If an adverse party demands a lawyer's correspondence with his client, can the lawyer hand it over without the client's consent, and is the client's silence consent?

Plain-English summary

A lawyer who had represented a creditor in a bankruptcy matter (in which assets were distributed years earlier) was asked by an attorney representing adverse interests for copies of the correspondence between the lawyer and his client in that matter. The lawyer wrote to his client relaying the request and asking for consent, and noting that the adverse attorney intended to serve a subpoena duces tecum if the request was not met. He asked a series of questions about what to do if the client did not respond, treated the silence as consent, or directed him not to produce the letters, and whether he had to exhaust appellate procedures before complying with any order to produce.

The Committee grounded its answer in the attorney-client privilege, quoting its Opinion 116 and In re Selser, which traced the privilege as part of the common law designed to promote freedom of consultation, and explaining that protecting the client's confidences encourages full disclosure to counsel. It cited New York City Opinion 312, which advised that before disclosing such confidential information a lawyer should assert that it was received in confidence and then abide the determination of the tribunal to which the question is submitted. It also quoted In re Selser that, because the privilege is the client's, only the client may waive it, and the attorney called as a witness must assert the privilege unless the client has waived it, with the final determination of the privilege resting with the court.

Applying these principles, the Committee concluded that if the client failed to respond, his silence could not be construed as consent, and it would be improper to turn over copies of the correspondence with or without a subpoena. Absent a court order, it would also be a breach of ethics to produce the letters under subpoena and testify to their contents or submit them for copying without the client's consent, particularly if the client directed otherwise. The lawyer should assert the privilege until overruled by a court with jurisdiction; whether to take appellate procedures is a question of law for the attorney's prudent and reasonable judgment, bearing in mind his duty under Canon 15 to defend the privilege to the best of his ability.

Currency note

This opinion was issued in February 1969, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics (Canons 15 and 37) and the common-law privilege. It also predates the 1984 Rules of Professional Conduct and all later revisions. The duty of confidentiality is now treated under RPC 1.6, with the evidentiary attorney-client privilege governed by the rules of evidence. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer give an adversary his correspondence with his client if the client doesn't answer the request?

A: No. The Committee held the client's silence cannot be construed as consent, so it would be improper to turn over the correspondence, with or without a subpoena.

Q: Must the lawyer comply with a subpoena for the letters?

A: Not without the client's consent or a court order. The Committee held the lawyer must assert the privilege and should produce the letters only when overruled by a court with jurisdiction to decide the question.

Q: Does the lawyer have to appeal an order to produce before complying?

A: The Committee said whether to take appellate procedures is a question of law it would not decide; the lawyer must judge that prudently and reasonably, defending the privilege to the best of his ability.

Background and rules framework

The opinion applied the attorney-client privilege and Canons 15 and 37 of the Canons of Professional Ethics, drawing on In re Selser and New York City Opinion 312, to a demand for a lawyer's correspondence with his client. In current New Jersey terms, confidentiality is governed by RPC 1.6 and the evidentiary privilege by the rules of evidence.

Citations and references

Cases:

• In re Selser, 15 N.J. 393 (1954)
• State v. Tuscany, 13 N.J. 418 (1953)

Other authorities:

• Canons of Professional Ethics, Canons 15 and 37
• Assn. of the Bar, City of N.Y., Opinion 312
• NJ ACPE Opinion 116, 90 N.J.L.J. 688 (1967)

See also

• NJ ACPE Op. 163: Client Confidences and a Divorce Client's Adultery
• NJ ACPE Op. 535: Confidentiality and a Fraudulent Insurance Claim
• NJ ACPE Op. 585: Disclosure of Insurance Fraud

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp145-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

92 N.J.L.J. 97, February 13, 1969

OPINION 145

Privileged Communication Correspond with Client

A lawyer who represented a creditor of a bankrupt estate in which a distribution of the assets was made several years ago, had been asked by an attorney, who represented interests adverse to his client in the bankrupt estate, for copies of correspondence between him and his client in the bankruptcy matter. He wrote to his client informing him of the request and asking if he would consent to it. He also informed the client that the attorney intends to serve him (the client's attorney) with a subpoena duces tecum to produce the letters if he does not comply with the request. The inquirer poses the following questions which we quote verbatim:

In the event the client fails to respond to our letter, is it a breach of ethics to turn over copies of such correspondence without the issuance of a subpoena? May we treat the client's silence as consent? If the client directs us not to turn over copies of the letters, is it a breach of ethics to produce the letters under the subpoena and either to testify as to their contents or submit them for examination or copying? If directed by the presiding officer at a deposition hearing to produce and turn over the letters, are we required under the Canons of Ethics to exhaust appellate procedures before complying? If the attorney, upon our refusal obtains an oral instruction or written order from the Referee in Bankruptcy or from a District Court Judge, requiring us to testify as above indicated or to submit the letters for inspection or copying, are we either permitted or obliged to comply or must we first exhaust appellate procedures?

In our Opinion 116, 90 N.J.L.J. 688 (1967), we said:

The late Chief Justice Vanderbilt in In re Selser, 15 N.J. 393 (1954), traced the history of privileged communication between attorney and client, recognizing that this privilege is part of our common law. The principle was enunciated to promote freedom of consultation between an attorney and his client. To adequately protect a client's interests, an attorney should know all the relevant facts. If the client's confidences are not protected the client will have a tendency to withhold facts which may be detrimental to his cause. Thus these communications from attorney to client become privileged. The conclusion which we have reached is that the attorney client privilege is an important right to be safeguarded.

Opinion 312 of the Committee on Professional Ethics of the Association of the Bar, City of N.Y., concerned an attorney who had in his possession correspondence and documents received from a client. The question to be determined was whether the attorney, with professional propriety, could deliver the original documents to the authorities in another jurisdiction pursuant to their demand without the consent of his client. The Committee was of the opinion that before a lawyer disclosed such confidential information he should assert that it was received in confidence and then abide the determination of the tribunal to which the solution of the question was submitted by the statute.

In In re Selser, supra, the court said (at page 414):

Since the protection of the privileged communication is not for the attorney but rather for the client, not only may the client alone waive the privilege, ... but the attorney if called as a witness must assert the privilege where applicable, unless it has been waived by the client, Canons of Professional Ethics, 37; 58 Am. Jur. 259. The final determination of the existence of the privilege, however, rests with the court, and if it determines that the privilege does not exist then the attorney must testify as to the matters contained in the communication. State v. Tuscany, supra, 13 N.J. 418, 424 (1953).

In the light of the foregoing we are of the opinion that if the client fails to respond to the attorney's letter his silence cannot be construed as consent and it would be improper to turn over copies of the correspondence with or without a subpoena. Absent a court order, it would also, in our opinion, be a breach of ethics to produce the letters under the subpoena and either testify to their contents or submit them for examination or copying without the client's consent and particularly if the client directs the attorney not to turn over copies of the letters.

The lawyer-client privilege should be asserted by the attorney until overruled by a court with jurisdiction to determine the issue. The necessity of taking appellate procedures involves a question of law which we should not attempt to decide. This must be determined by the attorney by a prudent and reasonable interpretation of the applicable law, bearing in mind that he must defend the privilege to the best of his ability. As stated in Canon 15 he owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability."