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                                         125 N.J.L.J. 1358
                                        May 24, 1990


Appointed by the Supreme Court of New Jersey


Privileged Communications:
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 words.
    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 involuntary confinement.
    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.

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