D'Alessio v. Gilberg
617 N.Y.S.2d 484, 205 A.D.2d 8, 1994 N.Y. App. Div. LEXIS 9522 (1994)
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Rule of Law:
A client's identity is protected by the attorney-client privilege when revealing it would effectively disclose the substance of a confidential communication, particularly where the client sought legal advice concerning a past crime and disclosure would expose them to criminal prosecution.
Facts:
- On December 2, 1990, Vincent Fiorito was critically injured by a hit-and-run driver in the Town of Mamaroneck.
- Fiorito remained in a coma and subsequently died from his injuries.
- There were no known witnesses to the incident.
- An individual, who may have been the driver of the vehicle that struck Fiorito, contacted the respondent attorney for legal advice regarding the incident.
- A newspaper article asserted that the driver had revealed himself to an attorney.
Procedural Posture:
- The petitioner filed a preaction discovery application in the Supreme Court (the trial-level court) to compel the deposition of the respondent attorney.
- The application's purpose was to ascertain the identity of the driver in order to commence a civil action.
- The Supreme Court granted the petitioner’s motion and ordered the attorney to appear for an examination before trial.
- The respondent attorney, as the appellant, appealed the Supreme Court's order to the Appellate Division of the Supreme Court (an intermediate appellate court).
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Issue:
Does the attorney-client privilege protect an attorney from being compelled to reveal the identity of a client who consulted them for legal advice regarding their possible involvement in a past fatal hit-and-run accident?
Opinions:
Majority - Lawrence, J. P.
Yes. The attorney-client privilege protects the client's identity under these circumstances. While a client's name is generally not considered a privileged communication, an exception applies when disclosure of the identity would be 'inconsistent with the trust and duty assumed by an attorney.' Here, the client consulted the attorney precisely because of their possible involvement in the fatal accident. Revealing the client's identity would directly implicate them in the very matter for which they sought legal advice, thus exposing the substance of their confidential communication. The court distinguished this situation from those involving the prevention of future crimes, reasoning that the strong public policy of encouraging clients to confide fully and freely in their counsel for past acts outweighs the goal of fact-finding in this specific instance.
Analysis:
This decision reinforces a crucial exception to the general rule that a client's identity is not privileged. It establishes that the privilege can extend to a client's name when the identity itself is incriminating and revealing it would disclose the client's motive for seeking counsel. The case sharply distinguishes between consultations regarding past crimes, where the privilege is strong, and future crimes, where it may yield to public safety concerns. This precedent strengthens the protections for individuals seeking legal advice about completed criminal acts, ensuring they can do so without fear that the simple act of consultation will become evidence against them.
