Conforti & Eisele, Inc. v. Division of Bldg. and Const., Dept. of Treasury

• Decision Date: 25 June 1979
• Citation: 170 N.J.Super. 64,405 A.2d 487
• Parties: CONFORTI & EISELE, INC., a New York Corporation authorized to do business in New Jersey, Plaintiff, v. The DIVISION OF BUILDING AND CONSTRUCTION, DEPARTMENT OF the TREASURY, State ofNew Jersey, et al., Defendants.
• Court: New Jersey Superior Court

Page 64

170 N.J.Super. 64

405 A.2d 487

CONFORTI & EISELE, INC., a New York Corporation authorized to do business in New Jersey, Plaintiff, v. The DIVISION OF BUILDING AND CONSTRUCTION, DEPARTMENT OF the TREASURY, State ofNew Jersey, et al., Defendants.

Superior Court of New Jersey, Law Division.

June 25, 1979.

Edward J. Frisch, Westfield, for plaintiff (Lindabury, McCormick & Estabrook, Westfield, attorneys).

Lawrence Moncher, Deputy Atty. Gen., for defendant (John J. Degnan, Atty. Gen., attorney; Jeffrey W. Jones, Deputy Atty. Gen., on the brief).

MARZULLI, J. S. C.

Conforti & Eisele, a general contractor, was the successful bidder on certain phases of the construction of the New Jersey College of Medicine and Dentistry. The State Division of Building and Construction (hereinafter referred to as the State) divided the construction work into five phases. Conforti & Eisele (hereinafter Conforti was awarded the contracts for phrases III and V. The contracts were performed with difficulties and delays which ripened into a lawsuit filed by Conforti against the State and others. The basic issue to be litigated at that trial is to determine which party was legally responsible for the "extras" and other items of damage Conforti alleges it suffered.

Since the suit involves highly technical matters in the fields of civil engineering and construction, each party has endeavored to retain an expert to analyze the merits of its legal position and issue an expert report. Conforti retained Hill International, Inc. (Hill) as an expert to aid it in the litigation involving phases III and V. The State, for the reasons set out below, moves to bar Conforti from utilizing Hill as an expert for the phase III and V litigation.

The State's position is that since it had previously retained Hill on phase II, another phase of the construction of the College of Medicine and Dentistry, Conforti should now be enjoined from employing Hill for these two phases of the same project. This injunction is necessary, the State contends, to protect confidential communications made by representatives of the State to Hill before and during the time Hill was employed as the State's expert on phase II.

A hearing was held to determine the propriety of granting what can only be referred to as a unique remedy for an unusual problem. In making this decision, I must balance two important interests. On the one hand, there is Hill's right to pursue its professional calling and the economic hardship it would suffer if I were to deny Hill its business relationship with Conforti. On the other hand, there exists the strong potential of a conflict of interest and the likelihood the State will suffer by having its confidences revealed to its adversary. Since there is no assertion that without Hill plaintiff is deprived of the use of an expert, Conforti's interest is comparatively weak.

There are two prongs to the State's argument: the attorney-client privilege and fundamental fairness. Each will be discussed separately below.

The attorney-client privilege, set out in N.J.S.A. 2A:84A-20, protects not only communications between an attorney and his client but also extends to communications made to any agent of the attorney. Applying the privilege to the present action, the State contends Hill was an agent of its attorney when Hill was engaged as an expert consultant for phase II. Before, during and after this relationship between Hill and the State, the State's attorney imparted confidences to Hill and the State permitted Hill free access to its files. Since Hill was the State's expert, both the State and its attorney felt confident that they could confide in Hill without fear that Hill would in any way misuse this information. Now that Hill is retained by Conforti, the State's adversary in phases III and V, the State argues the attorney-client privilege should be employed in such a way as to prevent any possible disclosures by Hill to Conforti of any confidences imparted to Hill by the State or its legal counsel.

Conforti argues that even if the attorney-client privilege applies to shield communications with regard to phase II between July and August 1978, the privilege should not extend to phases III and V, the only two phases involved in this lawsuit. Conforti also argues that the privilege should not extend to any communication made before July 1978 or after August 1978 since Hill's employment by the State on phase II existed only for that short period. Finally, Conforti contends the privilege should protect only those communications made by representatives of the State, and not those made by the State's attorney.

I make the following factual findings:

1. Hill International, Inc., holds itself out as a firm of experts providing litigants with opinions and reports relating to all phases of construction work. Their expertise includes legal, accounting, engineering, architectural and many other facets of construction work. The purpose of providing these services is to assist its clients' legal staff.

2. The relationship between Hill and the State developed over a period of time. It began at a conference in April 1978 where Mr. Richter, vice-president of Hill, was a lecturer. Deputy Attorney General Eugene Sullivan attended the conference and was impressed by Richter's expertise. Shortly after the conference Sullivan contacted Richter and asked him if Hill would act as a consultant for litigation involving phase II. Although at that time Sullivan was interested in retaining Hill for phase II only, phases III and V were also discussed.

3. Approximately one month after that initial meeting, a second meeting was held between representatives of Hill and Sullivan. At that meeting Sullivan discussed with Hill's representatives the various strengths and weaknesses of the State's case in phases III and V. A substantial amount of trial strategy was also aired at that meeting by both Hill's representatives and Sullivan in an attempt to solidify the State's legal position with regard to phases III and V.

4. Before being hired on phase II, Hill was given an opportunity to review the State's entire file, not only on phase II but on phases III and V as well. In addition, copies of the pleadings and administrative decisions for phases III and V were made available.

5. Several months later, in July 1978, the State retained Hill on phase II as a trial consultant and expert witness. Hill filed its final report on phase II and in August 1978 phase II was decided. Thereafter, since the State was still involved in phases III and V, the possibility of retaining Hill for those two phases as well was still entertained.

6. The parties continued in this position up until January 1979, when for reasons unrelated to this lawsuit the State decided it no longer desired to retain Hill.

7. Testimony at the hearing revealed that until this decision was made, conversations between the State and Hill continued and representatives of the State discussed trial tactics for the phase III and V litigation with Hill.

The applicability of the attorney-client privilege depends upon whether or not Hill ever acted as an agent for the State's attorney, the duration of that agency and whether or not confidential communications regarding phases III and V were made during that period.

Although there are no New Jersey cases which hold that an engineering firm is an agent for the purpose of applying the attorney-client privilege, the privilege has been extended to other agents acting on behalf of an attorney. State v. Kociolek, 23 N.J. 400, 129 A.2d 417 (1957) (privilege extended to communication between defendant and psychiatrist engaged by his attorney to examine him); State v. Tapia, 113 N.J.Super. 322, 273 A.2d 769 (App.Div.1971) (privilege extended to investigator for Public Defender's Office). Certainly the policy behind extending the attorney-client privilege to an agent of the attorney should apply regardless of the capacity in which the agent acts. The policy behind the privilege is to promote full and free discussion between a client, his attorney and the attorney's agents in order to prepare one's case. Kociolek, Supra. To further that policy, the privilege should enable a client to take appropriate action to protect such discussions from disclosure to his adversary.

In Wilson v. Superior Court, 148 Cal.App.2d 433, 307 P.2d 37 (D.Ct.1957), a defendant engineering firm had at one time been employed by a codefendant as an expert to investigate the cause of a landslide which was the subject of a law suit filed against it. A representative of the engineering firm refused to answer certain questions propounded at his deposition by plaintiff, whereupon plaintiff moved to compel him to answer. The court held that since defendant had been hired by his codefendant as an engineering expert, he was the agent of his codefendant's attorney. Therefore h...