Brennan v. Brennan

PRICE, Judge,

dissenting:

While I agree with the majority that the sanctity of the attorney-client relationship should be zealously protected, I disagree that disclosure in the instant case would upset the policy underlying the rule of confidentiality and conclude that non-disclosure would have the effect of frustrating the administration of justice.

Preliminarily, I must take issue with the majority’s statement that there is a “prevailing general rule of privilege as to client’s addresses in other jurisdictions . ...” (at 516). To the contrary, the general rule is that the address of a client is in most instances irrelevant to the purpose for which the attorney was retained and is deemed collateral to the substantive issues raised in the litigation. See 8 Wigmore, Evidence § 2310 (McNaughton rev. 1961) (information must be “part of the purpose of the client” in obtaining legal advice). Thus, it is generally held that such information “did not flow from a confidential communication.” In re Jacqueline F., 94 Misc.2d 96, 103 , 404 N.Y.S.2d 790, 795 (1978) , aff’d, 47 N.Y.2d 215 , 391 N.E.2d 967 , 417 N.Y.S.2d 884 (1979) . As such, the customary rule is that a party must be apprised of the address of his adversary in any legal proceeding. See cases collected at Annots. 114 A.L.R. 1321 , 1328-33 (1938) and 16 A.L.R.3d 1047 , 1062-68 (1967).

*380 As the majority correctly notes, however, such information may be held confidential if the client expressly requested that it remain inviolate and would not have revealed the information but for the assurance of confidentiality. The rationale for this subjective test, see Alexander v. Queen, 253 Pa. 195 , 94 A. 1063 (1916); 8 Wigmore, Evidence § 2291 (McNaughton rev. 1961); Disciplinary Rule 4-101; American Bar Association Committee on Ethics and Professional Responsibility, Formal Opinion 155 (1936). Informal Opinion 1188 (1971), is to implement the underlying policy of the attorney-client rule of confidentiality, which is to encourage litigants to seek professional advice under an assurance that they may truthfully divulge all information to their legal adviser subject to the cloak of confidentiality. See, e. g., Fisher v. United States, 425 U.S. 391 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976); Cohen v. Jenkintown Cab Co., 238 Pa.Super. 456 , 357 A.2d 689 (1976). But even this subjective test has its limitations, and I submit that disclosure in the instant case would not violate the policy underlying the rule of confidentiality. As stated in Dike v. Dike, 75 Wash.2d 1, 11 , 448 P.2d 490, 496 (1968):

“As the privilege may result in the exclusion of evidence which is otherwise relevant and material, contrary to the philosophy that justice can be achieved only with the fullest disclosure of the facts, the privilege cannot be treated as absolute; but rather, must be strictly limited to the purpose for which it exists.”

See In re Jacqueline F., 47 N.Y.2d 215 , 391 N.E.2d 967 , 417 N.Y.S.2d 884 (1979).

In any custody dispute, a party seriously and honestly intending to adjudicate the pertinent issues on their merits according to well-founded legal precepts will not be remiss to divulge the location of himself and the children and the name and address of the school that the children attend. Certain of this information is required under the Uniform Child Custody Jurisdiction Act, Act of June 30,1977, P.L. 29, § 10, 11 P.S. § 2310 (Supp. 1979-80) and is vitally necessary to permit the court to resolve the ultimate issue as to the *381 best interests of the children. Moreover, even the majority acknowledges that the position adopted by appellant “appears anomalous” in that he has instructed his counsel to contest the “in personam jurisdiction [of the Allegheny County Court of Common Pleas], yet refuses to permit his counsel to disclose his correct current address.” (at 517). In essence, appellant wishes to retain custody on his own terms and to utilize the existing judicial machinery to accomplish his purpose of challenging the in personam jurisdiction of the court, yet refuses to cooperate by divulging relevant information that would permit the court to fulfill its proper function in this custody case. By submitting his appearance to the hearing court 1 to invoke its process to dismiss the suit for lack of jurisdiction, appellant became bound to supply to the court information for that determination and the ultimate determination as to the best interests of the child should in personam jurisdiction be established. Thus, although the information here in question would appear to satisfy the test of confidentiality as a result of appellant’s self-serving statement that it remain sacrosanct, I would hold that disclosure would not upset the policy behind the confidentiality rule and would not have the effect of discouraging serious litigants from retaining legal counsel and truthfully disclosing all information necessary for rendering proper legal service.

