Does the attorney-client privilege bar a lawyer from disclosing facts about a client's immigration status that the lawyer learned in the engagement?

Plain-English summary

A Spanish-speaking foreign national consulted an attorney about federal income tax matters, with a companion to act as interpreter and agent for mail. After the initial consultation the companion returned, asked for the client's papers back, and explained that the client had revealed he was an alien unlawfully present in the United States and feared the tax steps would expose his status and lead to arrest and deportation. The attorney returned the papers and was told to forget the matter. The attorney asked whether, where reliable but not conclusive information is disclosed that a client is committing a crime unrelated to the matter for which he was consulted, the lawyer is bound to disclose it to the authorities.

The Committee framed this as the familiar tension between full disclosure in the interests of justice and the duty to maintain client confidences, citing its Opinion 116. It noted that the lawyer-client privilege is statutory (Evidence Act Rule 26, N.J.S. 2A:84A-20), which excepts a communication made in the course of legal service sought or obtained to commit a crime or fraud, and that DR 4-101(C)(3) permits a lawyer to reveal a client's intention to commit a crime and the information necessary to prevent it. Drawing on Drinker, the Committee distinguished confidences about a crime already committed from a continuing or future crime, and noted the privilege is generally not lost by communication through a third party acting as a friend. Although unlawful presence was not a crime in the usual sense, it violated federal law (8 U.S.C. 1251) and could be considered at least a fraud on the United States. Assuming the presence was in fact illegal and therefore a continuing fraud, the Committee concluded that if the attorney were asked about facts bearing on the client's continued illegal presence, he was not prevented from disclosing them by the attorney-client privilege.

Currency note

This opinion was issued in 1972, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. Lawyer confidentiality is now governed by RPC 1.6, whose duty is broader than the evidentiary privilege the opinion discussed and whose exceptions differ materially from the DR 4-101 framework applied here. The opinion's characterization of a client's immigration status reflects 1972 law and should not be read as a current statement of either confidentiality duties or immigration law. Treat this page as historical context, not current guidance. Verify against current rules before relying on anything stated here.

Common questions

Q: Did this opinion require the lawyer to report the client?

A: No. The Committee addressed only whether the privilege barred disclosure if the lawyer were asked; it concluded the privilege did not bar disclosure of facts about the continued unlawful presence, which it treated as a continuing fraud.

Q: What was the basis for finding the privilege did not apply?

A: The statutory crime-or-fraud exception to the lawyer-client privilege (Evidence Act Rule 26, N.J.S. 2A:84A-20) and DR 4-101(C)(3), read with the distinction between a completed crime and a continuing one.

Q: Does returning the client's papers or using an interpreter change the privilege analysis?

A: The Committee noted the privilege is generally not affected by communication through a third party acting with the lawyer as a friend of the client.

Background and rules framework

The opinion turned on the interaction of the statutory lawyer-client privilege and the Disciplinary Rules on confidences (DR 4-101). In current New Jersey terms, a lawyer's confidentiality duty is governed by RPC 1.6, which is distinct from, and broader than, the evidentiary privilege discussed in the opinion.

Citations and references

Rules of Professional Conduct:

• DR 4-101 (confidences and secrets), as in effect 1972; now MR 1.6 / NJ RPC 1.6

Statutes:

• Evidence Act, Rule 26, N.J.S. 2A:84A-20 (lawyer-client privilege and its crime-or-fraud exception)
• 8 U.S.C. 1251 (unlawful presence, as cited in the opinion)

Other opinions cited:

• NJ ACPE Opinion 116, 90 N.J.L.J. 688 (1967): conflicting policies of disclosure and confidence

See also

• NJ ACPE Op. 246: Changing Sides After Consulting an Adversary
• NJ ACPE Op. 275: Spousal Confidences in a Later Divorce

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp247-1.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.

95 N.J.L.J. 1271, December 7, 1972

OPINION 247

Attorney-Client Privilege Alien Illegally in United States

An attorney asks for advice regarding the attorney client privilege in the following situation.

A Spanish-speaking foreign national came to the attorney's office with another person seeking advice concerning certain federal income tax matters. The client stated that the person accompanying him would be his interpreter agent for the receipt of mail and the conduct of any other business which might be required in the course of the relationship between the attorney and the client. Despite the professed lack of fluency in the English language, the initial consultation took place between the attorney and the client alone. At the end of the conference, the client left and shortly thereafter the person who had accompanied him returned to the attorney's office and requested the return of the client's papers. He stated that the client had just disclosed to him that he was an alien illegally present in the United States and feared that the steps to be taken in the income tax matter would result in his status being discovered and his consequent arrest and deportation. Accordingly, he had directed this person to recover his papers and terminate the attorney's employment. The attorney complied with the request and returned all the papers. The client's friend suggested to the attorney that he "forget about the whole thing."

The attorney presents his question as follows:

The specific question to which this inquiry is addressed is whether an attorney to whom reliable, but not conclusive, information is disclosed to the effect that a client is committing a crime, which offense was not the subject matter out of which the attorney client relationship arose, is bound by the rules to disclose such information to the appropriate authorities for investigation.

This inquiry presents the familiar conflict of two opposing policies of law, one calling for full disclosure of all facts in the interests of justice, and the other requiring the attorney to maintain the confidences of his client. For a discussion and treatment of these conflicting policies, see our Opinion 116, 90 N.J.L.J. 688 (1967).

The lawyer client privilege is a part of our statutory law. Paragraph (2) of Rule 26 of the Evidence Act, N.J.S. 2A:84A-20, sets forth exceptions to the privilege, one of which is that the privilege does not apply to a communication in the course of legal service sought or obtained for the commission of a crime or fraud.

DR 4-101 of the Code of Professional Responsibility of the American Bar Association also deals with the preservation of the confidences of a client. Paragraph (C) sets forth the exceptions to the general rule and Subparagraph (3) provides that an attorney may reveal the intention of his client to commit a crime and the information necessary to prevent the crime. As Drinker points out in Legal Ethics 138 (1953) there is a distinction to be made between confidences conceding a crime already committed and confidences with respect to a continuing crime or one to be committed.

Finally, it should be observed that the privilege generally is not affected by the presence of or communication to a third party acting with the lawyer as a friend of the client. Drinker, at 135.

As the attorney making the inquiry points out, the illegal presence of a client in the United States is not a crime in the usual sense under either state or federal law. Such presence is, however, a violation of federal law (8 U.S.C. 1251) and may subject him to imprisonment under section 1252 while his status is being determined. It may, therefore, be considered at least a fraud on the United States.

For purposes of our opinion, we assume that the presence of the client in the United States is, in fact, illegal. It is a continuing fraud on the United States. Accordingly, should inquiry be made of the attorney as to any facts known by him which would bear on the question of the continued illegal presence of his client in this country, he is not prevented from disclosing such facts by the attorney-client privilege.