The New Jersey Supreme Court is considering making changes to Rule of Professional Conduct 1.6, which is the rule that governs attorney-client privilege. On May 26, a New Jersey Supreme Court committee proposed that the court amend the rule to provide an exception to the duty of an attorney to maintain the confidentiality of a client’s information when such information relates to a wrongful conviction.
In the report outlining its recommendations, the Supreme Court’s Working Group on the Duty of Confidentiality and Wrongful Convictions stated that evolving technology and the work of various groups has uncovered high numbers of wrongly convicted people in New Jersey’s criminal justice system. In order to prevent wrongful convictions in the future, the committee asserted that a rule change was necessary. The committee also stated that an attorney-client privilege exception for wrongful convictions was necessary to maintain the public’s confidence in the criminal justice system.
In making its recommendations, the committee noted that the subject of a wrongful incarceration exception to the rule was previously studied by another committee. And although the previous committee didn’t make any specific recommendations, it spoke favorably of an exception in its discussion of the procedural and practical issues involved in such a rule change.
However, the committee also noted that its members were sharply divided over the recommendations and that a strong minority recommended that no changes be made to the rule. In addition, some members of the majority expressed the opinion that the rule change should only apply to a wrongful conviction for a crime involving significant penalties.
In asserting that the proposed rule revision is similar to recent rule changes in Massachusetts and Alaska, the committee stated that there was no evidence that the changes had any impact on attorney-client relationships in those states.
Experts believe that the court is likely to be cautious regarding any significant rule changes. Several recommendations made by various rule committees over the last few years have yet to be adopted by the court, leading many to believe that the proposed changes to the attorney-client privilege rule is destined for a similar outcome. In other words, it may be several years before these changes are implemented by the court.
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