In Re Kozlov

The opinion of the court was delivered by

Hughes, C. J.

The factual background of the judgment from which this appeal is taken is generally well stated in the opinion of the Appellate Division. In re Kozlov, 156 N. J. Super. 316 (App. Div. 1978). It is unnecessary for us to consider all of the legal conclusions it reached on that factual base, since we are convinced that its judgment must be reversed on an entirely separate and supervening ground — one not prominently dealt with therein, and perhaps not sufficiently recommended to its attention by the parties or indeed by the factual record made in the case. Be that as it may, the following somewhat unusual question is projected by this appeal.

One Eloard C. Catlett, the police chief of the Borough of Lawnside in Camden 'County, was convicted by a jury on an indictment charging him with a criminal offense, the nature of which is not relevant to the issue before this Court. A member of that jury, one Yacovelli, Juror Number 11, had denied by his silence on voir dire examination by the court under B. 1:8-3, that he knew the trial defendant or was prejudiced against him in any way. Indeed he forswore by that very silence that any matter existed which might affect his service as an impartial and disinterested juror. As a natural result the trial defendant interposed no challenge to such juror, either for cause, B. l:8-3(b), or peremptorily, B. 1:8-3 (d), and thus it came about that Yacovelli sat in judgment on defendant.

Some time after the highly publicized conviction of Catlett events occurred which led eventually to the conviction for contempt, by the Catlett trial judge, of an attorney at law, the appellant-respondent Kozlov, described below as a “reputable member of the bar acting in good faith * * In re Kozlov, supra, 156 N. J. Super, at 320. Kozlov had theretofore been uninvolved in any way with the Catlett trial itself, and might well be characterized as the classic “innocent bystander.” The events which led to his conviction, described in proceedings preliminarily (and appropriately) heard in camera, Scott v. Salem Cty. Memorial Hosp., 116 N. J. Super. 29, 35 (App. Div. 1971), came about in this way. A long-standing family and business client of Attorney Kozlov, while consulting him on an unconnected legal matter, solicited professional advice as to his, the client’s, duty to divulge knowledge which had come to him accidentally and which affected the validity of the Catlett conviction and thus the integrity of the administration of justice. The evidence supplied to Kozlov, if true, would have so contaminated the jury conviction of Catlett as to despoil his Sixth Amendment right to fair trial by an impartial jury and to entitle him, under most conceivable circumstances, to new trial.

The information was related to Kozlov by his client on condition that whatever the lawyer decided to do with it, the client’s name as its source would- never be revealed. Compatible, surely, with his obligation as an officer of the court, Kozlov disclosed the information to one Poplar, defense attorney for Catlett, emphasizing the stipulated anonymity of his client. While he might better have directly informed the trial court (DR 7-108(E) provides: “A lawyer shall reveal promptly to the court improper conduct by * * * a juror * * * of which the lawyer has knowledge”), we regard this misdirection as inconsequential in the circumstances. Kozlov was entitled to assume that Poplar would transmit the information to the court in support of a challenge to the validity of the Catlett verdict. Indeed, had Kozlov alternatively decided -to inform the prosecutor, that official would have been equally bound to share the information with the court and for the same purpose — to elicit its inquiry and impartial judgment as to the validity of the basic conviction. See State v. Vinegra, 73 N. J. 484, 501-02 (1977).

The information involved was as follows: shortly after Catlett’s conviction, juror Yacovelli was heard to boast that he had gotten “even with the defendant [Catlett] for the arrest and prosecution of a member of his [Yacovelli’s] family.” In re Kozlov, supra, 156 N. J. Super, at 318. As we have indicated, this activated Kozlov’s professional conscience and action. Understandably, his disclosure induced this movement by Poplar:

Poplar investigated Kozlov’s information and discovered that a person bearing the same surname as the juror in question and residing at his address had in fact been the defendant in a disorderly person’s proceeding in the Borough of Lawnside Municipal Court. He thereupon made application pursuant to B. 1:16-1 to the jndge who had presided at Catlett’s trial seeking to have the juror interviewed. The application was supported by Poplar’s affidavit which contained Kozlov’s hearsay, a recitation of the pertinent facts of the Lawnside Municipal Court proceeding and the recollection that at the vovr dwe of prospective jurors the juror in question, as did all the others ultimately sworn, denied knowing Catlett or having any reason for bias against him. [Id. at 319 (footnote omitted)].

