New Jersey Legal Ethics
1.6 Rule 1.6 Confidentiality of Information
1.6:100 Comparative Analysis of New Jersey Rule
• Primary New Jersey References: NJ Rule 1.6
• Background References: ABA Model Rule 1.6, Other Jurisdictions
• Commentary:
• NJ Commentary:
1.6:101 Model Rule Comparison
RPC 1.6(a) is identical to ABA Model Rule 1.6(a), except that the Model Rule lacks a cross-reference to paragraph (c). See ABA Model Rules of Professional Conduct Rule 1.6(a) (1989).
RPC 1.6(b) differs markedly from Model Rule 1.6, which merely permits disclosure “to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm.” ABA Model Rules of Professional Conduct Rule 1.6(b)(1) (1989). New Jersey’s paragraph (b) of RPC 1.6 contains mandatory exceptions to the confidentiality obligation, mandating disclosure “to prevent the client (1) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another; (2) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal.” New Jersey’s RPC 1.6(c) contains discretionary exceptions. Model Rule 1.6 has only discretionary exceptions, all of which are included in the Model Rule’s paragraph (b); there is no paragraph (c) in the Model Rule. Unlike New Jersey’s RPC 1.6, Model Rule 1.6 does not require disclosure under any circumstances.
Note that RPC 1.6(c)(3) permits a lawyer to reveal protected information about a client to the extent the lawyer reasonably believes necessary “to comply with other law.” The Debevoise Committee recommended the adoption of this provision, which at the time was included in Model Rule 1.6(b). See Debevoise Committee Report, 112 N.J.L.J., July 28, 1983. The subsection has since been deleted from the Model Rule. See id. at 9-10; ABA Model Rules of Professional Conduct Rule 1.6 (1989).
1.6:102 Model Code Comparison
There is no direct counterpart in the New Jersey RPCs.
1.6:200 Professional Duty of Confidentiality
• Primary New Jersey References: NJ Rule 1.6
• Background References: ABA Model Rule 1.6, Other Jurisdictions
• Commentary: ABA/BNA § 55:101, ALI-LGL §§ 111-117A, Wolfram §§ 6.1, 6.7
• NJ Commentary: Section 15:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)
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1.6:210 Definition of Protected Information
The New Jersey Supreme Court has observed that RPC 1.6 “expands the scope of protected information to include all information relating to the representation, regardless of the source or whether the client has requested it be kept confidential or whether disclosure of the information would be embarrassing or detrimental to the client.” In re Advisory Opinion No. 544 of N.J. Sup. Court, 103 N.J. 399, 406 (1986).
The range of information protected by the confidentially requirement is broad: it extends from substantive information relating to the representation to information that merely identifies the client, such as the client’s name and address. For an example of a substantive disclosure covered by RPC 1.6, see Advisory Comm. Op. 673 (Feb. 7, 1994). In that opinion, an attorney represented a defendant in a DWI prosecution. The client told the lawyer the exact number of drinks he had consumed prior to the accident that resulted in his arrest. The Committee concluded that this information fell within the protective scope of RPC 1.6(a).
1.6:220 Lawyer's Duty to Safeguard Confidential Client Information
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1.6:230 Lawyer Self-Dealing in Confidential Information [see also 1.8:300]
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1.6:240 Use or Disclosure of Confidential Information of Co-Clients
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1.6:250 Information Imparted in Lawyer Counseling Programs
With respect to pro bono representations, see Advisory Comm. Op. 671 (Apr. 5, 1993), ruling that a lawyer who provides legal advice to women at a non-profit center for victims of domestic violence enters into an attorney-client relationship with each recipient of advice and must preserve the confidentiality of any information disclosed by them. In Advisory Comm. Op. 529 (Apr. 12, 1984), the Committee reached the same conclusion with respect to the attorneys employed by a legal aid office handling pro bono landlord-tenant matters. See also In re Advisory Opinion No. 544 of N.J. Sup. Court, 103 N.J. 399, 404 (1986), stating that “indigent, needy, or otherwise eligible clients, assisted by attorneys without fees, are entitled to the same protections as clients who retain private counsel.” See Section 15:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.6:260 Information Learned Prior to Becoming a Lawyer
Any information disclosed by a client or a prospective client in the course of or in contemplation of an attorney-client relationship will likely be protected under RPC 1.6(a). See Herbert v. Haytaian, 292 N.J. Super. 426, 436 (App. Div. 1996). See Section 15:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.6:300 Exceptions to Duty of Confidentiality--In General
• Primary New Jersey References: NJ Rule 1.6
• Background References: ABA Model Rule 1.6, Other Jurisdictions
• Commentary: ABA/BNA § 55:101, ALI-LGL §§ 111-117A, Wolfram §§ 6.4, 6.7
• NJ Commentary:
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1.6:310 Disclosure to Advance Client Interests or with Client Consent
RPC 1.6(a) permits a lawyer to reveal protected information if the client consents after consultation.
