THE NEW JERSEY LAW JOURNAL - JULY 11, 1994

A NOT-SO-PRIVILEGED ATTORNEY-CLIENT COMMUNICATION

By Michael Booth

It started as just another medical malpractice case, but it would give Glenn Bergenfield an opportunity few plaintiffs' attorneys ever get---the chance to ask an opposing lawyer what the lawyer's client told him in privileged communications.

And while Bergenfield didn't get everything he wanted, the Princeton solo practitioner managed to secure an Appellate Division ruling that creates an exception to the attorney-client privilege, a privilege that dates back centuries and is usually considered inviolate.

Bergenfield represents Lillian Charles, a Belleville woman who suffered a pulmonary embolism after breast surgery. In pretrial statements, the doctor who performed the operation, Paul Servidio of Bloomfield, insisted that he had told Charles on numerous occasions that there could be serious medical complications unless she stopped smoking and lost weight: Charles maintained that she never received such warnings.

Comparing the statements, Bergenfield noticed something else in the discovery material he had received from defense attorney James Vasios of Short Hills' Hurly & Vasios: A date on reports supposedly written by Servidio looked like it had been changed.

Intrigued, Bergenfield called the company that printed the report forms and learned something else: The forms Servidio supposedly used to write his reports about Charles were not printed until almost a year that particular notation had been made.

Bergenfield pointed out the apparent oddities when he deposed Servidio last Oct. 3. Servidio said he couldn't explain them but he denied altering or recreating the reports.

About a month later Vasios withdrew from the case and the insurance carrier, Princeton Insurance Co., substituted as defense counsel Craig Combs of Morristown's Giblin & Combs.

Bergenfield, though, smelled something wrong. In court papers, he accused Servidio of fraud and added that be believed Vasios decided he could not represent Servidio because of that alleged fraud.

ASKING POINT-BLANK

To prove the fraud, Bergenfield says, he had only one viable option, and that was to depose Vasios and ask him point-blank whether Servidio admitted anything to him or whether Vasios also suspected fraud.

Bergenfield took his argument to Essex County Superior Court Judge Renee Jones Weeks, who had been hearing pretrial motions in the case. The judge agreed that Bergenfield did have the right to depose Vasios based on his suspicions.

In the interlocutory appeal that followed in the case, Charles v. Servidio et al., Essex Docket No. 92-3306, a three-judge Appellate Division panel also sided with Bergenfield on June 13, with some restrictions.

Appellate Division Judge William Dreier, writing for the panel, said Bergenfield could question Vasios about any statements Servidio may have made to him about any plans he had to commit fraud in the future, but added that the privilege would apply to any statements Servidio may have made about any fraud committed in the past.

The result was a June 14 deposition at which Bergenfield---between repeated objections from Giblin & Combs associate Steven Schwesinger and Vasios's attorney, Maureen Mahoney of Roseland's Connell, Foley & Geiser, and a telephone conference with Weeks---grilled Vasios about his relationship with Servidio and his knowledge of the case for almost three hours.

"I wanted to know what he [Servidio] said to him [Vasios]." Bergenfield says. "There is no privilege to use your attorney to diddle with the system, and that is what Servidio was doing. You cannot use your attorney to trick other people."

Combs denies his client perpetrated a fraud. Vasios and Servidio did not return telephone calls seeking comment.

PULLING NO PUNCHES

Bergenfield acknowledges that he was accorded a rare opportunity but insists that he should have gotten more. "I wanted to know anything this guy said to Mr. Vasios, especially if there has been a crime committed." In his brief opposing Mahoney's motion to quash Vasios' subpoena for disposition, Bergenfield pulled no punches in accusing Servidio of fraud. "We are taking the unusual step of seeking the deposition of defendant's prior counsel because the defendant has used his lawyer to cover up his criminal and fraudulent activities in the defense of this case," Bergenfield wrote.

"While our system goes to great length to maintain the sanctity of the attorney-client relationship, it does not to this far. I want to know what Servidio said to Vasios that caused Vasios to quit.

"Servidio not only created fraudulent records and committed perjury, he tried to use his lawyer to sanctify the crime, to run interference for him. I intend to call Mr. Vasios as a witness against Dr. Servidio at trial in order to prove his dirty deeds, his corrupt and shameful attempt to blame his patient for his own malpractice. I find this behavior so appalling that I intend to request that the Essex County Prosecutor's Office have a representative in the courtroom when the testimony of Dr. Servidio's misdeeds is presented."

In papers filed with the appeals court, Mahoney said Servidio would not waive attorney-client privilege and added that Bergenfield had no right to question Vasios about any statements Servidio may have made to him.

"The privilege recognizes that sound legal advice or advocacy serves public ends and rests on the need to encourage full and frank communication between attorneys and their clients." Mahoney wrote. "The codification of the attorney-client privilege provides that it is a privilege afforded to the client; the client has a privilege (a) to refuse to disclose any communication, and (b) to prevent his/her lawyer from disclosing it. The lawyer is obligated to claim the privilege unless otherwise instructed by the client."

Mahoney said Bergenfield had other options available to him if he wanted to prove fraud. "Here the plaintiff already has sufficient circumstantial evidence through documents indicating that Dr. Servidio altered his records." She wrote. "The documentation is obviously the less intrusive source. There is no need to explore the communications between James Vasios and Paul Servidio to prove that Dr. Servidio altered his records."

Charles, according to Bergenfield, had breast reconstruction surgery in 1989 and later suffered "horrific and permanent" post-surgical complications. She said a year later that Servidio had failed to warn her that the surgery was high-risk and that he never told her that her risks for later problems were higher because she was overweight and smoked. But Servidio's office notes "contradicted Mrs. Charles thoroughly and completely."

"He even wrote that he had discussed her going to a psychologist, an acupuncturist, and endocrinologist and to Weight-Watchers, all in a vain attempt to stop smoking and lose weight prior to the surgery." Bergenfield wrote. "Obviously, either Mrs. Charles had not told me the truth or these records were phony. I re-interviewed my client and felt certain that she had told me the truth."

'SUSPICIOUS MISTAKE'

Bergenfield motes that Servidio's reports show an office visit on March 13, 1992, and the next visit on April 17, 1990. "This is a suspicious mistake," he wrote to Weeks. Bergenfield had sent Vasios a demand for further documents, and later received copies of the reports he already had.

"But now the error had been corrected," he wrote. "The '1992' was changed (in a clumsy way to '1990' to be consistent with the other dates. Servidio had committed false swearing, fixing a mistake made during a previous false swearing.

"And Vasios was in the position of telling me that these false records were genuine and constituted Servidio's entire file." Bergenfield says he also called the company that printed the report forms. Medical Arts Press, and learned that the forms were not created until August 1990.

Servidio's office notes, he adds, ran from April 1989 to September 1990, and Servidio didn't order the forms until 1991.

At the Oct. 3 deposition, Bergenfield questioned Servidio about the apparent discrepancy, asking whether the doctor would be surprised to learn that the form hadn't been created until August 1990.

"I don't know," Servidio replied.

Bergenfield: "Doctor, did you reconstruct this entire file in 1992?"

Servidio: "No, I didn't."

Bergenfield: "Did you write, for example during 1992 and just make a mistake and write in March 13, 1992, And then later change it?"

Servidio: "No, I didn't."

Vasios quit the case a month later, and Bergenfield says he believes Vasios knew nothing of the alleged fraud until after Servidio's deposition.

"I know Vasios a little bit." Bergenfield wrote to Weeks, "I have asked others about him. I don't think he knew. He would not have been willing to represent someone who was using him to perpetrate a fraud on the court."

DOCTORING THE RECORDS?

At the June 14 deposition, which followed the Appellate Division ruling, Bergenfield's questioned Vasios but was not allowed to ask whether Servidio told him during his time as counsel whether he doctored the records.

Vasios, who through his answers seemed to be uncomfortable about answering questions, said another attorney told him about the discrepancy in the dates but he did not call Servidio about them, and added that he intended to ask the doctor about them at the deposition.

"Do you know what happened to Dr. Servidio's original records?" Bergenfield asked.

"I think so." Vasios replied.

"What is your knowledge based upon?"

"Something Dr. Servidio said."

"What was it that Dr. Servidio said to you that happened to his original records?"

Schwesinger objected, and Bergenfield asked:

"In your judgment, did Dr. Servidio admit to you at any time that he had committed anything that could be a crime under the laws of the state of New Jersey?"

Schwesinger again objected, and Vasios did not answer the question.

After a telephone conference with Weeks, who said Bergenfield could as Vasios questions about any statements Servidio may have made about possible future conduct, the deposition continued and Vasios said he advised Servidio that he could not represent him and that he should consult his personal attorney.

"There was just no doubt that my firm was getting out of the case immediately," Vasios said.

"Did Dr. Servidio at any time---say that he intended to rely on the records and/or intended to take the stand and maintain that these records were authentic or genuine?"

"No. I can't really say that he indicated that," Vasios said.

With that the deposition ended.

NO APPEAL PLANNED

Bergenfield says he would have liked to have been able to question Vasios more, but adds he does not plan to appeal to the Supreme Court for permission to do so before the case goes to trial. No trial date has been set, he says.

"I don't know how he [Servidio] is going to take the stand and not commit fraud," Bergenfield says. "And I intend to call Vasios as a witness."

Combs says the case will not come to that, however. "This case is about informed consent, not whether a procedure should have been done. All claims against him {Servidio] have been denied."

Combs denies any allegations of fraud on Servidio's part, but adds that he cannot say anything about what Vasios might have heard or learned from his former client. "I can't comment on Vasios," Combs says.