Advisory Opinion No. 544 of New Jersey Supreme Court Advisory Committee on Professional Ethics, In re

• Citation: 511 A.2d 609,103 N.J. 399
• Parties: . Supreme Court of New Jersey
• Decision Date: 17 July 1986
• Court: United States State Supreme Court (New Jersey)

Page 399

103 N.J. 399

511 A.2d 609

In re ADVISORY OPINION NO. 544 OF the NEW JERSEY SUPREME

COURT ADVISORY COMMITTEE ON PROFESSIONAL ETHICS.

Supreme Court of New Jersey.

Argued March 18, 1986.

Decided July 17, 1986.

Cecelia Urban, East Orange, for appellant Community Health Law Project (Harold B. Garwin, Executive Director, Trenton, attorney).

Carol L. Widemon, Deputy Atty. Gen., for respondent New Jersey Supreme Court Advisory Committee on Professional Ethics (W. Cary Edwards, Jr., Atty. Gen., attorney; James J. Ciancia, Asst. Atty. Gen., of counsel; Susan R. Oxford, Deputy Atty. Gen., on brief).

Melville D. Miller, Jr., Trenton, President, for amicus curiae, Legal Services of N.J. (Melville D. Miller, Jr., Trenton, attorney, Melville D. Miller, Jr., Trenton, and Joseph Harris David, Sr. Atty., New Brunswick, on brief).

Richard E. Shapiro, Director, Div. of Public Interest Advocacy, Trenton, for amicus curiae, New Jersey Dept. of Public Advocate (Alfred A. Slocum, Public Advocate, attorney).

The opinion of the Court was delivered by

HANDLER, J.

We are called to consider in this case the application of attorney-client protections to the relationship between a public legal services organization and the individuals whom it assists. The issue posed is whether certain information relating to the clients of a legal services organization, which provides legal assistance to mentally impaired or disabled and indigent persons, may be disclosed to the private and governmental entities that provide funds to the organization, without violating the protections of confidentiality accorded attorney-client communications and relationships.

The legal services organization resisting such disclosure is the Community Health Law Project (hereinafter the Law Project). It is a non-profit organization providing legal services to indigent, mentally disabled and retarded persons in Essex, Mercer, Union, and Camden counties. Its legal services are funded by private and public sources. Various contracts with the funding entities obligate the Law Project to make periodic reports relating to the services provided, including in some instances information about the individual clients served. ¹

Under the funding plans of several community mental health centers, identifying, descriptive information, such as a client's name, address, and date of birth, have been sought by the entities providing funds. The Law Project has chosen not to reveal the identity of individual clients by furnishing such information. Rather, it has attempted to accommodate these requests by providing data that have been aggregated and by disclosing information on individual clients only to the extent and in a manner that the revelation would not serve to identify the clients directly or indirectly. However, several funding entities expressed their dissatisfaction with the generalized nature of the information received from the Law Project and have insisted upon obtaining individual client-identifying information.

In the face of these more particularized demands, the Law Project has taken the position that such identifying information is or may be protected from disclosure under the strictures governing the professional conduct of lawyers. ² However, confronted by this genuine ethical dilemma, the Law Project sought guidance from the Advisory Committee on Professional Ethics (ACPE) in January 1984 to ensure that disclosure would not violate any ethical precepts.

In Opinion No. 544, 114 N.J.L.J. 477 (1984), the ACPE ruled that the disclosure of the information requested by private and public funding entities does not violate the confidences of the Law Project's clients and that the information requested would not violate client secrets or confidences within the meaning of then-applicable ethics standards, Disciplinary Rule 4-101(A), or Disciplinary Rule 4-101(C)(1). The Law Project then filed a petition with this Court to review the determination of the ACPE, which was originally denied. 101 N.J. 335, 501 A.2d 984 (1985). A motion for reconsideration of the denial was then granted by this Court. --- N.J. ----, (1985).

