PRUDENTIAL INSURANCE COMPANY OF AMERICA v. JOHN J. MASSARO v. JOHN DOES I-X Third-Party

NOT PRECEDENTIAL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

-- 1 of 2 --

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

-- 2 of 2 --