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Fellerman v. Bradley

Decided: June 27, 1985.

NANC E. FELLERMAN, PLAINTIFF-RESPONDENT,
v.
FRANCIS J. BRADLEY, JR., DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 192 N.J. Super. 556 (1983).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. The opinion of the Court was delivered by Handler, J.

Handler

In this case, an attorney representing a litigant in a contested matrimonial matter refused to disclose to a trial court the address of his client. As a result, the attorney effectively prevented the court from enforcing a provision of the final judgment that required the client to pay an expert's fee. The legal issue presented concerns the extent to which a client's address is protected against compelled disclosure under the statutory attorney-client privilege, as well as the court disciplinary rule governing confidential and secret communications between attorneys and clients.

I.

In the course of divorce proceedings, the trial court appointed an accountant to examine the financial affairs of the defendant-husband, as well as those of the plaintiff-wife. 191 N.J. Super. 73 (Ch.Div.1983). The initial costs of these professional services were to be borne by defendant with the total costs to be allocated after the final hearing. Id. at 75. While still performing these services the accountant contacted Edward S. Zizmor, defendant's former attorney, to arrange for the payment of his fee. He was advised that defendant had moved out of New Jersey and that his whereabouts were unknown. Nevertheless, the accountant continued to perform the financial examinations as directed by the court. He submitted his final

bill for $375.00 to Ralph Ferro, Esq., who had been substituted as counsel for defendant. Id. at 76.

On the date set for trial the divorce litigation was concluded by an agreement between the parties. The agreement was later incorporated into the final judgment, explicitly obligating the defendant to pay the accountant's fee. Thereafter the trial court wrote to Mr. Ferro requesting payment of the accountant's fee. Mr. Ferro replied that defendant no longer resided in New Jersey and that "[a]lthough I have his address, this 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." He additionally stated that he was "not attempting to be uncooperative, but [that he] must preserve the confidentiality of the lawyer-client relationship." Id. at 76.

The court then ordered Mr. Ferro to show cause as to why he should not be held in contempt for his refusal to disclose defendant's address. On the return date, Mr. Ferro again raised the attorney-client privilege as a defense. The court determined that recognition of the privilege in these circumstances "would not serve any of its purposes and would do violence to the principles and ideals it is intended to further," id. at 83, and that the refusal to disclose defendant's address would frustrate the judgment of the court. Id. at 83-84. Accordingly, the court ordered disclosure of the address. Id. at 84.

The Appellate Division affirmed the trial court's order. 192 N.J. Super. 556 (1983). It acknowledged that the privilege should be strictly construed to achieve its underlying purpose of facilitating the full exchange of information between an attorney and client. 192 N.J. Super. at 558-59. It found that the facts fell within the "crime or fraud" exception to the privilege. Id. at 559. The court also rejected defendant's argument that his address was a "confidence or secret" protected from disclosure by the applicable disciplinary rule. We granted certification, 96 N.J. 280 (1984), and now affirm the

judgment below substantially for the reasons advanced by the lower courts.

II.

The attorney-client privilege is codified at N.J.S.A. 2A:84A-20 and in Evidence Rule 26. The enacted privilege provides that

communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it. . . . The privilege shall be claimed by the lawyer unless otherwise instructed by the client or his representative; the privilege may be claimed by the client in person. . . . [ N.J.S.A. 2A:84A-20; Evid.R. 26.]

A client entitled to the privilege is defined as a person who "consults a lawyer . . . for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity." N.J.S.A. 2A:84A-20(3); Evid.R. 26(3).

Although now codified by statute, the attorney-client privilege is recognized as one of "the oldest of the privileges for confidential communications." 8 J. Wigmore, Evidence § 2290, at 542 (McNaughton rev. 1961); see G. Hazard, "An Historical Perspective on the Attorney-Client Privilege," 66 Calif.L.Rev. 1061, 1971 (1978); Note, "The Attorney-Client Privilege: Fixed Rules, Balancing, and Constitutional Entitlement," 91 Harv.L.Rev. 464, 465 (1977). Over time, the primary justification and dominant rationale for the privilege has come to be the encouragement of free and full disclosure of information from the client to the attorney. See C. McCormick, Evidence § 87, at 175-76 (2d ed. 1972); Wigmore, supra, § 2290, at 543; Note, "The Attorney-Client Privilege in Class Actions: Fashioning an Exception to Promote Adequacy of Representation," 97 Harv.L.Rev. 947, 948 (1984). This has led to the recognition that the privilege belongs to the client, rather than the attorney. J. M. Callen & H. David, "Professional Responsibility and the Duty of Confidentiality: Disclosure of Client Misconduct in an Adversary System," 29 Rutgers L.Rev. 332, 337 (1976); Annot., "Disclosure of Name, Identity, Address, Occupation or Business

of Client as Violation of Attorney-Client Privilege," 16 A.L.R. 3d ...


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