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Fellerman v. Bradley

Decided: May 16, 1983.


Krafte, J.J.D.R.C., (temporarily assigned).


The question presented in this matter is: In a post-judgment contest, do the attorney-client privilege and disciplinary rules, specifically DR. 4-101, preclude an attorney from revealing the whereabouts of his client when that client has instructed his attorney to keep this information confidential?

To fully understand the context within which this issue arises, a recitation of the background is necessary. On February 24, 1982, during the pendency of this action, the court appointed Seymour Rubin, C.P.A., to make examinations and render opinions as to defendant's financial matters. The initial cost of these services was to be borne by defendant, with allocation to await the final hearing. On April 20, 1982, this same expert was directed to examine plaintiff's financial affairs and to render a report.

Thereafter, in May or June, Mr. Rubin contacted defendant's then counsel, Edward S. Zizmor, as the retainer remained unpaid. Zizmor informed him that defendant moved out of state and that he did not know his whereabouts. On July 14, 1982 Ralph Ferro, defendant's present counsel, was substituted. In spite of not having received a retainer, Rubin completed his work as per his appointment and submitted his bill to Ferro on July 19, 1982. By October 8, 1982, the bill remained unpaid and the court directed Ferro to produce his client before this court. Ferro countered that his client was out of state and would not be available. Nevertheless, the plaintiff, her counsel, and defendant's counsel appeared in court on November 1, 1982, the trial date, before another judge, and placed an oral property settlement on the record incorporating it into the final judgment, after defendant's counsel telephonically conferred with and obtained the full approval of defendant. One of the issues specifically resolved was the now long-standing bill of Mr. Rubin with defendant agreeing to pay his total fee of $375. On November 15, 1982 this court once again wrote to Ferro concerning his client's failure to pay the expert's fee. Ferro responded: ". . . Mr. Bradley does not reside within the State of New Jersey. Although I have his address, the address was given to me in confidence by a client and I cannot disclose that address unless so ordered by the New Jersey Supreme Court. I am not attempting to be uncooperative, but I must observe the confidentiality of the lawyer-client relationship." In later correspondence Mr. Ferro specifically relied on DR. 4-101.

On May 2, 1983 the court on its own motions issued an order to show cause why the attorney should not be held in contempt for failure to disclose his client's address. On the return date, Ferro argued that to compel him to disclose his client's whereabouts would violate the attorney-client privilege and, further, that in any event, a court-appointed expert whose fee is unpaid should not enjoy a status higher than any other creditor. With respect to this latter point, this court expressly rejects that argument. On the contrary, for reasons more fully stated

hereinafter, this court finds an absolute necessity to afford such protection.

With regard to the attorney-client privilege, this court has surveyed the applicable case law and it appears that no New Jersey case has addressed this particular issue: that is, can a court in an effort to enforce its judgment or order, compel an attorney to disclose his client's address when the client has directed the attorney to keep that information confidential? That question is answered affirmatively.

The power of this court to institute civil proceedings for contempt is recognized by N.J.S.A. 2A:10-1 et seq. and found in R. 1:10-5, "Relief to Litigant." Further, "all superior courts of record, civil and criminal, possess inherently and independently of statutory authority, the power to punish." In re Merrill, 88 N.J. Eq. 261, 267 (Perog.1917). The within proceeding is on a civil, rather than criminal contempt. Consequently, the order for which coercive measures are sought to induce compliance must itself be valid. See In re Carton, 48 N.J. 9, 25 (1966). This court is satisfied that its order appointing an accountant and compelling payment of his fee was indeed valid.

In general, the power of a court to appoint an accountant and award fees against a party in a general equity matter is a recognized practice within the broad discretion of the Court of Chancery, Anzalone v. Anzalone Brothers, Inc., 185 N.J. Super. 481, 489 (App.Div.1982), but perhaps nowhere is this practice more often employed than in matrimonial litigation.

Rothman v. Rothman, 65 N.J. 219 (1974), mandates that the matrimonial judge determine each asset's value for the purpose of equitable distribution and that an accountant will sometimes be needed to achieve that purpose. The use of a court-appointed expert accomplishes that stated purpose and does so more efficiently than if each party employed their own. On behalf of the court, he garners the assets and objectively evaluates them. He is not considered anyone's "hired gun" and so disputes regarding his methodology or data base are typically

few in number and easily resolved to everyone's satisfaction. In fact, his unique position has been shown to be significant in prompting settlement. Family Advocate (ABA Family Law Section, vol. 4, No. 3, Winter 1982, page 12). The over-all effect is that the costs to litigants are minimized, preserving more of the marital estate, and ...

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