holding that where an attorney's client fled the state with her niece after the child's biological parents had re-established legal custody, the state's interest in the child's welfare justified invading the attorney-client privilege for the purpose of compelling the attorney to disclose the client's addressSummary of this case from G-I Holdings, Inc. v. Baron Budd
Argued March 20, 1979
Decided May 8, 1979
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, BERTRAM R. GELFAND, S.
Elizabeth L. Koob and Lloyd B. Silverman for appellant.
M. Madeline Welch for respondents.
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, the letters of guardianship were revoked on July 1, 1977, and Jacqueline's aunt directed to deliver custody of the child to respondents. However, the order of the Surrogate's Court was stayed by the Appellate Division pending an appeal to that court. On July 19, while the stay remained in effect, Jacqueline's aunt disconnected her telephone, vacated her home and departed with the child to Puerto Rico, leaving no forwarding address. Upon respondents' discovery of this development in the course of attempting to exercise court-ordered visitation rights, they moved to vacate the stay. This motion was denied when appellant, appearing for the child's aunt, maintained that the latter had gone to Puerto Rico only for a vacation.
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.
On November 25, 1977, the Appellate Division ( 59 A.D.2d 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 N.Y. 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), like all privileges, operates as an exception to the general requirement that all persons give testimony upon facts within their personal knowledge inquired of in a court of law. (See Matter of Horowitz, 482 F.2d 72, 81, cert den 414 U.S. 867, reh den 414 U.S. 1052; 8 Wigmore, § 2285.) As such an exception, and notwithstanding its desirable purpose, the attorney-client privilege constitutes an "obstacle" to the truth-finding process, the invocation of which should be cautiously observed to ensure that its application is consistent with its purpose. (See Matter of Field, 408 F. Supp. 1169, 1173; Matter of Stolar, 397 F. Supp. 520, 524; 5 Weinstein-Korn-Miller, N Y Civ Prac, par 4503.19, p 45-148; 8 Wigmore, § 2291, at p 554.)
"(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 employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof. Evidence of any such communication obtained by any such person, and evidence resulting therefrom, shall not be disclosed by any state, municipal or local governmental agency or by the legislature or any committee or body thereof. The relationship of an attorney and client shall exist between a professional service corporation organized under article fifteen of the business corporation law to practice as an attorney and counselor-at-law and the clients to whom it renders legal services."
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 N.Y.2d 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 a client's identity from disclosure, we have stated on a previous occasion that notwithstanding opinion to the contrary the rule in New York is not so broad as to state categorically that the privilege never attaches to a client's identity. (Matter of Kaplan [Blumenfeld], 8 N.Y.2d, at p 218, supra.) We recognized as the basic principle only that inasmuch as every litigant has a right to know his opponent, a client's identity must be disclosed where the question of identity arises during the course of litigation. (Id., at p 219; see, e.g., 99 Plaintiffs v Vanderbilt, 1 Abb Prac 193.) Thus, absent other circumstances, an attorney cannot be compelled to reveal a client's identity where the latter is not a party to a pending litigation. (See, e.g., Matter of Shawmut Min. Co., 94 App. Div. 156; Neugass v Terminal Cab Corp., 139 Misc. 699.) Of course, notwithstanding the absence of a pending litigation to which an attorney's client is a party, disclosure may also be compelled where an "attorney's assertion of the privilege is a cover for co-operation in wrongdoing." (Matter of Kaplan [Blumenfeld], 8 N.Y.2d, at p 219, supra; compare id. with People ex rel. Vogelstein v Warden, 150 Misc. 714, supra; see, also, Banco Frances e Brasileiro S.A. v Doe, 36 N.Y.2d 592, cert den 423 U.S. 867.)
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 then be compelled to disclose his late client's address, even it be to enable the defendant to pursue him aggressively by new proceedings founded on the judgment." (See Hyman v Corgil Realty Co., 164 App. Div. 140; Levy v Coy, Hunt Co., 64 Misc. 39; Walton v Fairchild, 4 N.Y.S 552.)
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 N.Y.2d 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 N.Y.2d 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.