Finally, I disagree with the majority’s determination that the instant proceeding does not establish a clear showing that the administration of justice will be impeded by the withholding of this vital information. Indeed, as I read the opinion, the majority merely concludes that because of the absence of a “proper custody order” (at 516), the present *382 case is not sufficiently “ripe” to establish the frustration in the administration of justice, but that upon remand the continued exercise of the attorney-client privilege may have that effect. In this respect, it should be noted that the complaint in custody was filed over one year ago on June 1, 1979, and averred that the children had been removed from the partys’ joint custody by appellant. An initial hearing on the complaint was scheduled for October 11, 1979, but upon petition by appellee, an expedited conciliation hearing was set for July 2, 1979, during which an order was entered awarding temporary custody to her. While a question does exist whether appellant received actual notice of the July 2, 1979 conciliation, the hearing court apparently determined that notice had been given and its order emanating from that hearing remained in effect until it was adjudicated to have been entered in error. See Act of June 30,1977, supra, § 13,11 P.S. § 2313. While the majority engages in de novo speculation that notice was not given and that the temporary custody order of July 2, 1979, is without effect, I believe that we should not delay our ruling in light of appellant’s avowed intent to retain custody and not reveal the information to the court. Moreover, and perhaps most importantly, it should be noted that the hearing court declined to enter a supplemental “proper” 2 custody order at the October 11, 1979 hearing only because it felt that the prior order of July 2 remained in effect and would not be enhanced an additional order. Thus, over one year subsequent to the filing of the initial complaint, appellant continues to thwart the process of the court by refusing to provide information pertinent to its adjudication of the issues of in personam jurisdiction and the best interests of the children.

Therefore, I would hold that in its present posture this proceeding is ripe for determination that, through his actions, appellant has succeeded in frustrating the interest of justice, and thus the information is not subject to the rule of *383 confidentiality of attorney-client communications. Indeed, courts in other jurisdictions have expressly or implicitly concluded that in custody disputes, the withholding of the information here in question serves to frustrate the administration of justice and is not privileged information. See Jafarian-Kerman v. Jafarian-Kerman, 424 S.W.2d 333 (Mo.App.1968); In re Jacqueline F., supra; Falkenhainer v. Falkenhainer, 198 Misc. 29 , 97 N.Y.S.2d 467 (1950); Dike v. Dike, supra; cf. Ex parte Schneider, 294 S.W. 736 (Mo.App.1927) (dicta); Tierney v. Flower, 32 App.Div.2d 392, 302 N.Y.S.2d 640 (1969) (adoption case).

In their opinion, the majority seeks to distinguish the principal case relied upon by the hearing court, In re Jacqueline F., supra, in part by noting that therein the custody proceeding had run its course and a final custody decree had been entered. Thus, when the attorney refused to divulge the whereabouts of his client, the administration of justice was frustrated because the refusal prevented the enforcement of the final decree. The majority draws a distinction by concluding that no such result would obtain in the instant case because a final adjudication has not been entered. Unfortunately, by engaging in speculation the majority undercuts the efficacy of the July 2, 1979 temporary custody order and permits appellant to continue to impede the hearing court in its avowed purpose of awarding temporary custody to appellee. More important, however, is the implied ruling of the majority that the administration of justice will be thwarted only when there is a final decree of custody, but not when the information is withheld during the proceeding to determine custody, precisely the point when such information will be necessary to the court in formulating a decree to effectuate the best interests of the children. In fact, at least one court has held that the current pendency of the proceeding is an important factor in determining that the information is vital to the administration of justice. See Dike v. Dike, supra, relying upon, In re Schneider, supra; cf. Tierney v. Flower, supra (adoption case).

*384 Accordingly, I would hold that by his actions appellant has impeded the administration of justice and that disclosure in the instant case would not violate the policy underlying the attorney-client rule of confidentiality. The order of October 19, 1979, should be affirmed.

. In his brief submitted to this court, appellant characterizes the October 11, 1979 Motion for Continuance as a “special appearance” for the purpose of contesting in personam jurisdiction. We note, however, that special appearances have been abolished in this Commonwealth, see Monaco v. Montgomery Cab Co., 417 Pa. 135 , 208 A.2d 252 (1965), and the only method for challenging jurisdiction is by way of preliminary objections filed within twenty days subsequent to service of the complaint, a procedure that appellant failed to utilize. See Pa.R.C.P. Nos. 1017(b), 1026.

. The hearing court found that service of the complaint and notice of the October 11, 1979 custody hearing were given to appellant in accordance with Allegheny County Local Rule 1139.4, and thus any order entered at that hearing would have been “proper.”