Tuesday, July 15, 2008

Hold The Applause

In a case that explores "the intersection between zealous representation and an attorney's obligation of candor to a tribunal," the New Jersey Supreme Court held the the failure of an attorney to disclose an adverse court decision (an unpublished opinion that is not considered precedent) did not violate the prohibition against false statements of fact or law. While the court disapproves of "sharp practices," the carefully worded brief that the lawyer filed was not calculated to mislead the tribunal:

If the Court were to conclude that an attorney has an affirmative duty to advise his adversary or the court of every unpublished adverse ruling against him, a system would be created in which a single adverse ruling would be the death knell to the losing advocates practice. Nor would it advantage the system of justice.

The court reached this result "with some reluctance." The issue related to an unpublished "palimony" decision that the attorney knew about because he was counsel in the case. In that case, the court had ruled that cohabitation was an element of a palimony claim. In the present matter, the attorney's client could not establish cohabitation. After this second (present) case had settled, the adverse decision was published. The other side moved to set aside the settlement on a theory of concealment of a material fact or anticipatory breach. The court here refused to grant such relief, holding that the non-disclosure "was a course of conduct the Court neither applauds nor encourages, but one our rules do not prohibit." The decision of the Appellate Division was reversed. Sanctions against the lawyer's client "cannot be condoned."

A concurrence would find that the lawyer's conduct crossed no ethical line and that he does not deserve to be "publicly castigated." (Mike Frisch)


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