We observe that Poplar could probably have gone no further in his investigation under the stricture of R. 1 rid-l,¹ State v. LaFera, 42 N. J. 97, 105-07 (1964), so that under that rule he appropriately appealed to the court to initiate and supervise further investigation including, certainly, interrogation of the juror.

The Appellate Division recalled that the “trial judge was not satisfied with the sufficiency of Poplar’s affidavit as a basis for initiating the juror-interrogation process since the affidavit relied exclusively on the hearsay information and the municipal court record, which on its face showed no direct link between the juror and Catlett.” 156 N. J. Super. at 319 (footnote omitted). As the more certain record stands before us now, however, the “no direct link” postulate of that decision is significantly weakened. Eor by leave of this Court the Teeord has been amplified by copies of the municipal court arrest report of one Luciana Yacovelli, which evidences a much stronger link between the juror and Catlett. This evidence was not, as it should have been, fully placed before the trial judge, although its existence was suggested on the record. That faulty record no doubt misled both trial judge and Appellate Division.

It is now clear that the arresting officers were, in fact, Patrolman James Morris and Sergeant Eloard C. Catlett, Jr. (defendant Catlett’s son). They acted on a charge of violation of N. J. S. A. 2A :170-98 (shoplifting) and N. J. B. A. 2A:170-29 (use of offensive language, etc.). Luciana Yaco-velli was convicted in the municipal court on the first charge mentioned. This link seems to us to be circumstantially so persuasive that it, had it been entirely made clear, together with the hearsay evidence of juror Yaeovelli’s boast of retaliation against Catlett for a supposed wrong, should have energized the trial judge to proceed with an immediate investigation, commencing with his interrogation of Luciana Yacovelli and the juror involved, to determine their relationship and the supposed rancor and prejudice attributed to the juror because of her conviction. Cf. Scott v. Salem Cty. Memorial Hasp., supra, 116 N. J. Super, at 37 (“In light of the evidence to which we have alluded * * * we are convinced that the trial court should have allowed further inquiry with respect to the alleged irregularit[y]).”

Instead there ensued a sequence of in camera hearings, to interrogate not the implicated juror but rather the attorney who had reported the alleged misconduct. These hearings explored at considerable length the- scope of the attorney-client privilege, and the nuances of distinction between the forced disclosure of a professional communication itself and the identity of the client. In re Richardson, 31 N. J. 391, 397 (1960); State v. Toscano, 13 N. J. 418, 424 (1953); In re Kozlov, supra, 156 N. J. Super, at 321-24. The trial court decided, and the Appellate Division agreed, that the attorney-client privilege did not extend so far as to permit Kozlov to withhold the name of his client, and that he was in contempt of court for so doing. The while, the appeal of Catlett from his conviction has been held pending the outcome of the pxesent case.

We are mindful, and respectful, of the thrust of B. 1:16-1 which would inhibit the harassment by disappointed attorneys or parties of jurors, grand or petit, who have acted in fulfillment of the highest public duty (perhaps short of military service or the exercise of the franchise) expected of a citizen. The administration of justice requires that their freedom of action be shielded from such harassment, especially as affecting their decision-making process. State v. Athorn, 46 N. J. 247, 251-52 (1966); State v. LaFera, supra; O’Regan v. Schermerhorn, 25 N. J. Misc. 1, 31 (Sup. Ct. 1946). As Lord Coke observed of Judges, 12 Coke Rep. 23, 25, 77 Eng. Rep. 1305, 1307 (S. C. 1608), jurors, because they are involved in the judicial function, need only make account to the King [the State] (such as by accountability for any criminal corruption on their part) and to God for their decision. See In re Quinlan, 70 N. J. 10, 48 (1976) ; State v. Winne, 21 N. J. Super. 180, 210 (Law Liv. 1952), rev’d on other grounds, 12 N. J. 152 (1953). This for the sake of their judicial independence and integrity of action upon which the administration of justice so plainly depends. The “good cause” envisaged by B. 1:16 — 1 is not so much impropriety or defect in the motives or methods or thought processes by which the jurors reach their verdict, State v. Athorn, supra, 46 N. J. at 251-52, but rather concerns some event aliunde — some occurrence injected into the deliberation in which the capacity for prejudice inheres. State v. Kociolek, 20 N. J. 92, 100 (1955).

