47 N.Y.2d 215 | NY | 1979
Lead Opinion
OPINION OF THE COURT
On this appeal we direct our attention to the circumstances under which an attorney may be compelled on pain of contempt to disclose the address of his client notwithstanding a claim that such information was the subject of a privileged communication.
The tangled factual web which clothes this issue removing it from the abstract is drawn from a lengthy and heated proceeding in which respondents, the natural parents of Jacqueline F., have since 1974 unsuccessfully sought to obtain physical custody of their child. At the root of respondents’ struggle lies their voluntary placement of Jacqueline with her paternal aunt shortly after her birth in 1971 because of an illness suffered by the child’s mother. Upon the latter’s recovery, respondents sought the return of their child, but were denied this request by Jacqueline’s aunt. Thwarted in their efforts to obtain a voluntary return of Jacqueline, respondents commenced a proceeding in Family Court in 1975 for a writ of habeas corpus. Unbeknownst to respondents, however, the child’s aunt had obtained letters of guardianship over the child from the Surrogate’s Court. On the basis of these letters, appellant, an attorney representing the aunt, successfully moved to dismiss the petition on the ground that the Surrogate’s Court had exclusive jurisdiction over the matter.
Thereafter, respondents commenced a proceeding in the Surrogate’s Court to revoke the letters of guardianship. Although respondents’ first application was denied,
On November 25, 1977, the Appellate Division (59 AD2d 1064) unanimously affirmed the order of the Surrogate, resulting in the expiration of the stay granted pending appeal. A motion for leave to appeal to this court was denied on December 19. On the same day respondents commenced the instant proceeding in the Surrogate’s Court by order to show cause to hold Jacqueline’s aunt in contempt and to compel appellant to disclose her whereabouts. Although the court declined to hold the child’s aunt in contempt finding service of process improper, it did order appellant to disclose his client’s whereabouts. On appeal taken by appellant, the Appellate Division unanimously affirmed. We granted leave to appeal and a stay pending our determination. There should be an affirmance.
Since the reign of Elizabeth I, the law has as a matter of policy encouraged full disclosure between attorney and client. (See, generally, 8 Wigmore, Evidence [McNaughton rev, 1961], § 2290 [hereinafter Wigmore]; Richardson, Evidence [10th ed], § 410.) It has long been thought that persons in need of professional advice should not approach an attorney and disclose their problems in a manner tailored by a "fear that such facts will be made public to their disgrace or detriment by their attorney.” (Hurlburt v Hurlburt, 128 NY 420, 424.) Although fostered with an eye toward effectuation of a more orderly administration of justice through frank revelation of pertinent information (see People ex rel. Vogelstein v Warden of County Jail of County of N. Y., 150 Misc 714, 717, affd 242 App Div 611), the attorney-client privilege (CPLR 4503),
Looked at in this light, the question posed for resolution on this appeal is whether under the present circumstances the address of appellant’s client should be viewed as falling within the protective cloak of the attorney-client privilege. Only those communications made in confidence to an attorney for the purpose of seeking professional advice are afforded the stature of privileged communications. For this reason, it has been generally stated that inasmuch as a client’s identity is not relevant to advice proffered by an attorney, such communication is not privileged. (See Matter of Kaplan [Blumenfeld], 8 NY2d 214, 218; People ex rel. Vogelstein v Warden, 150 Misc, at p 719, supra; Fisch, New York Evidence, § 521; Disclosure of Name, Identity, Address, Occupation or Business of Client as Violation of Attorney-Client Privilege, Ann., 16 ALR3d 1047, 1051.) Justification for the same result has also been predicated upon the theory that the identity of a client must be disclosed to ensure that there exists an attorney-client relationship during the course of which privileged communications may be made. (See People ex rel. Vogelstein v Warden, 150 Misc, at p 718, supra.)
