Attorney-Client Privilege Alien Illegally in United States
95 N.J.L.J. 1271
December 7, 1972
Appointed by the New Jersey Supreme Court
Alien Illegally in United States
An attorney asks for advice regarding the attorney client privilege in the following situation.
A Spanish-speaking foreign national came to the attorney's office with another person seeking advice concerning certain federal income tax matters. The client stated that the person accompanying him would be his interpreter agent for the receipt of mail and the conduct of any other business which might be required in the course of the relationship between the attorney and the client. Despite the professed lack of fluency in the English language, the initial consultation took place between the attorney
and the client alone. At the end of the conference, the client left and shortly thereafter the person who had accompanied him returned to the attorney's office and requested the return of the client's papers. He stated that the client had just disclosed to him that he was an alien illegally present in the United States and failed that the steps to be taken in the income tax matter would result in his status being discovered and his consequent arrest and deportation. Accordingly, he had directed this person to recover his papers and terminate the attorney's employment. The attorney complied with the request and returned all the papers. The client's friend suggested to the attorney that he "forget about the whole thing."
The attorney presents his question as follows:
The specific question to which this inquiry is addressed is whether an attorney to whom reliable, but not conclusive, information is disclosed to the effect that a client is committing a crime, which offense was not the subject matter out of which the attorney client relationship arose, is bound by the rules to disclose such information to the appropriate authorities for investigation.
This inquiry presents the familiar conflict of two opposing policies of law, one calling for full disclosure of all facts in the interests of justice, and the other requiring the attorney to maintain the confidences of his client. For a discussion and treatment of these conflicting policies, see our Opinion 116, 90 N.J.L.J. 688 (1967).
The lawyer client privilege is a part of our statutory law. Paragraph (2) of Rule 26 of the Evidence Act, N.J.S. 2A:84A-20, sets forth exceptions to the privilege, one of which is that the
privilege does not apply to a communication in the course of legal service sought or obtained for the commission of a crime or fraud.
DR 4-101 of the Code of Professional Responsibility of the American Bar Association also deals with the preservation of the confidences of a client. Paragraph (C) sets forth the exceptions to the general rule and Subparagraph (3) provides that an attorney may reveal the intention of his client to commit a crime and the information necessary to prevent the crime. As Drinker points out in Legal Ethics 138 (1953) there is a distinction to be made between confidences conceding a crime already committed and confidences with respect to a continuing crime or one to be committed.
Finally, it should be observed that the privilege generally is not affected by the presence of or communication to a third party acting with the lawyer as a friend of the client. Drinker, at 135.
As the attorney making the inquiry points out, the illegal presence of a client in the United States is not a crime in the usual sense under either state or federal law. Such presence is, however, a violation of federal law (8 U.S.C. 1251) and may subject him to imprisonment under section 1252 while his status is being determined. It may, therefore, be considered at least a fraud on the United States.
For purposes of our opinion, we assume that the presence of the client in the United States is, in fact, illegal. It is a continuing fraud on the United States. Accordingly, should inquiry be made of the attorney as to any facts known by him which would bear on the question of the continued illegal presence of his client in this country, he is not prevented from disclosing such facts by the attorney-client privilege.