Where a juror on voir dire fails to disclose potentially prejudicial material, such as that involved in this case, a party may be regarded as having been denied fair trial. This is not necessarily because of any actual or provable prejudice to his case attributable to such juror, but rather because of his loss, by reason of that failure of disclosure, of the opportunity to have excused the juror by appropriate challenge, thus assuring with maximum possible certainty that he be judged fairly by an impartial jury. State v. Deatore, 70 N. J. 100, 105-06 (1976).

Deatore emphasizes the initiative expected of a trial judge to explore and make certain the presence of elements essential to the proper administration of justice, including very importantly the impartial jury basic to that ideal. Id.; State v. Jackson, 43 N. J. 148, 157 (1964); Wright v. Bernstein, 23 N. J. 284, 294-95 (1957).

The responsibility of a trial judge, as guardian and exemplar of the pure administration of justice, would require him, while spurning any officious interference with the independence and integrity of the mental processes of a jury (State v. Athorn, supra, 46 N. J. at 252), to seek out and expose outside factors impinging upon the jury’s freedom of action and thus its impartiality and essential integrity. Any matter which would contaminate the latter should invite the aggressive attention and concern of the trial judge for he, above all others, is the immediate custodian and steward of justice in the circumstances and exigencies of the particular case.

We have the most serious doubt, in the context of the ease before us, of the validity of any inflexible thesis that the identity of the client, as distinguished from the substance of his professional confidence, is outside the ancient privilege deemed to exist between attorney and client.² We are not dealing here with the identity of the payor of a retainer fee (perhaps only theoretically a “client”) for the professional defense of others accused of gambling crimes, as in State v. Toscano, supra, and People ex rel. Vogelstein v. Warden of County Jail, 150 Misc. 714, 270 N. Y. S. 362 (Sup. Ct. 1934), aff'd 242 App. Div. 611, 271 N. Y. S. 1059 (App. Div. 1934); or of another accused as a corrupt public servant, as in In ret Richardson, supra; or of a prostitute in a Mann Act violation ease, United States v. Pape, 144 F. 2d 778 (2d Cir. 1944). The higher public interest and necessity motivating the courts in such cases do not exist here — on the contrary. Eor if a decent lawyer must choose, by force of law, to protect his professional life by a circumspection which would cause him to suppress information going to the heart of the administration of justice, the public interest in the probity of justice would be betrayed. So here, if the law would force Kozlov to forget about the information he heard from his client rather than pass it on, not only would the administration of justice be frustrated but Kozlov himself would be in violation of his ethical duty under DR 7-108 (E).

Proceeding from this paradox, we classify Kozlov’s dilemma of professional conscience³ as being within the attorney-client privilege if only because of the “balancing test” between the public interest in the search for truth and the privilege itself. See ETote, “The Attorney-Client Privilege: Eixed Rules, Balancing, and Constitutional Entitlement,” 91 Haro. L. Rev. 464 (1977). As stated for this Court by Justice Jacobs in In re Richardson, supra, 31 N. J. at 401, “[t]he matter is truly one of balance * * *” as indeed was recognized by the Appellate Division here although it did not think, as we do, that it ran clearly in favor of the privilege asserted by Kozlov. We would identify the particular circumstances here with the ease of In re Kaplan, 8 N. Y. 2d 214, 203 N. Y. S. 2d 836, 168 N. E. 2d 660 (1960), in which Chief Judge Desmond wrote for the Court of Appeals :

The law question * * * is whether an attorney confidentially retained by a client to pass certain information to a public investigating body is to land in jail because he is willing to disclose the information but not his client’s identity. Imposition of a sanction so Draconian and so destructive of the ancient rules as to lawyer-client privilege calls for close security. We do not think it can be held valid.