1.6:320 Disclosure When Required by Law or Court Order
The Advisory Committee has indicated that a law must specifically require client information before an attorney’s disclosure of that information will fall within the scope of this exception. See In re Advisory Opinion No. 544 of N.J. Sup. Court, 103 N.J. 399, 410 (1986). See Section 15:3-4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.6:330 Disclosure in Lawyer's Self-Defense
The New Jersey Supreme Court recognized in Circle Chevrolet v. Giordano, Halleran & Ciesla, 142 N.J. 280, 292 (1995) that RPC 1.6(c)(2) allows a lawyer “to reveal confidences in order to establish a defense to a legal malpractice claim by the client.” Nevertheless, the New Jersey Supreme Court cautioned that an attorney faced with a malpractice claim “is not free to divulge all confidences.” Id. at 293. The New Jersey Supreme Court reasoned that the language of RPC 1.6(c) allows disclosure only to "the extent necessary," and stated that "a lawyer sued for malpractice is obliged to `make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or other arrangements minimizing the risk of disclosure.’” Id. (quoting ABA Model Rules of Professional Conduct Rule 1.6 comment (1989)). See Section 15:3-4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.6:340 Disclosure in Fee Dispute
RPC 1.6(c)(2) authorizes an attorney to reveal client information to the extent reasonably necessary to establish a claim of the lawyer. See Advisory Comm. Op. 365 (Apr. 7, 1977), holding that an attorney could offer as evidence in a fee claim the client’s misrepresentations to the attorney about the nature of the case, as well as the client’s admission to a third party that he had misrepresented a key fact in order to induce the attorney to accept the case on a contingent-fee basis. The lawyer alleged that he would not have agreed to a contingent fee if he had been informed by the client of the truth. The Advisory Committee decided Opinion 365 under DR 4-101(C)(4), which allowed a lawyer to reveal confidences or secrets of a client to the extent “necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.” See Section 15:3-4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.6:350 Disclosure to Prevent a Crime
RPC 1.6(b) provides for mandatory disclosure of protected information in two circumstances: (1) to prevent the client “from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another”; and (2) to prevent the client “from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal.”
See Advisory Comm. Op. 677 (Oct. 10, 1994), observing that of the states that have adopted a version of the Model Rules, only New Jersey and Pennsylvania require the disclosure of protected information to prevent the commission of a criminal, illegal, or fraudulent act.
The rule has no application, however, to past or completed illegal, criminal, or fraudulent activity. See Advisory Comm. Op. 664 (July 13, 1992). The rule applies only if disclosure is necessary to prevent a threatened crime, fraud, or other illegal act. Thus, in Opinion 664, the Advisory Committee held that a lawyer who represented a corporation in collection matters had no duty under RPC 1.6(b)(1) to reveal information related to him by the corporation’s credit manager about the corporation’s past involvement in alleged criminal and fraudulent activities. Similarly, in Advisory Comm. Op. 642 (Apr. 26, 1990), the Committee concluded that RPC 1.6 imposed no obligation on a lawyer to disclose that his client had previously obtained an insurance policy based on false representations. But cf. Advisory Comm. Op. 586 (Apr. 24, 1986). See Section 15:3-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.6:360 Disclosure to Prevent Death or Serious Bodily Injury
See Section 1.6:350 above.
1.6:370 Disclosure to Prevent Financial Loss
As noted in Section 1.6:350 above, RPC 1.6(b) provides for mandatory disclosure of protected information in two circumstances. RPC 1.6(c) permits, but does not require, an attorney to reveal confidential client information to the extent 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.” In A. v. B., 158 N.J. 51, 58-59 (1999), the New Jersey Supreme Court broadly construed the term “fraudulent act” within RPC 1.6 so that in connection with their joint preparation of an estate plan a husband’s deliberate failure to disclose to this wife the existence of his illegitimate child constituted a fraud on his wife. The New Jersey Supreme Court concluded that, in effect, the husband used the law firm’s services to defraud this wife in the preparation of her estate. The New Jersey Supreme Court held that disclosure of the fraud was permitted under RPC 1.6(c). The New Jersey Supreme Court did not decide whether disclosure was required under RPC 1.6(b) because the law firm in question wished to make the disclosure of the existence of the illegitimate child to the wife. Id. at 66.
