Law School Case Brief
A. v. B. - 158 N.J. 51, 726 A.2d 924 (1999)
In limited circumstances N.J. Ct. R., Rules of Professional Conduct 1.6(c) permits a lawyer to disclose a confidential communication. Rule 1.6(c) permits, but does not require, a lawyer to reveal confidential information to the extent the lawyer reasonably believes necessary to rectify the consequences of a client's criminal, illegal or fraudulent act in furtherance of which the lawyer's services had been used. N.J. Ct. R., Rules of Professional Conduct 1.6(c)(1).
The husband and wife retained Hill Wallack (the firm), a law firm of approximately sixty attorneys, in October 1997 for estate-planning purposes, and because the firm was to represent both spouses, signed letters captioned "Waiver of Conflict of Interest.” Each spouse consented to and waived any conflicts arising from the firm's joint representation. The husband and wife later executed wills drawn by the firm's estate-planning department, under which they agree to leave their respective residuary estates to each other. If the other spouse does not survive, the contingent beneficiaries were the testator's issue, which by statute includes legitimate and illegitimate children. In January 1998, before the wills were signed, the firm was retained to represent a woman (the mother) to pursue a paternity claim against the husband. Although the firm conducted a computer search of its files to detect any possible conflict of interest before agreeing to represent the mother, the search did not reveal the husband as an existing client because the surname had been misspelled due to a clerical error when the estate-planning files of the husband and wife were opened. When the husband was contacted by the attorney from Hill Wallack's family law department on behalf of the mother, he did not reveal that he, too, was a client of the firm and did not object to the firm's representation of the mother. He had retained another firm to represent him in connection with the paternity claim, which he initially disputed. DNA testing revealed the husband to be the father of the mother's child and suit was instituted against the husband when negotiations over child support broke down. The firm learned of its conflict of interest when the husband's attorney in the paternity action told the firm's family law attorney representing the mother that the firm's estate-planning department had done legal work for the husband. The firm immediately withdrew from representing the mother in the paternity suit. The firm wrote to the husband to state that because of the wife's estate plan, it believed it had an ethical obligation to disclose to the wife the existence, but not the identity, of the husband's illegitimate child, and said it would make this disclosure unless the husband did so himself by a date certain. The husband joined the firm as a third-party defendant in the paternity action to prevent the firm from making the disclosure. The Family Part denied the husband's requested restraints, but the Appellate Division reversed and remanded "for the entry of an order imposing preliminary restraints and for further consideration." The firm moved for leave to appeal that order.
Was the law firm permitted to disclose confidential information of one co-client to another co-client under N.J. Court Rules, RPC 1.6?
Under New Jersey's Rules of Professional Conduct (RPCs) for attorneys, a lawyer was required to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; and although an attorney was ethically bound by RPC 1.6(a) not to disclose a client's confidential communications, RPC 1.6 (c)(1) permitted an attorney to disclose confidential information to the extent the lawyer reasonably believes necessary "to rectify the consequences of a client's criminal, illegal, or fraudulent act in furtherance of which the lawyer's services have been used." The husband's deliberate omission of the existence of his illegitimate child during estate planning constituted a fraud on the wife in the preparation of her estate and he in effect used the firm's services to defraud her. With this, the court concluded that the firm was permitted to inform the wife of the existence of the illegitimate child.
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