* * * Usually, it is not the client’s name but the client’s communication to his lawyer which is held to be sacred, and so, ordinarily, there is no need to conceal the name to preserve the confidence. But here the client’s communication had already been divulged to the Commissioner and it was the client’s name that deserved and needed protection (see Elliott v. United States, 23 App. D. C. 456; United States v. Lee, C. C„ 107 F. 702), fox fear of reprisals, etc. Since there was no reason to doubt that the informant was a client of appellant, it was unnecessary to investigate that relationship. Since the client’s communication to appellant was made in the aid of a public purpose to expose wrongdoing and not, as in the Vogelstein case, to conceal wrongdoing, the seal of secrecy should cover the client’s name, so long as his information was made available to the public authorities. The contrary holding serves no right end, contravenes the ancient policy * * * and embarrasses and penalizes a lawyer for taking a course consistent with his professional and civil responsibilities. [8 N. Y. 2d at 217-19, 203 N. Y. S. 2d at 838-839, 168 N. E. 2d at 661].

None of this is to say that the privilege, while exceedingly important, is sacrosanct. The Disciplinary Rules themselves recognize exceptions such as a confidential communication leading to the commission of a crime, DR 4 — 101(C),(3). But here we deal not with a client’s confidence given in preparation for the commission of crime but rather its prevention, in the sense of providing information which would, if true, demonstrate a juror’s contempt equivalent to a criminal obstruction of justice itself. See In re Jeck, 26 N. J. Super. 514-, 519 (App. Div. 1953).

Therefore if, as we here determine, Kozlov was entitled in the circumstances of this case, to the professional shield of the attorney-client privilege, the path to our decision is made straight and clear. Privilege born of the common law, such as the attorney-client privilege here involved, is not an idle and anachronistic vestige of the ancient past. On the contrary, it has a well-defined relationship, recognized and defined over the centuries, to the administration of justice, to the basic needs of the human condition, to the essential rights of man and thus to the public interest. As such it clearly deserves the continued protection of the courts. Considering the respect owed by courts to the legislative will, the same applies to privilege established by statute — such as the so-called “shield” laws protecting those who gather and publish news in the public interest (N. J. 8. A. 2A:84A-21), or privilege resting on a constitutional base such as the protection of the First Amendment. Yet, as we have indicated, the privilege can fall as in the ease of a lawyer-client confidence given for the instigation of crime. Also in the interposition of a supposed First Amendment privilege in the path of a grand jury engaged in the fundamental governmental function of “fair and effective law enforcement * * Branzburg v. Hayes, 408 U. S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). Nor does the privilege concept stand even in the ease of a constitutionally based President’s executive privilege confronting “[t]he * * * integrity of the judicial system * * it being thought and ruled by the United States Supreme Court that “[t]o ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” United States v. Nixon, 418 U. S. 683, 709, 94 S. Ct. 3090, 3108, 41 L. Ed. 2d 1039, 1064 ,(1974). A foHiori a privilege, even that created by the most precise legislation, did not stand against a defendant’s Sixth Amendment right to fair trial, as this Court has recently held in In re Farber, 78 N. J. 259 (1978), cert. den. New York Times Co., v. New Jersey, - U. S. -, 99 S. Ct. 598, 58 L. Ed. 2d 670 (1978).

But there are necessary foundations to the valid piercing of any such privilege, one of which is absent here. There must be a legitimate need of the party to reach the evidence sought -to be shielded. There must be a showing of relevance and materiality of that evidence to the issue before the court. The record here clearly bespeaks the existence of these necessary elements. But it must also be shown, as pointed out by Justice Mountain for this Court in Father, supra, to the satisfaction of “the trial judge, by a fair preponderance of the evidence including all reasonable inferences, that * * * the information * * * could not he secured from any less intrusive source.” Id at 276-77 (emphasis supplied).

It is of course obvious that testimony from Luciana Yacovelli and juror Yavoeelli would have constituted that less intrusive source, which source should have been explored and exhausted before invoking the drastic contempt remedy here appealed ifrorn, no less for the sake of the general administration of justice than for vindication of the alleged contemnor. It is not an inconsequential matter to brand a reputable attorney as contemptuous of the court of which he is an officer. The trial court action here, probably predicated upon a deficient record and responsive as well to a judicial reluctance to probe, on partially hearsay evidence, the integrity of a jury verdict, yet was error in its omission to confront this juror (after ascertaining the relationship of Luciana Yacovelli and the probable bearing of her conviction on his motives) at least with the question of his alleged duplicity, that it might be admitted or disproved. To hold that Attorney Kozlov contemned the court while this “less intrusive source” of information was available was, we think, error of such nature that the judgment of contempt must be set aside, and the cause remanded to the Law Division for appropriate proceedings not inconsistent with this opinion.