In discussing whether the attorney-client privilege insulates
In a similar vein, any party may during the course of pending litigation serve a demand upon another party to set forth that party’s address. (CPLR 3118.) Prior to the advent of the statutory authority for this relief, the common law similarly provided that an attorney could be ordered to disclose his or her client’s address during the pendency of an action to which the client was a party. (Markevich v Royal Ins. Co., 162 App Div 640; Richards v Richards, 64 Misc 285, affd 143 App Div 906; O’Connor v O’Connor, 62 Misc 53.) However, once the litigation had been terminated, a judgment rendered and the appellate process exhausted, an attorney’s lips were considered forever sealed. As was stated in Matter of Trainor (146 App Div 117, 120), "wherever the court has directed an attorney to disclose the address of his client it has been in the very action brought by his client during its pendency, while the relation of attorney and client still existed, and because of facts relating to that action which rendered the disclosure necessary, in the interest of justice, to protect the rights of the adverse party to the action. Furthermore, when the relation of attorney and client has ceased, the seal of confidence imposed by the original relation continues, and the attorney cannot
In the present case, the underlying proceeding during which appellant represented Jacqueline’s aunt terminated on December 19, 1977, when this court denied appellant’s client leave to appeal from the order of the Appellate Division affirming the Surrogate’s revocation of letters of guardianship. Although respondents were aware of the departure of appellant’s client to Puerto Rico prior to the decision of the Appellate Division, at no time did they move during the pendency of the appeal to compel disclosure of her new address. Inasmuch as respondents did not take advantage of this statutory avenue for disclosure of the desired information, we must decide whether an attorney may be compelled to disclose his client’s address in a subsequent, collateral proceeding by determining whether, under the instant facts, disclosure of this information would be inconsistent with the purpose of appellant’s representation. (Banco Brasileiro v Doe, 36 NY2d 592, 599, supra.)
In our view, the fact that respondents could have obtained the address of appellant’s client during the pendency of the underlying proceeding does not ipso facto mean that appellant may at this juncture be compelled to disclose this information. As indicated previously, the case law upon which CPLR 3118 would appear to be based did not hold that a client’s address is never privileged inasmuch as it is not evidentiary matter but, to the contrary, that although such information is privileged it must be disclosed in the course of a pending action where disclosure is necessary for the proper administration of justice. Similarly, we have only recently cautioned that a client’s identity, also nonevidentiary information, may be privileged where disclosure might be inappropriate because inconsistent with the trust and duty assumed by an attorney. (Id.) Thus, where there exists a lawful purpose for confidential communication between attorney and client (see, e.g., Matter of Kaplan [Blumenfeld], 8 NY2d 214, supra), even the client’s identity may be privileged. For this reason, we do not find CPLR 3118, authorizing a party’s demand of another party’s address during the pendency of an action, dispositive of the question before us.
Of course to be distinguished from the present case are those situations in which a communication by a client to an attorney is made with the expectation that this information will be kept confidential for a legitimate purpose. For example, occasions in domestic relations matters certainly exist in which a client may legitimately fear reprisals by his or her spouse and, therefore, request of an attorney that an address remain confidential. (See Taylor v Taylor, 45 Ill App 3d 352; Waldmann v Waldmann, 48 Ohio St 2d 176; cf. Matter of Kaplan [Blumenfeld], 8 NY2d 214, supra.) Unlike justification provided by a fear of reprisals, appellant’s client would appear to have kept secret her address for one purpose only: to thwart the mandate of the court’s judgment awarding respondents custody of Jacqueline. (Cf. Richards v Richards, 64 Misc
Accordingly, the order of the Appellate Division should be affirmed, without costs.
. The prior application was denied without prejudice to renewal of the application at a future date when the stability of respondents’ family life could be more clearly demonstrated.
. "(a) Confidential communication privileged; non-judicial proceedings. Unless the client waives the privilege, an attorney or his employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his employee and the client in the course of professional
Concurrence Opinion
(concurring). I agree that there should be an affirmance. Although I concur in the result, I would rely on an analysis different from that of the courts below. In sum, in my view neither the evidentiary privilege against disclosure of confidential communications between client and attorney nor the ethical injunction against such revelations has any application in this case. The issue here falls into a different category of legal reference.
A uniform line of cases has recognized the right of the courts in pending litigation to direct an attorney representing one of the parties to that litigation to reveal his client’s address. (E.g., Markevich v Royal Ins. Co., 162 App Div 640, 641 ["The professional privilege of the attorney cannot avail against giving the address of his client”]; Matter of Trainor, 146 App Div 117, 119 ["the court has the right during the pendency of the action to direct the plaintiff’s attorney to disclose the client’s address, while the relation of attorney and client actually exists”]; Richards v Richards, 64 Misc 285; Post v Scheider, 13 NYS 396; Corbett v De Comeau, 13 Jones & Sp 637; 99 Plaintiffs v Vanderbilt, 4 Duer 632.)
The principle behind the holdings in these cases is now reflected in the provisions of the Civil Practice Law and Rules. CPLR 3118 provides in pertinent part: "A party may serve on any party a written notice demanding a verified statement setting forth the post office address and residence of the party * * * The demand shall be complied with within ten days of its service.”
The determinative consideration is the obligation of any party to a litigation, for the benefit of the court in which that litigation is pending, as well as for the benefit of the other parties thereto, to keep the court and the parties informed as to his address. This obligation is unrelated to the substantive issues raised in the litigation. As a matter of evident practicality, if the objective of the litigation is to be achieved, the dispute between the parties resolved, and the adjudication of the court enforced, it is necessary to know how the parties may be located.
