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By Michael Booth A lawyer in a palimony case who didn't tell his adversary or a trial judge that a ruling in a similar case had gone against him may have nudged the boundary of ethical conduct but didn't cross it, says New Jersey's highest court. The justices held in Brundage v. Estate of Carambio that Patrick Collins' failure to divulge the information, while not commendable, did not violate the duty of candor to the tribunal and so should not upset the result below. "[W]e cannot escape the conclusion that this attorney's behavior, although certainly calculated to work an advantage for his client based on information that was uniquely his, approached but not exceed the bounds of acceptable behavior identified by our ethical rules," Justice Helen Hoens wrote. "As such, it was a course of conduct that we neither applaud nor encourage, but nevertheless, one that our rules do not prohibit. In that context, imposing a litigation sanction upon his client cannot be condoned." In fact, two of the justices said in a concurring opinion that Collins, of Livingston's Franzblau Dratch, had done nothing but engage in vigorous advocacy. The Appellate Division had been not nearly so charitable. The judges there had toppled a $175,000 settlement in the estate case, finding the adversary and the trial court had been duped by not being told about a ruling in another case unfavorable to Collins on the issue at hand. "Vitiating a settlement tainted by such sharp practices is the only way to restore the essential elements of good faith and fair dealing, which are implicit parts of all contracts in this State," the judges wrote. But on Tuesday, Justice Helen Hoens said Collins' actions should not redound to his client's detriment. "Although we regard this attorney's behavior as worthy of reproach, in the end we cannot conclude that he violated his duty of candor to the trial court or to the Appellate Division," she wrote. "More to the point, ... we cannot endorse the decision of the appellate panel to visit punishment for the attorney's behavior on his entirely innocent client." Collins represented Carole Brundage, who sought palimony from the estate of Carl Carambio. A question arose whether Brundage had cohabited with Carambio. Prior to last month's ruling in Devaney v. L'Esperance, cohabitation was usually considered essential to palimony claims, but Collins argued it should not be. Superior Court Judge David Issenman ruled for Collins and denied a motion for leave to appeal by Collins' adversary, David Jay of Florham Park's Greenberg Traurig. The parties then agreed to a $175,000 settlement. Unknown to Jay was that Collins made the same argument, and lost, in an Essex County case affirmed on appeal, Levine v. Konvitz. When Jay later learned of it, he went back to Issenman, demanding that the settlement be vacated. One of the grounds was that Collins did not disclose, when filing a case information statement opposing Jay's motion for leave to appeal, that the Levine appeal was then pending. Issenman, who also had been left in the dark about the Levine appeal, refused and Jay returned to the Appellate Division, which overturned the settlement as a sanction for Collins "sharp practices." The appeals panel found that Collins had failed to disclose the existence of a material fact in violation of Rule of Professional Conduct 3.3(a)(5). On Tuesday, the court agreed that RPC 3.3(a)(5) was breached but said it would have recommended disciplinary action rather than finding, as the Appellate Division did, that a settlement valid on its face should be vacated as punishment. The majority found that Collins had taken advantage of a 2004 change in the RPC's language. Before then, the rule prohibited knowing failure "to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such a failure." Lawyers for years had objected to the rule, and the judiciary had been reluctant to enforce it, because of the danger it could force lawyers to reveal confidential information. The court then rewrote the rule, replacing the threshold from "tend to mislead" to "reasonably certain to mislead." Since Superior Court Judge Philip Cummis' original ruling in Levine was unpublished and could not be cited and because the appeals court had yet to rule in that matter, nondisclosure was not "reasonably certain to mislead" either Issenman or the appeals court, Hoens said. Even if Issenman and the appeals panel knew of the pending Levine matter, they might not have waited to see what happened since lower courts often reach opposing conclusions, she said. Requiring an attorney to disclose all unpublished opinions contrary to his position would "create a system in which a single adverse ruling would be the death knell of the losing advocate's practice," said Hoens. "Such a system would result in a virtual quagmire of attorneys being unable to represent the legitimate interests of their clients in any meaningful sense." Hoens also noted that Collins' legal argument was proven to be correct by the ruling in Devaney, in which the court said that cohabitation was just one of many factors that should be considered in a palimony claim and not a prerequisite. Justice Barry Albin, in a concurrence joined by Justice John Wallace Jr., said there was no reason to criticize Collins at all. "If an attorney, who protects the interests of his client within the bounds of our codified rules of professional conduct is to be condemned for 'playing fast and loose with the rules' and for engaging in 'sharp practices' and behavior 'worthy of reproach' ... then we owe it to the bar to set forth precisely what he did to merit this judicial pillory,'' Albin wrote. Despite the majority's criticism, Collins said he feels that his name and reputation have been cleared. "I feel vindication in that the court found I engaged in no violation of the Rules of Professional Conduct," he said. "I find it very hard to differ with [Justice Albin's] finding that I was very zealously representing my client." Jay did not return a telephone call seeking comment.
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A Feast
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