The "crime or fraud" exception to the attorney-client privilege represents a statutory recognition of a situation in which the purpose of the privilege would not be served by its enforcement. The exception encompasses a type of communication that is alien to the fundamental reasons that underlie the privilege. This exception under N.J. Stat. Ann. § 2A:84A-20(2)(a), N.J. Evid. R. 26(2)(a), provides that the privilege shall not extend to a communication in the course of legal service sought or obtained in aid of the commission of a crime or a fraud.
An accountant was appointed by the trial court to examine the financial affairs of the parties in a divorce proceeding. Defendant-husband was obligated to pay the accountant's fee. When the bill was submitted, the court contacted defendant's attorney requesting payment. Defendant's attorney informed the court that defendant had moved and although he had the address, he could not disclose it because it was given to him in confidence and was protected by attorney-client privilege under N.J. Stat. Ann. § 2A:84A-20, N.J. Evid. R. 26, and N.J. Ct. R., Code Prof. Conduct DR 4-101. The trial court ordered disclosure of the address and defendant's attorney appealed. The lower court affirmed the order and defendant sought further review.
Was the address in this case protected under the statutory attorney-client privilege?
The court held that the address was not protected under the statutory attorney-client privilege because the communication constituted fraud on the court, which fell within the crime or fraud exception to the privilege, and because the fraud exception applied to defendant's address, it was not a communication that could be protected as a confidence under N.J. Ct. R., Code Prof. Conduct DR 4-101.