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Attorney-Client Privilege and Duty of Confidentiality

The attorney-client privilege entitles a client to refuse to testify and prevent his or her attorney from testifying in court regarding communications between them. It also applies to confidential communications made by an individual to an attorney who is sought out for the purpose of obtaining legal advice. In order to be privileged, the communication must be between the client and the attorney for the purpose of obtaining legal advice and with the expectation the communication would remain private. Disclosure of such communications to or in the presence of third parties destroys the confidential nature of the communication and renders such communications non-privileged.

The attorney-client privilege can also be waived by any of the following acts:

(i) Failure to claim the privilege;

(ii) Voluntary disclosure of the privileged matter by the privilege holder; or

(iii) A contractual provision, waiving the privilege in advance.

The attorney-client privilege applies only to communications made during the course of the relationship and covers only the attorney's formal testimony, whereas the duty of confidentiality protects against disclosure of any and all information related to the representation of the client, however and whenever derived. The duty of confidentiality even applies after the lawyer-client relationship has terminated.

Exceptions to the duty of confidentiality are as follows:

(i) The client consents after consultation;

(ii) Such disclosure is impliedly authorized in order to carry out the representation;

(iii) The lawyer reasonably believes it is necessary to prevent the client from committing a crime likely to result in death or substantial bodily harm;

(iv) Disclosure is required by a final order of the court, the ethics rules, or certain statutes;

(v) Disclosure is necessary to collect a fee or protect the lawyer's representation.

In Trilogy Communications, Inc. v. Excom Realty, Inc., 279 N.J. Super. 442 (Law Div. 1994), the defendant objected to the admission of an unsigned draft letter from its attorney addressed to the plaintiff's attorney, arguing the letter was inadvertently delivered to the plaintiff with other discovery documents and constituted a privileged attorney-client communication that had not been waived. The court held that the privilege belonged to the defendant as the client and had to be waived by the defendant. The court further found there was no authorized or voluntary, intentional, deliberate relinquishment or abandonment of the attorney-client privilege by the defendant. Moreover, the court held that "the negligence-free client, whose privilege it is in all events, should not bear the burden of global loss of an expectation of confidentiality because the attorney's negligence in protecting that confidentiality." Id. at 447.

The Supreme Court held in Stengart v. Loving Care Agency, 201 N.J. 300, 321-325 (2010) that the attorney-client privilege applies to communications made by the client to the attorney on a work-provided computer stipulated by the employer to be available for personal use. The employer in this matter provided the employee with a laptop computer, which she used to email her attorney about possibly filing a suit against the employer. She subsequently returned the laptop after she quit. After she filed suit, the employer hired a computer expert to recover emails between the employee and her attorney from the laptop's hard drive. The employer's attorney read the emails and used information from them during discovery. The trial court held that as the employee was on notice that all emails on her computer were the employer's property, they were not privileged. The Appellate Division and Supreme Court, however, disagreed. The Supreme Court found that under the circumstances the employee could have reasonably expected that email communications with her lawyer through her personal, password-protected, web-based email account would remain private, and that sending and receiving them using a company laptop did not waive the attorney-client privilege.

In Weingarten v. Weingarten, 234 N.J. Super. 318 (App. Div. 1989), the parties' final judgment of divorce incorporated a property settlement agreement. The wife subsequently brought a motion to vacate the final judgment of divorce with regard to the division of marital assets because she asserted her husband misrepresented the true value of the assets, even though she had been advised by her attorney to get an independent appraisal. The husband claimed that once the wife had disclosed private communications with her attorney in her certification to the court, she waived the attorney-client privilege. The court agreed, holding that the wife in Weingarten waived the privilege not only by instituting the proceedings, but also by disclosing the confidential communications with her attorney in her certification. However, the court held that the waiver only applies to information relevant to the issues raised by the wife's application. Therefore, the matter was remanded to the trial court for determination of the scope of the waiver of the privilege. Specifically, the trial court was directed to conduct an in camera (private) review of the documents requested, explain its reasons in a sealed record, and release to the husband those documents not protected by the privilege.

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