Lawyers are divided over a proposed rule change that would require them to disclose information about wrongful incarceration of an innocent person.

A Supreme Court committee proposed on May 26 that the court should amend RPC 1.6 to provide an exception to a lawyer's duty to maintain confidentiality of information relating to representation of a client when that information relates to a wrongful conviction.

The court has asked lawyers to submit comments on the proposal before June 26. But just as the committee that studied the issue was divided, lawyers who discussed the proposal are split.

Bennett Wasserman, an ethics lawyer who is vice president and general counsel of Legalmalpractice.com, sees no major damage to attorney-client privilege from the change.

"In the grander scheme of things, I think breaching confidentiality where you've got real, solid evidence, including a confession by the defendant that they're the guilty one, it's a minor price to pay, and it's the right price to pay. If someone is guilty, another person should not be incarcerated," Wasserman said. "Not only do we represent our clients, but we are officers of the court and we owe a duty to the system of justice. My moral compass would be in favor of breaching the attorney-client privilege."

Wasserman said he viewed the rule change issue through the context of his recent experience serving as an expert in a malpractice suit involving a client who was wrongly convicted of a crime and incarcerated.

"That was a very moving case. I must tell you I am convinced that the proposal is really a very, very small sacrifice that the legal profession has to make in order to remedy the horrific tragedy of a wrongful incarceration," Wasserman said.

The state Supreme Court is likely to be "very cautious" before adopting any significant rule change. A proposed rule concerning malpractice insurance, which was issued three years ago by another rules committee that Wasserman participated on, still has not been adopted by the court.  On the present proposal, "I don't know how the court is going to go, but my sense is the court has to do what's right," Wasserman said.

The Supreme Court's Working Group on the Duty of Confidentiality and Wrongful Convictions said in its 27-page report that, "Due to evolving technology and the efforts of conviction review groups, it has become apparent that there are too many innocent people in jail. This country has long been repulsed by the specter of an innocent person wrongly convicted; when such cases come to light, the public loses confidence in the criminal justice system."

The committee said the issue of a wrongful incarceration exception to RPC 1.6 was previously studied by the Professional Responsibility Rules Committee. That group did not present a specific recommendation, but spoke favorably of an exception while discussing practical and procedural issues in implementing such a rule change.

The committee also said in its report that its members are sharply divided, with a strong minority recommending no change to the rules. Some members of the majority felt the rule change should be triggered by a wrongful conviction for a crime with significant penal consequences, while others say it should apply to any conviction, even if no one has been incarcerated, the report said.

Bruce Green, who teaches ethics and criminal law at Fordham University School of Law, said the impetus for encouraging lawyers to come forward with information about wrongfully incarcerated people stems in part from the case of Alton Logan. Logan, of Chicago, spent 25 years behind bars for a murder he did not commit, before disclosure of another man's confession prompted authorities to drop the charges against him in 2008, according to the website of a legal clinic at Northwestern University that helped exonerate him.

Two public defenders knew another man confessed to the murder, but they did not reveal the confession because of attorney-client privilege. But they obtained an affidavit from the other man, which they put away until the man died, at which point they no longer felt bound to keep his secret.

New Jersey's proposed revision is similar to rule changes adopted in Alaska and Massachusetts, although those states made disclosure optional, Green said. He said there was no evidence that the policy had any impact on attorney-client relationships in those states.

Green said he supports a narrow exception to RPC 1.6 allowing lawyers to disclose information that would help exonerate wrongfully incarcerated people after the person making the disclosure has died. "That's less likely to chill candid disclosure. I kind of understand all the concern on the other side. It's not always clear that disclosing the information is going to make a difference, which suggests at most it ought to be discretionary."

Robert Levy, of Scarinci Hollenbeck in Lyndhurst, saw the proposal differently. He initially had concerns that the rule change would require him to "dime out" his clients, but later concluded, "Ultimately the greater good is to have people who are wrongfully incarcerated be not wrongfully incarcerated. There's a balance here. Under certain circumstances, the attorney-client privilege would be breached, but there is a greater good. I'm in support of the amendment to the RPCs," he said.

Levy likes the idea of making the disclosure optional, so that lawyers can consider its impact on their own client. The rule change would obligate attorneys to explain to their clients at the outset of representation that the attorney-client privilege has its limits, just as mental health practitioners advise their clients about limits to confidentiality of what's discussed in therapy sessions, said Levy.

But some other lawyers opposed the proposal. Ron Bar-Nadav, a criminal defense attorney in Hackensack, called it "a dangerous proposition."

"Ultimately a client has to be able to trust the attorney. If any defendant learns he can't trust the attorney, there's trouble with the whole representation. It defies common sense," said Bar-Nadav.

The rule would expose lawyers to lawsuits if they reveal confidential information about their clients, he said.

Bar-Nadav doesn't doubt that some people in jail do not belong there, but lawyers shouldn't have to compromise their own clients' rights to help exonerate someone, he said.

"Nobody wants an innocent person in jail. What they're doing is giving us a duty to defend a person who's not our client," Bar-Nadav said.

John Azzarello, immediate past president of the Association of Criminal Defense Lawyers of New Jersey, said his group is strongly opposed to the rule change.

"To change this rule strikes at the very heart of the attorney-client relationship. It's so important to build trust and that is a two-way street," said Azzarello, of Whipple Azzarello in Morristown. "To think that the rule will be changed threatens to undermine the entire relationship and threatens to undermine a tenet of the criminal justice system. I think it's a terrible idea."