Fellerman v. Bradley

In Fellerman v. Bradley, 99 N.J. 493, 493 A.2d 1239 (1985), the Supreme Court of New Jersey examined whether the attorney-client privilege applied to disclosure of a fleeing defendant's address which was sought in order to enforce his financial obligations under a divorce judgment. 99 N.J. at 496, 493 A.2d 1239. The Court held under an appropriately "expansive reading" of the fraud exception to the privilege, N.J.S.A. 2A:84A-20(2)(a); Evid. R. 26(2)(a) (now N.J.R.E. 504(2)(a)), that regardless of whether the defendant's address had been conveyed in confidence, which was impossible to determine from the record, the privilege would not obtain in any event because such "a direct and clear impairment of the administration of justice" by the shielding of that information to escape the enforcement of a money judgment "mocked justice" and constituted a "fraud upon the court." Id. at 496-99, 503-07, 493 A.2d 1239. The Court also observed that as misleading, inconsistent, or deceitful attorney-client communications or conduct directed toward the court were not privileged, the attorney's post-judgment disclosure of the client's whereabouts to prevent his "flouting" of the court's judgment and order of enforcement could not constitute a violation of the attorney's duties of confidentiality under the precursor to RPC 1.6 because the communication could not be considered a confidence under those circumstances. Id. at 507-09, 493 A.2d 1239. The Court found "the inference of requisite duplicitous intent" to frustrate enforcement of the judgment by failing to disclose the defendant's whereabouts was "compelling," as it was clear that the defendant had requested his address be kept confidential and the conclusion that at least one of the motives for that request was to avoid compliance with the judgment was "virtually inescapable." Id. at 506, 493 A.2d 1239. Most significantly, the direct result of the defendant's express wishes and his attorney's steadfast adherence "would permit a party 'to mock justice' by ignoring both a judgment and a separate enforcement order of the Superior Court, with none of the policies underlying the rationale for protecting a client's secrets advanced in the process." Id. at 509, 493 A.2d 1239. Finally, the Court observed that the client could, of course, "fulfill his wish to remain undiscovered simply by paying the judgment." Id. at 507 n. 2, 493 A.2d 1239.