The person asserting the attorney client privilege bears the burden to prove it applies to any given communication and to show that the consultation was a professional one. The sine qua non of the privilege is that the client has consulted the lawyer in the latter's capacity as an attorney. A communication is privileged only if it is expressed by an individual acting in his capacity as a client while seeking or receiving legal advice or services from an attorney while acting in his or her capacity as such. The privilege accords the shield of secrecy only with respect to confidential communications made within the context of the strict relation of attorney and client.
In this post-judgment collection matter, movant Edward P. McKenzie, a member of the bars of New Jersey, New York and South Carolina (movant), but neither a party nor attorney in the underlying action, appeals from an order denying his motion to quash a post-judgment discovery subpoena (subpoena). Plaintiff Horon Holding Corporation, the judgment creditor, sought to compel movant to answer questions concerning the whereabouts of his brother and sister-in-law, the judgment-debtors, defendants Kenneth and Barbara McKenzie (defendants; Kenneth; Barbara) in order to facilitate the enforcement of plaintiff's multi-million dollar judgments against them.
Movant contends that the motion judge erred in denying his motion to quash and in ordering him to answer such questions because he has previously represented defendants in other matters in both New York and New Jersey, any information they may have conveyed to him concerning their addresses is protected by the attorney-client privilege, and: (1) plaintiff failed to demonstrate the propriety of and need for movant's deposition under the standard set forth in Kerr v. Able Sanitary and Environmental Services, Inc., 295 N.J.Super. 147, 158-59, 684 A.2d 961 (App.Div.1996); and (2) the order compels movant to violate the privilege and the attorney ethics rules and laws of New Jersey, New York, and South Carolina.
Should counsel be compelled to disclose the whereabouts of his clients in the present case?
The appellate court held that the privilege was not absolute, and ceded under certain circumstances. Regardless of whether debtors' address had been conveyed in confidence, the privilege did not obtain because the shielding of that information to escape the enforcement of a money judgment mocked justice and constituted a fraud upon the court. An attorney's post-judgment disclosure of the clients' whereabouts to prevent a flouting of the court's judgment and order of enforcement did not constitute a violation of the attorney's duties of confidentiality because the communication could not be considered a confidence under the circumstances. Movant retained the burden of establishing that good cause existed for a protective order precluding his deposition and failed to carry that burden.