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New Jersey Disciplinary Rules of Professional Conduct

Comment - Rule 1.6

The rule adopted here differs significantly from both the ABA Model Rule 1.6 and the Debevoise Committee recommendation.

(1) Affirmative Duty.

The Debevoise Committee intended this rule to impose an affirmative duty on the lawyer to speak out in regard to the enumerated contemplated acts of the client as opposed to the abrogation of the attorney-client privilege during an actual judicial proceeding where the lawyer is testifying. This conclusion is borne out by the comment of the ABA Commission on Evaluation of Professional Standards ("the Kutak Commission") (as adopted by the ABA), which explicitly distinguishes the limited historical context of the attorney-client privilege from the expanded context of the proposed rule:

The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

[ABA Comment to Model Rule 1.6.]

(2) Standard Governing Duty of Disclosure.

The Court in In re Selser, 15 N.J. 393, 406 (1954), held an attorney, who was a defendant in a criminal contempt proceeding, obligated to answer questions before a grand jury seeking to elicit information communicated to him by his client, since deceased, in furtherance of the client's purpose of obtaining advice as to the commission of continuing or prospective crime. The loss of the attorney-client privilege was predicated on the following standard articulated by Justice Cardozo in Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L. E d. 993, 1000 (1933):

"It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud." To drive the privilege away, there must be "something to give colour to the charge"; there must be "prima facie evidence that it hag some foundation in fact." When that evidence is supplied, the seal of secrecy is broken.

[(Citations omitted.) Quoted in In re Selser, supra, 15 N.J. at 402.)

The perception of this standard is keyed to the "reasonable lawyer" rather than the "reasonable person." See also RPC 4.1.