In my analysis, therefore, inasmuch as a party may be compelled to disclose his address to facilitate the conduct of the litigation in which he is involved, there would appear to be no reason why the representative and agent of that party in the same litigation, with no independent personal interest in the matter, should not likewise be directed to disclose the address if it is known to him. And this is what the cases cited above have recognized.
The obligation to disclose the address exists entirely without regard to the existence of any evidentiary privilege under CPLR 4503 (subd [a]). The data sought — the address of one of the parties to the pending judicial proceeding — does not properly come within the classification of evidence, nor does it have any of the characteristics of evidentiary proof. Thus, it has no relevance to the fact-finding aspect of the litigation; it will not in any way affect the determination on the merits of the controversy between the litigants. In this instance the legal contest with respect to the right to the custody of Jacqueline F. was resolved by the Surrogate’s decree of July 1, 1977, thereafter affirmed at the Appellate Division. The present proceedings are not directed to and have no bearing on the making of that determination. Indeed, it would be the most unusual case in which the address of a party would ever be relevant to the substantive issues in an action. The address is sought here only to facilitate enforcement of the court’s
Enforcement of a judgment against the losing party is however an integral, ancillary part of the litigation in chief and steps looking toward enforcement are regarded as a part of the litigation itself. Until enforcement has been effected the litigation has not concluded. Thus, the various procedures and tools provided by CPLR article 52 for collection of money judgments from unsuccessful litigants are not independent actions but are only adjuncts to, and bear the title of, the civil actions whose judgments they seek to effectuate (Siegel, General Commentary on Article 52 and Practice Commentaries to CPLR 5222, 5225, 5226, McKinney’s Cons Laws of NY, Book 7B, pp 45-46, 184, 242, 259). The remedy of punishment for civil contempt arising out of nonperformance of a judgment (CPLR 5104) or of noncompliance with a device in aid of enforcement of a money judgment (CPLR 5251) is obtained by the procedure applicable to a motion in the civil action from which the judgment emerged (Judiciary Law, § 756).
In this circumstance, I must reject the majority’s premise that the underlying custody proceeding in which appellant attorney represented Jacqueline’s aunt "terminated on December 19, 1977, when this court denied appellant’s client leave to appeal from the order of the Appellate Division affirming the Surrogate’s revocation of letters of guardianship” (p 221). The present application, in aid of enforcement of the final determination in the custody proceeding, was initiated by order to show cause in that proceeding. Relief of two sorts was sought: — first by way of punishment for contempt of the party (dismissed for failure to effect sufficient service on her), and second a direction to her attorney to disclose the client’s address. The particular relief can only be regarded as incidental to the custody proceeding. Even if it be taken, as urged by the majority, that the attorney-client privilege does not shelter the client’s communication, while that position would deny the attorney the right to refuse disclosure if he were directed to furnish the information, it provides no authority for the demand that he furnish the address in the first place. This is not an instance where an attorney on the witness stand refused to divulge the address under a claim of privilege and the authority for asking the question was associated with the right to interrogate the witness. In this instance, the direction was made by the court
If, as I think, an attorney may be compelled on this analysis to disclose his client’s address to further the conduct of the judicial proceedings in ordinary litigation, how much more important and necessary it is when the issue in controversy is custody of a child. In such a case, in view of the special role and responsibility of the court to protect and advance the interests of the child, the court probably has a greater interest in enforcing prompt and full obedience to its directives than in any other class of case. (Cf. Tierney v Flower, 32 AD2d 392; Falkenhainer v Falkenhainer, 198 Misc 29.)
For the reasons stated, the order of the Appellate Division should be affirmed.
As to the availability of this disclosure provision after trial see CPLR 3102 (subd [d]).
Dissenting Opinion
(dissenting). In my view, this is an instance in which what the court conceives to be a hard case is leading it into making bad law. That is especially regrettable because, doing so, its determination necessarily impinges on the very valuable, and what should be unassailable, attorney-client privilege on which in large measure the effectiveness of the right to counsel, and, in turn, a panoply of other deeply rooted political and social rights so heavily depend (People v Garofolo, 46 NY2d 592, 599).
The policy on which rests the guarantee of confidentiality of communication between lawyer and client is very demanding in the protections it affords the client. That its enforcement at times may frustrate the administration of justice will not suffice alone to allow for its breach; indeed, its very purpose may be to keep secure the imparting of information which the State would, if known to it, use to its advantage (People v Belge, 83 Misc 2d 186, affd 50 AD2d 1088, affd 41 NY2d 60).
