Link to original WordPerfect Document
125 N.J.L.J. 1358
May 24, 1990
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the Supreme Court of New Jersey
Disclosure of Material Fact Which, If Not
Disclosed, May Tend to Mislead the Tribunal
Inquirer represented a defendant husband in a divorce which
involved, among other issues, the husband's right of visitation
with a four-year old daughter. The husband has a history of mental
illness, with prior in-patient treatment. A pendente lite order
permitted the husband to visit, but required that the husband
continue psychiatric counseling, with a requirement that the
treating psychiatrist advise the court of any missed visits or
signs of deterioration in condition.
The husband then advised inquirer that he could no longer
afford the attorney fees for representation, and was going to apply
for a court appointed attorney. Inquirer indicated that he would
prepare a substitution of attorney, and asked the husband to advise
him promptly of the name of the new attorney, or the fact that he
would appear pro se, so that the substitution could be filed.
One week later, inquirer received a call from the husband
indicating that he had been involuntarily hospitalized in the
psychiatric ward of a New York hospital, and asking for the name of
a New York attorney to help him get released.
Inquirer advised the husband to seek help from a staff
attorney in the hospital; the husband instructed inquirer not to
advise the court or his wife of the hospitalization. The husband
was released approximately three weeks later and notified inquirer
that he would be representing himself. In this interchange,
inquirer advised that he might have an ethical responsibility to
disclose the hospitalization to the court. The husband again
instructed inquirer not to do so, contending that the
hospitalization had nothing to do with his psychiatric condition,
but rather was the result of a mistake by local police. Inquirer
then executed and filed a substitution of attorney.
Inquirer asks whether the disclosure requirements of RPC 3.3
override or create an exception to the basic confidentiality rule
set forth in RPC 1.6. The tension between these two rules, and the
emphasis on disclosure, is a well-known feature of the current
Rules of Professional Conduct; see generally Supreme Court
Committee Report on the Model Rules of Professional Conduct,
Supplement, 112 N.J.L.J. 93, at 9-10, 13 (July 28, 1983).
It is plain from the language of RPC 3.3(b) that if a
situation falls within the types of situations described in RPC
3.3(a), the duty to disclose will "apply even if compliance
requires disclosure of information otherwise protected by RPC 1.6."
The issue thus becomes whether the circumstances presented clearly
fall within RPC 3.3(a).
Two parts of RPC 3.3(a) are arguably involved. Subparagraph
(2) requires disclosure of a "material fact" when "necessary to
avoid assisting an illegal, criminal or fraudulent act by the
client." We do not find that the client's actions here constitute
illegality, criminality, or fraud in the normal meanings of those
More troubling is RPC 3.3(a)(5), which requires disclosure of
a "material fact" when the lawyer has "knowledge that the tribunal
may tend to be misled by such failure." Two issues emerge: is there
a material fact, and will its absence tend to mislead the tribunal?
As to the first, in the situation presented, the lawyer has been
made aware of the fact of hospitalization, but has not been
apprised of the cause, and indeed the client disputes this point.
At this point, no "fact" has been established concerning the cause.
By contrast, psychiatric hospitalization has been established
as a fact, and based upon the inquirer's recitation, it would
appear to be material. Ultimately, however, whether this fact is
material, and whether failure to disclose may or may not be
misleading, depends upon the totality of the other current
information before the court. Such a decision is committed to the
professional judgment of the lawyer by the Rules of Professional
Conduct and the reasonable exercise of that judgment is all that is
required. It is not within the capability or proper role of this
Committee to attempt such fact-sensitive determinations on a case
by case basis.
While no language in RPC 3.3 expressly invites or authorizes
a balancing of interests, we note that requiring disclosure in the
circumstances presented would have especially harsh consequences.
It would amount to penalizing an individual's effort to escape from
Our Supreme Court has repeatedly recognized the necessity of
a sensitive balancing of interests in cases where the duty of and
need for confidentiality clashes with interests served by
disclosure. See Matter of Nackson, 114 N.J. 399 (1986); Fellerman
v. Bradley, 99 N.J. 493 (1985); In re Opinion 544, 103 N.J. 399
(1986). The use of "shall" in RPC 3.3, however, appears to leave
little room for such balancing of competing interests in a
situation covered by RPC 3.3(a). Nonetheless, some weighing is
possible and necessary in the lawyer's exercise of professional
judgment. A decision that a fact is really material, or that a
tribunal will actually be misled in the absence of disclosure, is
not to be made lightly or easily, especially where, as here, there
are serious negative implications of disclosure, chilling essential
communications to an attorney.
Inquirer also asks whether the duty to disclose continues even
after his involvement in the proceeding has terminated, which in
this case occurred upon the filing of the substitution with the
court. Since by that time whatever duty to disclose which may exist
under RPC 3.3(a) had already been formed, we make no attempt at
this time to resolve the question of a lawyer's duty when the
knowledge comes to the lawyer after discharge.
* * *
This archive is a service of
Rutgers University School of Law - Camden