then made for the reason that Kozlov had not been able to reach the client prior to the hearing and was apparently hopeful that when he, the client, returned from a short business trip he was then on, either he, Kozlov, or his attorney would be able to persuade the client to consent to the divulging of his identity. The hearing was continued several days later, Kozlov again testifying under oath as to the circumstances and substance of the client's communication to him. He further reported that the client would agree to the revealing of his identity for purposes of the in camera proceeding only if he could be assured that his name would not be made public, his motive apparently being to avoid the embarrassment and derision which he felt would result from public disclosure. The trial judge's response was that while the client's name would not be disclosed if disclosure were unnecessary, nevertheless he, the trial judge, could not give any advance assurance that disclosure might not become necessary during some subsequent post-trial open-court proceeding in the Catlett case. He thereupon ruled that the attorney-client privilege was inapplicable and ordered Kozlov to name his client. Kozlov, after being given the opportunity to confer privately with his attorney, refused to do so, still relying on the privilege from which, he explained, his client had refused, despite his request, to release him. After expressing his reluctance to have to hold in contempt a reputable member of the bar acting in good faith, the trial judge nevertheless observed that he had no further options and concluded that portion of the in camera proceeding by declaring Kozlov in contempt and ordering him to pay a $50 fine.

Kozlov's appeal is predicated on two contentions: first, that the attorney-client privilege was improperly disallowed by the trial judge, and second, that even if the privilege did not apply to the withholding of the client's identity, the contempt was not in facie curiae and hence was required to

have been prosecuted pursuant to R. 1:10-2 rather than summarily pursuant to R. 1:10-1.

As to the first of these contentions, we are persuaded that in the circumstances here, the privilege did not apply. The common-law attorney-client privilege, now codified by Evid. R. 26, N.J.S.A. 2A:84A-20, and recognized as the oldest of the privileges for confidential communications, rests "upon the policy in favor of affording to the client freedom from apprehension in consulting his legal advisor." In re Richardson , 31 N.J. 391, 396 (1960). Proper exercise of the privilege presupposes the existence of all of the prerequisite elements of the attorney-client relationship, namely, that a client has sought legal advice of any kind from a lawyer in his capacity as such and the communication relating to that purpose is made in confidence. Such a communication is at the client's instance permanently protected from disclosure by himself or his lawyer except if he has waived that protection. See generally, 8 Wigmore, Evidence (McNaughton rev. 1961), ยง 2292 at 554. And see Evid R. 26(3). Our courts have, however, consistently ...


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