Fellerman v. Bradley

• Decision Date: 27 June 1985
• Citation: 99 N.J. 493,493 A.2d 1239
• Parties: Nanc E. FELLERMAN, Plaintiff-Respondent, v. Francis J. BRADLEY, Jr., Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 493

99 N.J. 493

493 A.2d 1239

Nanc E. FELLERMAN, Plaintiff-Respondent, v. Francis J. BRADLEY, Jr., Defendant-Appellant.

Supreme Court of New Jersey.

Submitted Oct. 10, 1984.

Decided June 27, 1985.

Nancy C. Ferro, Ridgewood, submitted a brief on behalf of defendant-appellant (Ferro & Ferro, Ridgewood, attorneys).

Paula L. Crane, Montclair, submitted a letter in lieu of brief on behalf of plaintiff- respondent (Elwell & Crane, Montclair, attorneys).

The opinion of the Court was delivered by

HANDLER, J.

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, 465 A.2d 558 (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, 465 A.2d 558. 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, 465 A.2d 558.

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, 465 A.2d 558.

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, 465 A.2d 558, and that the refusal to disclose defendant's address would frustrate the judgment of the court. Id. at 83-84, 465 A.2d 558. Accordingly, the court ordered disclosure of the address. Id. at 84, 465 A.2d 558.

The Appellate Division affirmed the trial court's order. 192 N.J.Super. 556, 471 A.2d 788 (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, 471 A.2d 788. It found that the facts fell within the "crime or fraud" exception to the privilege. Id. at 559, 471 A.2d 788. 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, 475 A.2d 579 (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 1047, 1050 (1967).

It has been suggested in the course of these proceedings that the challenged communication--the address of the client--is not the kind of attorney-client communication that is covered by the privilege. The Appellate Division observed that the record was uninformative as to the circumstances surrounding the controverted communication and declined to rule whether the communication was itself encompassed by the privilege. 192 N.J.Super. at 558, 471 A.2d 788.

In general, the statutory and common-law standard for determining what constitutes a privileged communication is quite broad in terms of encompassing attorney-client conversations. For a communication to be privileged it must initially be expressed by an individual in his capacity as a client in conjunction with seeking or receiving legal advice from the attorney in his capacity as such, with the expectation that its content remain confidential. N.J.S.A. 2A:84A-20(1) and (3); In re Kozlov, 156 N.J.Super. 316, 321, 383 A.2d 1158 (App.Div.1978), rev'd on other grounds, 79 N.J. 232, 398 A.2d 882 (1979). See generally 8 Wigmore, supra, § 2292 at 554 (discussing when communication is privileged).

One basis for the assertion that an 'address' is not protected by the privilege is that in this case defendant's address was not given to his attorney for the specific purpose of obtaining legal advice. However, as noted by the Appellate Division, this argument is not factually supported. It is simply not possible to conclude whether the communication of the client's address was related to the legal advice that defendant sought to obtain and the lawyer rendered. We are thus unable to assess the contention that in this case the communication of defendant's address was so unrelated to seeking and receiving adequate legal advice that it cannot be cloaked with the attorney-client privilege.

It is further suggested that an address is never protected because the place where a client lives is an objectively demonstrable fact, susceptible of verification apart from its being the subject of a communication. For this reason, it is asserted that the "fact" of defendant's address can be considered apart from its "communication" and is therefore not protected by the attorney-client privilege.

There is, however, no clear decisional consensus about whether a personal address communicated by a client to an attorney in the course of the attorney-client relationship comes within the privilege. Cases that have required disclosure of a client's address generally have not assumed that an address as such cannot be a confidential communication. The focus of these decisions dealing with a client's address is not on the jurisdictional scope of the attorney-client privilege but on its overriding purpose. Thus, some cases require the disclosure of a client's address during the pendency of litigation when necessary to promote the efficient progress of the court or to avoid frustrating the judicial process. See Sunga v. Lee, 13 Ill.App.2d 76, 141 N.E.2d 63 (1957) (privilege is pierced when, after diligent efforts, plaintiff needs address to serve absentee defendant); In re Illidge, 162 Or. 393, 91 P.2d 1100 (1939) (attorney required to disclose address of client in deposition in which plaintiff was trying to determine how jurisdiction could be obtained); Taylor v. Taylor, 45 Ill.App.3d 352, 3 Ill.Dec. 961, 359 N.E.2d 820 (1977) (recognizing that to insure smooth operation of legal machinery during a pending action in which a client's address is sought, attorney is obliged to disclose client's place of residence). Other cases have recognized that even after final adjudication, an address may be required to be revealed if necessary to...