In the determination whether a communication by a client to an attorney should be afforded the cloak of privilege, "`much ought to depend on the circumstances of each case'". (Matter of Kaplan [Blumenfeld], 8 N.Y.2d 214, 219, supra, quoting 8 Wigmore, Evidence [5th ed], § 2313, p 609.) Nowhere is this principle better demonstrated than in the present case, involving the welfare of a young child caught in an intrafamilial legal battle in which the victor stands to gain an uncommon reward — custody of a child. The ordeal suffered by a child during a custody proceeding is unfortunate but often necessary. It is, however, quite another matter to put a child through such an ordeal only to permit an unsuccessful litigant to frustrate the court's judgment rendered in the best interests of the child. (Cf. Martin v Martin, 45 N.Y.2d 739; Matter of Nehra v Uhlar, 43 N.Y.2d 242; Entwistle v Entwistle, 61 A.D.2d 380.) Given the vital interest of the State as parens patriae, deliberate attempts to avoid a court mandate concerning custody of a child cannot be permitted where, as in this case, a potential vehicle for the enforcement of the court's judgment lies at hand. (See Falkenhainer v Falkenhainer, 198 Misc. 29; cf. Tierney v Flower, 32 A.D.2d 392; Burton v Darnley, 21 LTR [ns] 292, 8 Equity Cases [LR 1869], 577; Ramsbotham v Senior, 21 LTR [ns] 293, 8 Equity Cases [LR 1869], 575.) Where a calculated intent to frustrate a court mandate exists on the part of a client under the circumstances of this case, it matters little whether his or her attorney acted for a legitimate purpose, inasmuch as a finding of a "conspiracy" is not necessary to defeat the privilege. (See Clark v United States, 289 U.S. 1, 15; Richardson, Evidence [10th ed], § 417.)
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 N.Y.2d 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. 285, affd 143 App. Div. 906, supra; Dike v Dike, 75 Wn.2d 1; Jafarian-Kerman v Jafarian-Kerman, 424 S.W.2d 333 [Mo].) Appellant's client cannot have her cake and eat it too by taking advantage of the appellate process in the hope of a reversal while at the same time remaining in hiding with the expectation that should she lose her appeal she can preclude enforcement of the mandate of the court. Under these circumstances the attorney-client privilege, which exists to foster "lawful and honest purposes" (Coveney v Tannahill, 1 Hill 33, 36) must yield to the best interests of the child. (Cf. People ex rel. Chitty v Fitzgerald, 40 Misc.2d 966.)
Accordingly, the order of the Appellate Division should be affirmed, without costs.
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 N.Y.S 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." In the event of failure to respond to such a demand, application may be made to the court to compel disclosure (CPLR 3124). Thereafter sanctions for refusal to obey the court's order are directed against the party (CPLR 3126). In this case, as noted at the Appellate Division, there is also an explicit provision of the Surrogate's Court Procedure Act which requires a fiduciary, here the guardian, to keep the court informed of changes of address (SCPA 708, subd 1).
As to the availability of this disclosure provision after trial see CPLR 3102 (subd [d]).
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 order, a matter related only to the conduct of the final, remedial stage of the pending litigation.
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 addressed to the attorney, entirely properly, not as some new or independent proceeding but only as an aspect of the court's responsibility to see to the enforcement of its determination in the custody proceeding. I characterize this as incident to the custody proceeding, which continues as pending litigation until enforcement is accomplished or efforts to that end are abandoned. Indeed, if it not be so characterized, the attempt to punish the client for contempt having been judicially terminated, wherein lies the procedural framework within which the attorney may be directed to disclose?
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 A.D.2d 392; Falkenhainer v Falkenhainer, 198 Misc. 29.)
For the reasons stated, the order of the Appellate Division should be affirmed.
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 N.Y.2d 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 A.D.2d 1088, affd 41 N.Y.2d 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 enjoined, by mandate of law and of ethics, to hold inviolate the confidences of his client not merely to facilitate the full disclosure of information that may aid in a representation already undertaken, but, by removing any need for a client's concern that his revelations will be turned against him, to encourage the client to seek legal assistance in the first place (Ethical Consideration, Code of Professional Responsibility, EC 4-1, Judiciary Law, Appendix). Without either condoning resort to self-help or deprecating the importance of securing obedience to court decrees, these overriding concerns forbid sacrificing the privilege to the expediency of the case at hand.
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 A.D.2d 392; Uniform Rules of Evidence, rule 26, subd , 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 U.S. 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 when the biological parents became aware of it and that, until then, he believed she had merely taken the child on a vacation.
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 N.H. 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, a notice to admit, or the like. The sanction for failure to comply in all these cases is not to force the disclosure of the facts from the attorney but, instead, the usual penalties affecting the client's position in the litigation itself, such as preclusion or dismissal or stay of proceedings (see, e.g., 99 Plaintiffs v Vanderbilt, 1 Abb Prac 193 [plaintiffs' action stayed pending compliance with order to produce addresses]; CPLR 3126; 3A Weinstein-Korn-Miller, N Y Civ Prac, par 3118.02). So it is not uncommon for some litigants to drop a suit or a defense rather than provide deposition testimony or pleading particulars unexpectedly ordered to be furnished; indeed, the Government itself does so from time to time under similar circumstances to maintain the confidentiality of evidence it would rather not reveal. That does not mean that the attorney for the private party in the one case, or the attorney for the Government in the other, is free, absent waiver by each one's client, to disclose the information which the client was ready to suffer prejudice to protect.
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, N Y 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 N.Y.S 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.