1.6:380 Physical Evidence of Client Crime [see 3.4:210]
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1.6:390 Confidentiality and Conflict of Interest
The conflict rules are designed to limit the risk that client information may be wrongfully disclosed in a representation. If an attorney is privy to the confidences of two clients with adverse interests, the risk is considerable that the confidentiality of at least one client’s communications will be compromised.
In A. v. B., 158 N.J. 51,61 (1999), the New Jersey Supreme Court recommended that any attorney commencing a joint representation “agree explicitly ... on the sharing of confidential information” between the co-clients. Such an agreement would either permit or prohibit the sharing of such confidential information, regardless of the source. See Section 17:1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.6:395 Relationship with Other Rules
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1.6:400 Attorney-Client Privilege
• Primary New Jersey References: NJ Rule 1.6
• Background References: ABA Model Rule 1.6, Other Jurisdictions
• Commentary: ABA/BNA § 55:301, ALI-LGL §§ 118-128, Wolfram §§ 6.3-6.5
• NJ Commentary: Section 15:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)
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1.6:410 Privileged Communications
New Jersey Evidence Rule 504(1) provides that “communications between lawyer and his client in the course of that relationship and in professional confidence” are privileged. When the Debevoise Committee recommended the adoption of the RPCs, it noted that the protection afforded to clients by RPC 1.6(a) “goes beyond information subject to the attorney-client privilege applicable in judicial and other proceedings.” Similarly, in its explanatory comments accompanying the adoption of the RPCs, the New Jersey Supreme Court “distinguishe[d] the limited historical context of the attorney-client privilege from the expanded context of the proposed [ethics] rule.” Rules of Professional Conduct, 114 N.J.L.J., July 19, 1984, supp. at 3. And see Advisory Comm. Op. 677 (Oct. 10, 1994), stating that while RPC 1.6(a) has its roots in the attorney-client privilege, it represents a significant departure from the traditional parameters of that evidentiary rule; Advisory Comm. Op. 673 (Feb. 7, 1994), observing that the attorney-client privilege and the ethics rules concerning confidentiality are two separate but related bodies of law.
1.6:420 Privileged Persons
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1.6:430 Communications "Made in Confidence"
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1.6:440 Communications from Lawyer to Client
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1.6:450 Client Identity, Whereabouts, and Fee Arrangements
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1.6:460 Legal Assistance as Object of Communication
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1.6:470 Privilege for Organizational Clients
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1.6:475 Privilege for Governmental Clients
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1.6:480 Privilege of Co-Clients
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1.6:490 Common-Interest Arrangements
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1.6:495 Duration of Attorney-Client Privilege
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1.6:500 Waiver of Attorney-Client Privilege
• Primary New Jersey References: NJ Rule 1.6
• Background References: ABA Model Rule 1.6, Other Jurisdictions
• Commentary: ABA/BNA § 55:401, ALI-LGL §§ 128-130, Wolfram § 6.4
• NJ Commentary:
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1.6:510 Waiver by Agreement, Disclaimer, or Failure to Object
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1.6:520 Waiver by Subsequent Disclosure
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1.6:530 Waiver by Putting Assistance or Communication in Issue
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1.6:600 Exceptions to Attorney-Client Privilege
• Primary New Jersey References: NJ Rule 1.6
• Background References: ABA Model Rule 1.6, Other Jurisdictions
• Commentary: ABA/BNA §§ 55:901 et seq., ALI-LGL §§ 131-135, Wolfram §§ 6.4
• NJ Commentary:
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1.6:610 Exception for Disputes Concerning Decedent's Disposition of Property
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1.6:620 Exception for Client Crime or Fraud
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1.6:630 Exception for Lawyer Self-Protection
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1.6:640 Exception for Fiduciary-Lawyer Communications
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1.6:650 Exception for Organizational Fiduciaries
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1.6:660 Invoking the Privilege and Its Exceptions
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1.6:700 Lawyer Work-Product Immunity
• Primary New Jersey References: NJ Rule 1.6
• Background References: ABA Model Rule 1.6, Other Jurisdictions
• Commentary: ABA/BNA § 91:2201, ALI-LGL §§ 136-142, Wolfram § 6.6
• NJ Commentary:
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1.6:710 Work-Product Immunity
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1.6:720 Ordinary Work Product
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1.6:730 Opinion Work Product
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1.6:740 Invoking Work-Product Immunity and Its Exceptions
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1.6:750 Waiver of Work-Product Immunity by Voluntary Acts
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1.6:760 Waiver of Work-Product Immunity by Use in Litigation
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1.6:770 Exception for Crime or Fraud
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