In Departure From Seeling – Not Unethical To Withhold NJSA 2C:40-26 Info From Prosecutors

On February 17th, the Appellate Division ruled in the unpublished decision captioned State v. Kane that a defense attorney has no ethical obligation under RPC 3.3(a)(5) to alert a prosecutor that his client’s plea to driving on the revoked list will foreclose a later criminal prosecution under NJSA 2C:40-26.

In so doing, the Court distinguished the holding in In re Seelig, 180 NJ 234 (2004) which held that defense attorneys have an affirmative duty as officers of the court to reveal information to the trial judge that might mislead the court.

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