Richardson, In re

• Decision Date: 25 January 1960
• Docket Number: No. A--49,A--49
• Citation: 31 N.J. 391,157 A.2d 695
• Parties: In the Matter of Frederick F. RICHARDSON, relating to his refusal, in part, to testify and to produce records on the appeal of Russell J. Pfitzinger before the Civil Service Commission.
• Court: New Jersey Supreme Court

Page 391

31 N.J. 391

157 A.2d 695

In the Matter of Frederick F. RICHARDSON, relating to his refusal, in part, to testify and to produce records on the appeal of Russell J Pfitzinger before the Civil Service Commission.

No. A--49.

Supreme Court of New Jersey.

Argued Nov. 24, 1959.

Decided Jan. 25, 1960.

Theodore I. Botter, Union City, for appellants (David D. Furman, Atty. Gen., Attorney for appellants Civil Service Commission, State Highway Department and Dwight R. G. Palmer, State Highway Commissioner).

Frederick F. Richardson, New Brunswick, pro se.

The opinion of the court was delivered by

JACOBS, J.

The Mercer County Court determined that in view of the attorney-client privilege the respondent Frederick F. Richardson could not be compelled to divulge who paid the fees for the legal services rendered by him in his professional representation of Russell J. Pfitzinger; accordingly, it discharged the order to show cause which the Attorney General had obtained and the appellants duly filed their notice of appeal to the Appellate Division. We certified the appeal while it was pending there.

Mr. Pfitzinger, a material inspector in the State Highway Department, was charged in 1949 or 1950 with violation of the Hatch Political Activity Act. See 5 U.S.C.A. § 118k(a). He consulted Mr. Richardson who agreed to act as his attorney; Mr. Richardson was then general counsel for Dallenbach Sand Co., a corporation which was engaged in the mining of sand and gravel and its sale to various people including contractors doing construction work for the State of New Jersey and whose products were the subject of inspection from time to time by Mr. Pfitzinger. The United States Civil Service Commission found Mr. Pfitzinger guilty of violation of the Hatch Act and imposed a fine; its action was sustained by the United States District Court for the District of New Jersey and the United States Court of Appeals for the Third Circuit. See Pfitzinger v. United States Civil Service Commission, 96 F.Supp. 1 (D.C.D.N.J.1951), affirmed 192 F.2d 934 (3 Cir. 1951). The fine was paid and Mr. Pfitzinger continued in his employment as an inspector in the State Highway Department.

In 1958 the State Highway Commissioner charged Mr. Pfitzinger with conduct unbecoming an employee in the public service in that he allegedly had (1) refused to submit favorable reports on materials until given gratuities of various sorts, (2) violated Department directives that employees should not accept gifts or gratuities from persons doing business with the Department, (3) permitted contractors and suppliers doing business with the Department and its contractors to collect and pay his attorney's fees in the Hatch Act proceeding, and (4) requested contractors and suppliers doing business with the Department and its contractors to collect and pay his attorney's fees in the aforementioned matter. After a departmental hearing, Mr. Pfitzinger was suspended and removed from his employment for (1) conduct unbecoming an employee, (2) neglect of duty and (3) violation of departmental regulations or orders of his superior officers. He appealed to the State Civil Commission and received a De novo hearing before that body.

During the hearing before the State Civil Service Commission, Mr. Herbert testified that he was an officer of Dallenbach Sand Co., that Mr. Pfitzinger had asked him where he could get 'some help' in connection with the Hatch Act charge and that he had sent him to Mr. Richardson. He denied that he or his company had paid the fine imposed on Mr. Pfitzinger or had made any specific payments to Mr. Richardson for legal services rendered to Mr. Pfitzinger. Mr. Richardson was called as a witness before the Commission on February 2, 1959 and was asked (1) whether he submitted a bill for services to Mr. Pfitzinger, (2) whether Mr. Pfitzinger paid the bill for legal services, (3) whether any one else paid the bill for legal services and (4) what bank he did business with as an attorney from 1949 through 1952. Although he was ordered to answer these questions he refused to do so, asserting the attorney-client privilege. On April 29, 1959 Mr. Richardson was again called to testify; at that time he refused to state the name, address or business of the person who paid the bill for services or the amount of the bill and when and how it was paid or whether he had any books and records reflecting the payment.

