New Jersey Appellette Division Judge Jack Sabatino/photo by Carmen Natale

The New Jersey Supreme Court is seeking input on a proposed rule change that would require lawyers to speak up if they hear information suggesting an innocent person has been wrongly incarcerated.

If the revised rule is adopted, New Jersey would be the third state to adopt an exception to client-confidentiality obligations for information relating to wrongful convictions. The other two are Alaska and Massachusetts.

The proposed rule change, if adopted, would change RPC 1.6 to create an exception to the duty to keep client information confidential if that information demonstrates that an innocent person was wrongly convicted of a crime with significant penal consequences. The judiciary is accepting written comments through June 26 on the proposal made public Wednesday.

The proposal caused a division among the 21-member Supreme Court Working Group on the Duty of Confidentiality and Wrongful Convictions, with a majority favoring the amendment, according to a report by the group's chairman, Jack Sabatino, the Appellate Division deputy presiding judge for administration.

"The majority acknowledges that lawyers who reveal client confidences to remedy a wrongful incarceration necessarily harm their own client," Sabatino wrote. "The majority accepts that the client is likely to suffer consequences—the same consequences that the innocent person is currently suffering. Given the tension between a weighty moral obligation and the duty of confidentiality, the majority resolves the tension in favor of the moral obligation."

A significant minority of the group recommended no change, including representatives of the offices of the attorney general and public defender, Sabatino said. Those group members  "adamantly insist that lawyers should not disclose information that is likely to expose their clients to criminal liability. The recommended new rule would require the lawyer to disclose that the client has committed a crime. This proposed exception would require lawyers not only to betray their clients, but also to inflict direct harm on them," Sabatino wrote.

The working group considered recommending the rule be changed only if the state is prevented from using that client's statement in a future prosecution of them, Sabatino wrote. There is currently no statutory mechanism for providing immunity when one person offers information about another's wrongful conviction or incarceration, he wrote.

Granting immunity offers protection to the client, but "the group decided that a rule change contingent on enactment of such an immunity statute simply is not viable," Sabatino wrote.

"The Working Group does not recommend that the court request the legislature to pass a new immunity statute. An immunity statute for reporting a wrongful conviction is likely to be controversial and is readily subject to abuse," Sabatino wrote.

In addition to Sabatino, the working group included seven other state judges, six representatives of state agencies, two representatives of academia, as well as other members from the New Jersey State Bar Association, the Garden State Bar Association, the ACLU, the Hispanic Bar Association of New Jersey, the Muslim Lawyers Association of New Jersey and the Association of Criminal Defense Lawyers of New Jersey.