New Jersey Legal Ethics
INTRODUCTION
0.1:100 Sources of Law and Guidance
0.1:101 Professional Codes
The Rules of Professional Conduct are the New Jersey Supreme Court’s official codification of the rules governing the conduct of attorneys in New Jersey. See Section 1:2-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
0.1:102 "Other" Law and Moral Obligation
The New Jersey Supreme Court of New Jersey has carried out its constitutional authority to govern “the admission to practice and the discipline of persons admitted,” by the adoption of rules governing attorney conduct and by the issuance of opinions construing the rules. New Jersey Constitution of 1947, Art. VI, sec. 2, para. 3. In addition, the New Jersey Supreme Court has established a number of committees to consider issues arising under the rules. As a result, the substantive law of New Jersey attorney ethics consists of the Rules of Professional Conduct, the Rules Governing the Courts of the State of New Jersey, the opinions touching on attorney ethics issued by the New Jersey Supreme Court, and the opinions issued periodically by the committees of the Supreme Court, specifically, the Advisory Committee on Professional Ethics, the Committee on the Unauthorized Practice of Law, and the Committee on Attorney Advertising. There are also a number of secondary sources, such as the Administrative Guidelines issued by the Court and Advertising Guidelines recommended by the Committee on Attorney Advertising and approved by the New Jersey Supreme Court.
In addition, when state and certain federal courts interpret the New Jersey Supreme Court’s rules, case law, and committee opinions, their decisions are binding on New Jersey attorneys.
The New Jersey Supreme Court has established a number of committees to administer various categories of attorney conduct. These committees advise the New Jersey Supreme Court, and engage in decision making and in the development of regulations relating to nearly every significant aspect of ethics law. The New Jersey Supreme Court has created District Fee Arbitration Committees (pursuant to New Jersey Court R. 1:20A-1 et seq.); an Ethics Financial Committee (New Jersey Court R. 1:20B-1 et seq.); the Client Security Fund (New Jersey Court R. 1:28-1 et seq.); a Board on Trial Attorney Certification (New Jersey Court R. 1:39-1 et seq.); a Board of Bar Examiners (New Jersey Court R. 1:23-1 et seq.) and established a Skills and Methods Course pursuant to New Jersey Court R. 1:26.
The most important committees from an ethics perspective are those that render opinions on the substantive law of attorney ethics: the Advisory Committee on Professional Ethics, established pursuant to New Jersey Court R. 1:19-1; the Committee on the Unauthorized Practice of Law, established pursuant to New Jersey Court R. 1:22; and the Committee on Attorney Advertising, established pursuant to New Jersey Court R. 1:19A-1.
The New Jersey Supreme Court Advisory Committee on Professional Ethics was established in 1963 and has to date issued over 680 opinions. The Advisory Committee is comprised of 15 members of the bar and three lay members who serve for terms of three years each. Six of these terms expire each year. The Administrative Director of the Courts is the secretary of the committee. New Jersey Court R. 1:19-1.
The Advisory Committee responds to inquiries “concerning the proper conduct for a member of the legal profession” under the RPCs or under the New Jersey Court Rules. See New Jersey Court R. 1:19-2. See also Higgins v. Advisory Committee on Professional Ethics, 73 N.J. 123, 124 (1977). And see N.J. Advisory Comm. on Professional Ethics Op. 402 (July 27, 1978), dealing with both disciplinary and court rules. In N.J. Advisory Comm. on Professional Ethics Op. 650 (May 2, 1991), the Committee explained that it does not accept inquiries that require statutory interpretation or analysis of court decisions. See Sections 1:1 and 1:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
0.1:103 Background of the New Jersey Rules of Professional Conduct
The New Jersey Constitution of 1947 granted the New Jersey Supreme Court the authority to “make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts.” Art. VI, sec. 2, para. 3. It also granted the New Jersey Supreme Court “jurisdiction over the admission to the practice of law and the discipline of persons admitted.”
New Jersey’s Rules of Professional Conduct were adopted on the advice of a special New Jersey Supreme Court Committee assigned to study the American Bar Association’s Model Rules of Professional Conduct. That Committee, known as the Debevoise Committee, prepared a report that was published as a special supplement to the New Jersey Law Journal on July 28, 1983. See Report of the New Jersey Supreme Court Committee on the Model Rules of Professional Conduct, N.J.L.J., July 28, 1983, supp. at 1-24 (hereinafter “Debevoise Committee Report”).
When the New Jersey Supreme Court adopted the Rules of Professional Conduct on July 12, 1984, it accepted many of the Debevoise Committee’s suggestions and added a number of changes of its own. The Rules, as modified, were published in another special supplement to the New Jersey Law Journal on July 19, 1984, and became effective on September 10, 1984. See Rules of Professional Conduct, N.J.L.J., July 19, 1984, supp. at 1-16. This initial version of the RPCs included an explanatory comment after each rule. With respect to this commentary, the New Jersey Supreme Court stated as follows:
The explanatory comments that follow each rule have not been adopted by the New Jersey Supreme Court nor should they be considered as a formal part of the rules. For assistance in interpreting these rules, reference should be made to the official ABA Comments and the commentary by the Debevoise Committee.