We must initially consider the applicability of the attorney-client privilege to the relationships that exist between the Law Project and its clientele. The Law Project, as we have noted, is an organization that provides legal services to a particular class of persons, consisting of indigent, mentally-retarded, or disabled individuals. These persons are in need of legal assistance but cannot otherwise afford to retain an attorney and hence turn to the Law Project for legal help. The Law Project engages licensed attorneys of the State, who furnish legal advice and counselling to the individuals eligible for such services.

As licensed attorneys, the Law Project's lawyers are subject in every respect to the rules governing the professional conduct of lawyers. See In re Education Law Center, Inc., 86 N.J. 124, 138, 429 A.2d 1051 (1981) (in course of representation by public law firm, lawyers are subject to all disciplinary rules and to discipline of the Supreme Court). Accordingly, lawyers employed by governmental or public interest organizations are bound by the same ethical mandates of the Supreme Court's Rules of Professional Conduct, as well as other standards governing the professional activities of licensed attorneys.

Further, the persons who receive the legal services of the Law Project through its individual staff attorney are "clients." A client, in the context of the attorney-client privilege, is 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). Consequently, it is not questioned that there exists between the Law Project and its attorneys who render legal services and the persons who receive those services an attorney-client relationship to which the attorney-client privilege fully applies.

It is also beyond question that indigent, needy, or otherwise eligible clients, assisted by attorneys without fees, are entitled to the same protections as clients who retain private counsel. See In re Education Law Center, Inc., supra, 86 N.J. at 133, 136, 429 A.2d 1051, ABA Comm. on Prof. Ethics Informal Opinion 324 (1970); ABA Comm. on Prof. Ethics 1443 (1979); Ariz. Comm. on R.P.C. Op. 81-4 (1981). Because the status of clients in every sense is ascribed to these persons, we must accordingly consider in this case the extent of these client-protections particularly as to matters falling within the ambit of the attorney-client privilege.

The major focus of the attorney-client privilege has historically and traditionally been upon the communications that occur or information that is exchanged between an attorney and his or her client relating to the special attorney-client relationship. 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 Hazard, "An Historical Perspective on the Attorney-Client Privilege," 66 Calif.L.Rev. 1061, 1071 (1978); Note, "The Attorney-Client Privilege: Fixed Rules, Balancing, and Constitutional Entitlement," 91 Harv.L.Rev. 464, 465 (1977). While the attorney-client privilege has evolved and changed in terms of its emphasis and applications, 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. This has led to the recognition that the privilege belongs to the client, rather than the attorney. Callen & David, "Professional Responsibility and the Duty of Confidentiality: Disclosure of Client Misconduct in an Adversary System," 29 Rutgers L.Rev. 332, 337 (1976); Annot., 16 A.L.R. 3d 1047, 1050 (1967). Hence the key element of this privilege has been a protective cloak of confidentiality applied to such exchanges. See C. McCormick, Evidence § 87, at 175-76 (2 ed. 1972); J. Wigmore, Evidence, 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).

The extent of the protection accorded communications and other information arising in the course of any attorney-client relationship is governed by the attorney-client privilege as well as several ethics standards. The attorney-client privilege itself, while rooted in the common law, has acquired a basis in both statute and rule. See N.J.S.A. 2A:84A-20; Evid.R. 26. This codification provides that communications between a lawyer and his or her client in the course of that relationship and in professional confidence are privileged; a client has a privilege (a) to refuse to disclose any such communication, and (b) to prevent his or her lawyer from disclosing it. N.J.S.A. 2A:84A-20. While in a sense the privilege belongs to the client, the lawyer is obligated to claim the privilege unless otherwise instructed by the client or the client's representative. Ibid.

The scope of the attorney-client privilege or protections is also subject to ethics rules governing attorney conduct. In this case, the ACPE determined the issue posed by the Law Project under the former Disciplinary Rules. It applied Disciplinary Rule 4-101(A), entitled "Preservation of Confidences and Secrets of a Client." Under this rule, confidences are defined as information protected by the attorney-client privilege under applicable law. Ibid. The rule also deals with "secrets," which are defined as other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or detrimental to the client. Ibid.

The Disciplinary Rules have been superseded by the Rules of Professional Conduct. The relevant rule now provides that a lawyer...