A. v. B.
158 N.J. 51, 726 A.2d 924 (1999)
Rule of Law:
In a joint representation, a lawyer may disclose confidential information learned from a third party that is material to the representation to one co-client, even over the objection of the other co-client, if the failure to disclose would constitute a fraud by the objecting client on the other.
Facts:
- A husband and wife retained the law firm Hill Wallack for joint estate planning to draft reciprocal wills.
- The couple signed a "Waiver of Conflict of Interest" letter which stated that information provided by one spouse could become available to the other.
- Unbeknownst to the wife or the firm, the husband had recently fathered a child with another woman.
- By coincidence, the child's mother retained Hill Wallack to file a paternity suit against the husband.
- Due to a clerical error in a conflict check, the firm was unaware it was representing both the couple and the mother simultaneously.
- The husband and wife executed their wills, which named each other as primary beneficiary and their respective "issue" as contingent beneficiaries, which under New Jersey law includes illegitimate children.
- The law firm learned of the husband's illegitimate child not from the husband, but through its separate representation of the child's mother.
Procedural Posture:
- The mother of the child instituted a paternity action against the husband in the Family Part, a trial-level court.
- In that action, the husband joined his law firm, Hill Wallack, as a third-party defendant.
- The husband requested an order from the Family Part to prevent Hill Wallack from disclosing the child's existence to his wife.
- The Family Part denied the husband's request for the restraining order.
- The husband appealed to the Appellate Division, the intermediate appellate court.
- The Appellate Division reversed the trial court's decision and ordered that the restraints be imposed against the law firm.
- Hill Wallack, the law firm, sought and was granted leave to appeal to the Supreme Court of New Jersey, the state's highest court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
In the joint representation of a husband and wife for estate planning, may a law firm disclose to the wife the existence of the husband's illegitimate child when that information is material to the wife's estate plan and was concealed by the husband?
Opinions:
Majority - Pollock, J.
Yes. A law firm may disclose the existence of the husband's illegitimate child to the wife because the husband's deliberate omission constituted a fraudulent act in which the firm's services were used. The court balanced the lawyer's duty of confidentiality under RPC 1.6(a) against the duty to keep a client informed under RPC 1.4(b). It found that New Jersey's RPC 1.6(c) permits, but does not require, a lawyer to reveal confidential information to rectify the consequences of a client's fraudulent act in furtherance of which the lawyer's services had been used. The court construed "fraudulent act" broadly to include the husband's material omission, which fundamentally undermined the purpose of the joint representation for estate planning. The husband's concealment defrauded the wife by preventing her from making an informed decision about the disposition of her property, which could now potentially pass to his illegitimate child. The court adopted the discretionary approach of the Restatement (Third) of the Law Governing Lawyers, finding the firm may exercise its professional judgment to disclose the information because the risk to the wife outweighed the husband's interest in secrecy.
Analysis:
This decision significantly clarifies a lawyer's ethical duties in joint representations, particularly in estate planning. It establishes that the duty of confidentiality is not absolute between co-clients and can be pierced when one client perpetrates a fraud on the other using the lawyer's services. By broadly interpreting "fraudulent act" to include a material omission, the court empowers attorneys to prevent one co-client from deceiving another, thereby protecting the integrity of the representation. The case strongly encourages practitioners to use explicit disclosure agreements at the outset of a joint representation to define the scope of confidentiality and avoid such dilemmas.
Gunnerbot
AI-powered case assistant
Loaded: A. v. B. (1999)
Try: "What was the holding?" or "Explain the dissent"