In serving the rights of the parties to particular proceedings. the privilege also supports the proper functioning of our adversary system as a whole. To that end, a lawyer is en
True, as with most rules, there are exceptions. Matters a client does not intend to be confidential, of course, by very definition, are not protected. And, where the confidence is received by the attorney in order to advance a criminal or fraudulent purpose, as when he aids and advises in the perpetration of an unlawful act, it is dehors the privilege (People ex rel. Vogelstein v Warden, 150 Misc 714, affd 242 App Div 611; Flower v Tierney, 32 AD2d 392; Uniform Rules of Evidence, rule 26, subd [2], par [a]). But, since unjustified intrusions into communications with lawyers are to be avoided, there must be proof positive of an unlawful purpose before the confidence can be so invaded (see Clark v United States, 289 US 1, 15; Conveney v Tannahill, 1 Hill 33).
In the present case, it is undisputed that the client’s address was imparted in the course of the professional relationship; indeed, the client expressly enjoined her counsel to secrecy. Also unchallenged is that its sole, proper and even desirable purpose was to keep the lawyer posted as to where he could reach his client. Under these conditions, courts have held the address of a client to be privileged information (Hyman v Corgil Realty Co., 164 App Div 140; Matter of Trainor, 146 App Div 117; Brooklyn Sav. Bank v Park Slope Realty Corp., 146 Misc 4; Matter of Stolar, 397 F Supp 520). Far from giving even the slightest hint that the attorney either assisted in planning the aunt’s departure to a new location or, for that matter, had any advance notice of it at all, the Surrogate went out of his way to commend counsel, who served in the case at the behest of a publicly funded legal services agency, for reflecting credit on himself and the legal profession in the way in which he carried out his professional responsibilities. Further, the record affirmatively shows that the attorney first learned that his client had vacated her Bronx apartment
Obviously, the ability of an attorney and a client to communicate with one another is an essential adjunct to the exercise of the right to counsel. Without a means by which a client may solicit and receive advice, and an attorney transmit it, the right may be an empty one. It follows that arrangements between the two, if proper in other respects, are not subject to invasion merely because that might, as here, make easier the execution of a judgment of a court, or, by way of further example, even the apprehension of a fugitive from justice,
Not only policy, but practical considerations interdict such an exclusion from the embrace of the privilege. For a different rule would be counterproductive. Bad enough that it would thwart rather than encourage resort to counsel, once it becomes known that the address of a client is not protected by the privilege, it may be expected that, thereafter, when a client wishes an address withheld, it rarely would be found within the ken of the lawyer. The result of such a narrowing of the privilege, therefore, would in all likelihood not be to open up a source of information but to close down the channel of communication by which, for instance, a lawyer may now be able to negotiate the surrender of a client to the authorities.
Cases requiring lawyers to disclose the names of their clients are not analogous. Such decisions in the main are premised on either the principle that every litigant is entitled to know his opponent or the fact that the information is essential to the preliminary determination of the very existence of an attorney-client relationship (see, e.g., 8 Wigmore, Evidence [McNaughton rev, 1961], § 2313; Harriman v Jones, 58 NH 328). Clearly, these arguments have no force here; neither the client’s identity nor the existence of the relationship has ever been in doubt.
Nor does CPLR 3118 permit a breach of the privilege. That section, in existence in its present form only some 15 years, is, purely and simply, a discovery device. In establishing a procedure for obtaining an opposing party’s address, it provides for the making of a demand which, though it would customarily be addressed to the lawyer as the litigation agent for his client, is substantively one made on the client precisely as is a demand for a bill of particulars, a notice to take a deposition,
Nothing in the wording of the statute, in standard New York practice treatises or in the placement of the statute amongst the discovery sections of the Civil Practice Rules casts even the slightest doubt on these observations (see Siegel, New York Practice, § 365; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3118.02; McKinney’s Cons Laws of NY, CPLR, Book 7B, 3118). Language seemingly to the contrary in some of the cases is often found on analysis not to have been the result of a probing of the range of the privilege and is therefore not authoritative (see, e.g., Corbett v De Comeau, 13 Jones & Sp 637; Post v Scheider, 13 NYS 396).
All of which leads me to believe that there was no reason to place the appellant attorney in the draconian dilemma of either violating his trust or being held in contempt. Above all, his client and all clients must know that in seeking the protection of their rights under law, they may freely confide in members of the Bar. Accordingly, I would reverse the order of the Appellate Division and dismiss the petition.
Chief Judge Cooke and Judges Gabrielli and Wachtler concur with Judge Jasen; Judge Jones concurs in a separate opinion; Judge Fuchsberg dissents and votes to reverse in another opinion.
Order affirmed.