Pursuant to an application of the Attorney General, the Mercer County Court issued an order directing the respondent to show cause why he should not be adjudged guilty of contempt for his failure to testify and produce his records before the State Civil Service Commission. See N.J.S.A. 11:1--13. After hearing argument, the court sustained the respondent's claim of privilege and entered a formal order dated July 2, 1959, discharging the order to show cause. The right of the appellants to appeal from this order is not in anywise challenged in the briefs before us but counsel for Mr. Pfitzinger, in a letter addressed to a presiding judge of the Appellate Division, has suggested that the matter before the Mercer County Court was a criminal contempt proceeding and its discharge of the order to show cause was therefore nonappealable and that, in any event, the matter is moot because the hearing before the Civil Service Commission has been closed. The real design of the appellants is not to punish the respondent for his refusals before the Commission but to obtain his testimony and records through the aid of the judicial process; and at oral argument the respondent took the fair position that while he considered himself bound to assert the attorney-client privilege, he would readily furnish the testimony and records to the Commission in the event this court determines that the claim of privilege lacks legal foundation. Under the circumstances the proceeding must be viewed as in the nature of civil rather than criminal contempt and the order must be deemed reviewable in the same manner as other final judgments in civil causes. See R.R. 2:2--1; Penfield Co. of Cal. v. Securities & Exch. Comm., 330 U.S. 585, 590, 67 S.Ct. 918, 91 L.Ed. 1117, 1122 (1947); cf. Danes v. Smith, 22 N.J.Super. 292, 293, 92 A.2d 43 (App.Div.1952). See also Note, 'Use of contempt power to enforce subpoenas and orders of administrative agencies,' 71 Harv.L.Rev. 1541 (1958). Although the hearing before the Commission was closed, the Attorney General stated at oral argument that if the claim of privilege were rejected by this court he would move to reopen the hearing for the purpose of including the respondent's testimony and records. And while we understand that subsequent to the oral argument the Commission did file a decision finding the defendant guilty of some charges and not guilty of others, the time for appeal and cross appeal from that decision has not expired and the parties have not made any application before us grounded on its filing. Under the circumstances we have concluded that the appeal should not be dismissed as moot.

The attorney-client privilege is firmly imbedded in our common law although in our State it has never been formally set forth in either constitutional or statutory provision. See State v. Toscano, 13 N.J. 418, 424, 100 A.2d 170 (1953). It is the oldest of the privileges for confidential communications and although its early origins involved considerations for the oath and honor of the attorney it is now recognized as resting upon the policy in favor of affording to the client freedom from apprehension in consulting his legal adviser. See 8 Wigmore, Evidence, § 2290, pp. 547, 548 (3d Ed. 1940). Since the privilege results in the exclusion of evidence it runs counter to the widely held view 'that the fullest disclosure of the facts will best lead to the truth and ultimately to the triumph of justice'. See In re Selser, 15 N.J. 393, 405, 105 A.2d 395, 402 (1954). The policy supporting full disclosure necessarily competes with the policy supporting the privilege and courts are frequently required to balance them; in the process they properly point out that since the policy of full disclosure is the more fundamental one, the privilege is not to be viewed as absolute and is 'to be strictly limited to the purposes for which it exists.' See In re Selser, supra, 15 N.J. at page 405, 105 A.2d at page 401; 8 Wigmore, supra, § 2291, p. 557.

The privilege relates generally to confidential communications from the client (or his agent) to the attorney but does not ordinarily extend to communications from third persons. See 8 Wigmore, supra, § 2317, pp. 615--616; cf. McCormick, Evidence, § 95, p. 190 (1954); 58 Am.Jur., Witnesses § 492, p. 275 (1948). Nor does it extend to every type of confidential communication from the client to the attorney. See In re Selser, supra, 15 N.J. at page 406, 105 A.2d at page 402; cf. State v. Toscano, supra, 13 N.J. at page 424, 100 A.2d at page 172. In the Selser case an attorney declined to disclose revelations by his client concerning his continuing activities in bribing public officials, claiming that the confidential information was privileged from disclosure by the attorney-client relationship. In rejecting his contention, this court relied on the settled doctrine which excludes the privilege where the client has consulted the attorney in reference to a future criminal or fraudulent transaction. See Matthews v. Hoagland, 48 N.J.Eq. 455, 465, 21 A. 1054 (Ch.1891); In re Stein, 1 N.J. 228, 236, 62 A.2d 801 (1949); 8 Wigmore, supra, § 2298, p. 573. In the Toscano case this court noted that authorities throughout the country hold that while the privilege protects generally against the disclosure of confidential communications from the client to his attorney it is not intended to permit concealment by the attorney of the identity of his client, citing Behrens v. Hironimus, 170 F.2d 627 (4 Cir. 1948); United States v. Pape, 144 F.2d...