On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0803-05.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Baxter.
The practice of law is by definition adversarial, tempered only by a framework of ethical responsibilities. See Nix v. Whiteside, 475 U.S. 157, 166, 106 S.Ct. 988, 994, 89 L.Ed. 2d 123, 134 (1986). There is thus an inevitable tension created between aggressive advocacy and a lawyer's ethical responsibilities.
This case requires us to examine a particular manifestation of this tension: a lawyer's duty of candor to an appellate tribunal. Specifically, we must decide whether a lawyer, in the context of opposing a motion for leave to appeal, has a duty to disclose the existence of a pending appeal in which the lawyer is counsel of record, when the pending appeal involves the identical legal issue the appellate tribunal is being asked to consider in the motion for leave to appeal.
After a careful review of the record, and in light of the undisputed facts involved here, we hold that under the provisions of R.P.C. 3.3(a)(5), plaintiff's counsel had an affirmative duty to inform the appellate panel considering the motion for leave to appeal of a pending appeal involving a material issue, that was substantially similar or related to a material issue raised in the motion for leave to appeal in which the attorney was involved. This lawyer violated this duty, because, as attorney of record, he was actually aware of the existence of such an appeal, and failed to inform the appellate panel of its existence.
We consider this question in the following factual context.
On October 29, 2004, plaintiff Carole Brundage filed a complaint in the Family Part, Union County, seeking palimony based on an alleged oral promise of support made to her by the now deceased Carl V. Carambio. On March 2, 2005, defendant, the estate of Carl Carambio, filed its answer denying all pertinent allegations and asserting affirmative defenses.*fn1 In a case management order entered by the Family Part, the parties stipulated that decedent and plaintiff never cohabitated in a marital-type relationship.
It is undisputed that prior to the commencement of this cause of action, plaintiff's counsel was the attorney of record for the plaintiff in the case of Levine v. Konvitz, 383 N.J. Super. 1 (App. Div.), certif. denied, 186 N.J. 607 (2006). The Levine case presented the question of "whether cohabitation is an indispensable element of a cause of action seeking palimony support." Id. at 2. This legal issue was first addressed by the Family Part in Essex County in the context of a summary judgment motion, and was ultimately decided in favor of the defendant, five months before the Brundage action was filed in Union County. The trial court decision in Levine was issued by the motion judge in an unreported oral decision delivered from the bench.
Plaintiff's counsel subsequently appealed the trial court's decision in Levine. In affirming the trial court, we held that:
In order to establish a prima facie case for palimony, a plaintiff must present competent evidence showing: (1) that the parties cohabitated; (2) in a marriage-type relationship; (3) that, during this period of cohabitation, defendant promised plaintiff that he/she would support him/her for life; and (4) that this promise was made in exchange for valid consideration. [Id. at 3.]
The Levine appeal was pending before the Appellate Division when the defendant in Brundage moved for summary judgment before the Family Part in Union County, seeking to dismiss the case on the grounds that plaintiff never cohabited with decedent in a marital-type relationship. In opposing the motion, plaintiff's counsel did not advise the Union County judge of the Essex County trial court's decision in Levine. Indeed, plaintiff's counsel affirmatively stated to the Union County judge that no court had ever found cohabitation to be an indispensable element of a cause of action for palimony.*fn2
On July 1, 2005, the Family Part in Union County denied defendant's summary judgment motion, concluding that, although "the absence of cohabitation might be [a] compelling fact," it was not a "legal predicate" to sustain a palimony cause of action. On July 21, 2005, defendant moved ...