                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2002

Prudential Ins Co v. Massaro
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2977




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Prudential Ins Co v. Massaro" (2002). 2002 Decisions. Paper 420.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/420


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                 NOT PRECEDENTIAL


                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 01-2977



            PRUDENTIAL INSURANCE COMPANY OF AMERICA

                                  v.

                        JOHN J. MASSARO,

                       Defendant/Third-Party Plaintiff

                                  v.

                         JOHN DOES I-X

                            Third-Party Defendant


                            John J. Massaro,
                                     Appellant



    ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW JERSEY

                (District Court No. 97-CV-2022)
            District Court Judge: Alfred M. Wolin



           Submitted Under Third Circuit LAR 34.1(a)
                         June 25, 2002

        Before: ALITO, AMBRO, and GARTH, Circuit Judges.

                (Opinion Filed:     July 18, 2002)



                      OPINION OF THE COURT



PER CURIAM:
     Prudential Insurance Company of America ("Prudential") brought this action to
permanently enjoin its former in-house attorney in its Florida legal department, John
Massaro, from disclosing any additional confidential or privileged information about the
company. Prudential alleges that Massaro, who has already made multiple disclosures of
this nature directly to Prudential’s legal adversaries, has unjustifiably breached his duty
as Prudential’s attorney and fiduciary.   The District Court agreed. It granted summary
judgment to Prudential and ordered a permanent injunction to silence Massaro. We
affirm.
     The long factual narrative of this case is well known to the parties. The central
issue on appeal is whether Massaro’s disclosures can be justified under the crime-fraud
exception to the attorney-client privilege and the duty of confidentiality. We hold that
Massaro’s disclosures were not justified by the crime-fraud exception.
     Generally, attorneys have a duty not to disclose the confidences of their clients.
The attorney-client privilege protects confidential communications made between
attorney and client for the purpose of obtaining or providing legal assistance. See
Restatement of the Law (Third) Governing Lawyers 68 et seq. ("Restatement"). In
addition, an attorney’s broader duty of confidentiality covers "information relating to the
representation of a client," regardless of the source of that information or its disclosure
by others. Restatement 59. Disclosure of this confidential information is forbidden
where "there is a reasonable prospect that doing so will adversely affect a material
interest of the client . . . ." Id. 60. The law in Florida and in New Jersey are
substantially consistent with each other and the Restatement. See Fla. State Bar Rule 4-
1.6; N.J. Rule of Prof. Conduct 1.6.
     The crime-fraud exception to both the duty of confidentiality and the attorney-
client privilege allows an attorney to disclose confidential information in certain
circumstances. See Haines v. Liggett Group, Inc., 975 F.2d 81, 90 (3d Cir. 1992). In
Florida, an affirmative duty to disclose privileged or confidential information arises only
when necessary to prevent a crime or bodily harm. See The Florida Bar v. Lange, 711
So. 2d 518, 519-20 (Fla. 1998). In this Circuit, use of privileged material under the
crime/fraud exception requires a three-step judicial process: (1) presentation of the
factual basis for a good faith belief that the exception would apply, (2) in camera
evaluation of the material by the court, and (3) affording the party opposed to disclosure
"an absolute right to be heard by testimony and argument." See Haines, 975 F.2d at 96-
97.
     Applying the ethical rules and precedents of New Jersey, Florida, and this Circuit,
the District Court thoroughly explained why, as a matter of law, Massaro could not
prevail. It stated unequivocally that
     Massaro obviously complied with none of these procedural niceties designed
     to protect his client, Prudential, from an improvident assertion of the crime-
     fraud [exception to the] privilege. Massaro had no right unilaterally to invoke
     the crime-fraud exception; his statement to Prudential that his ethical duty
     compelled disclosure was completely contrary to law. . . .
          Absent a judicial finding [authorizing disclosure, Massaro’s] confiding
     in attorneys adverse to Prudential, giving sworn statements to authorities
     investigating the company, [and] filing an affidavit in open court all were in
     flagrant violation of Massaro’s duty as an attorney.

Appendix at 28.
     We agree that Massaro cannot justify his disclosures as within the crime-fraud
exception or upon any other basis. Though perhaps in good faith, his actions inexcusably
contravened his ethical duties as an attorney. The grant of summary judgment to Prudential
and the permanent injunction against Massaro are affirmed.

TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.




                                     Circuit Judge