In view of the somewhat convoluted procedural status here (State v. Catlett on appeal and thus within the jurisdiction of the Appellate Division, R. 2:9-l (a); In re Kozlov, remanded, and so within the jurisdictional competence of the Law Division) we suggest the course that such additional proceedings should follow. This for the sake of clarity, to avoid circuity of action and to serve efficiently the ends of justice, inasmuch as these two litigations are inevitably intertwined.

The Appellate Division, on the appeal of State v. Catlett, should remand to the trial court the issue concerning the motion for a new trial based on the question of juror integrity. That being done, the trial court should proceed expeditiously with the inquiry we have recommended, that is to say the establishment of the facts by interrogation of the Yaeovellis. Should that be abortive and if any other possible “less intrusive source” repositories of evidence are exhausted, it may again become necessary to press Attorney Kozlov and the case as to him may be reactivated. On the other hand, if the inquiry by the trial court discloses substance to the charge of bias on the part of juror Yaeovelli, it would seem right and just that the trial court consider such new evidence as bearing upon the validity of the Catlett conviction.

Having made its determination as to new trial, the trial court will report same to the Appellate Division in amplification of the record before it, so that the latter may proceed to consideration of the whole matter tendered for its decision.

We note an additional word of caution. It is occasionally advisable, particularly where a decision rests upon an opinion seeming to chart a new or controversial doctrinal path in state law, that the limitations thereof be emphasized, as by reference to the relevance of the particular circumstances of the case before the Court. Cf. American Trial Lawyers v. New Jersey Supreme Court, 66 N. J. 258, 267 (1974). Obviously, as suggested by the learned author of the concurring opinion herein, there may be other less urgent circumstances than at present, such as a case in which the clear necessities of justice, predicated upon the unending search for truth which is the mission of the law, would outweigh the privilege which we uphold here. No one can doubt that reality. We do not intend our opinion to be read as extending to such questions, whose resolution must await a specific case, upon the appropriate record.

Reversed.

1 B. 1:16-1 provides:

Except by leave of court granted upon good cause shown, no attorney or party shall himself or through any investigator or other person acting for him interview, examine or question any grand or petit juror with respect to the verdict or deliberations of the jury in any action.

2 The basis of this privilege was well described many years ago in Hatton, v. Robinson, 31 Mass. (14 Pick.) 416, 422 (1833), where Chief Justice Shaw said:

* * * This principle we take to' be this; that so numerous and complex are the laws by which the rights and duties of citizens are governed, so important is it that they should be permitted to avail themselves of the superior skill and learning of those who are sanctioned by the law as its ministers and expounders, both in ascertaining their rights in the country, and maintaining them most safely in courts, without publishing those facts, which they have a right to- keep secret, but which must be disclosed to a legal adviser and advocate, to enable him successfully to perform the duties of his office, that the law has considered it the wisest policy to encourage and sanction this confidence, by requiring that on such facts the mouth of the attorney shall be forever sealed.

3 There is occasional difficulty in harmonizing the lawyer’s ethical responsibility to his client and his duty as an officer of the court. Cf. Maness v. Meyers, 419 U. S. 449, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975) ; In re Callan, 66 N. J. 401 (1975). Elements important to the resolution of this dilemma include the “integrity of the rule of law,” Callan, supra, 66 N. J. at 407, the constitutional rights of clients, Maness, supra, and the professional obligation of the lawyer, which factors sometimes converge to produce “occasions when our system of justice seems to give the nod to the client.” Gallon, supra, 66 N. J. at 410, 411. Indeed, the difficulty has been described as a “trilemma” of the conscientious attorney — “that is, the lawyer is required to know everything, to keep it in confidence, and to reveal it to the court.” M. Freedman, Lawyers’ Ethics in an Adversary System 28 (1975). Cf. Lowery v. Cardwell, 575 F. 2d 727, 730-32 (9th Cir. 1978).