See Sections 1:1 and 1:2-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
0.1:104 Unusual Aspects of the New Jersey Ethics Rules
In adopting the RPCs, New Jersey has departed significantly from the Model Rules of Professional Conduct and those adopted in other states. Conduct in a variety of areas with respect to conflicts of interest, New Jersey retains the appearance of impropriety standard as a basis for disqualification. In most instances, moreover, it does not embrace “screening” or “walls” within a law firm as a cure to a conflict.
New Jersey’s RPCs require disclosure in a variety of instances for which confidentiality would be the norm under the Model Rules of Professional Conduct. There are the wealth of other distinctions between New Jersey and the Model Rules of Professional Conduct are outlined herein and explored comprehensively in Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
0.2:200 Forms of Lawyer Regulation in New Jersey
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0.2:210 Judicial Regulation
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0.2:220 Bar Organizations
In New Jersey, the bar associations do not issue ethics opinions and do not have licensing or disciplinary authority, all of which is reposed in the New Jersey Supreme Court.
0.2:230 Disciplinary Agency
While the New Jersey Supreme Court maintains final authority over attorney discipline, the New Jersey Supreme Court has created subordinate units “[t]o assist in the administration of its disciplinary functions[.]” New Jersey Court R. 1:20-1. Pursuant to that rule, the New Jersey Supreme Court has established District Ethics Committees, a Disciplinary Review Board, a Disciplinary Oversight Committee, and an Office of Attorney Ethics and a Director.
The Office of Attorney Ethics serves as the primary prosecuting agency for attorney disciplinary cases in New Jersey and has substantial exclusive jurisdiction. Absent a disciplinary stipulation, the matter usually proceeds before a District Ethics Committee with either the Office of Attorney Ethics or a District Ethics Committee member serving as prosecutor. The attorney-respondent in such actions may be represented by counsel. Matters decided by the District Ethics Committee are reviewed by the Disciplinary Review Board. The decisions of the Disciplinary Review Board, in turn, are reviewed by the New Jersey Supreme Court. The New Jersey Supreme Court is assisted in its evaluation and review of the disciplinary system by the Disciplinary Oversight Committee. See Section 42:2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
0.2:240 Disciplinary Process
An ethics case begins with a grievance and, when warranted, continues through investigation, a formal complaint process, hearings, review by the Disciplinary Review Board and final action by the New Jersey Supreme Court.
Most disciplinary matters begin when an individual who believes he or she was aggrieved as the result of an attorney’s misconduct complains to an ethics official. Usually, a grievance is first presented to the secretary of a District Ethics Committee
The matter must be docketed and investigated but the secretary can decline jurisdiction in certain specific situations.
In the ordinary case, the chair of a District Ethic Committee will assign a docketed grievance to an attorney member of the District Ethics Committee for investigation. New Jersey Court R. 1:20-3(g)(1). The investigation may also be conducted by the Office of Attorney Ethics.
At the conclusion of the investigation, the investigator must provide a written report to the chair of the District Ethics Committee, with a copy to the District Ethics Committee secretary. New Jersey Court R. 1:20-3(h). The report must include the facts as found by the investigator and a recommendation as to the appropriate action to be taken. Id. If the misconduct is minor, the matter may be eligible for diversion by way of agreement in lieu of discipline. New Jersey Court R. 1:20-3(h)(1). Ordinary misconduct cases will proceed in one of two ways: 1) by the filing of a complaint, New Jersey Court R. 1:20-4; or 2) by discipline by consent, New Jersey Court R. 1:20-3(h)(3)(B).
Formal proceedings in ethics matters begin on the filing of a complaint and proceed through a hearing before either a hearing panel of a District Ethics Committee, or when appropriate, before a special ethics master to a disposition either by dismissal or by recommendation for discipline.
The respondent attorney must file and serve an original and five copies of an answer to the complaint within 21 days of being served. New Jersey Court R. 1:20-4(e).
Disciplinary hearings are not required in all cases, but rather are reserved for those matters in which the pleadings raise genuine fact issues, the respondent attorney has asked to be heard in mitigation, or the presenting attorney has asked to be heard in aggravation. New Jersey Court R. 1:20-6(c)(1).
Ethics proceedings involving standard misconduct are disposed of in one of three ways. First, if the trier of fact concludes that there has been no misconduct, the matter is to be dismissed. New Jersey Court R. 1:20-6(c)(E)(i). Second, if the fact finder concludes that there has been misconduct but that an admonition is the proper penalty, the panel chair or special ethics master submits the hearing report, record of proceedings and the discipline recommendation to the Office of Attorney Ethics director for transmittal to the Disciplinary Review Board for action. New Jersey Court R. 1:20-6(c)(E)(ii). Third, in cases in which the recommended discipline is more than an admonition, the panel chair or special ethics master submits the hearing report, record of proceedings including the hearing transcript and the discipline recommended to the Office of Attorney Ethics director for transmittal to the Disciplinary Review Board for action. New Jersey Court R. 1:20-6(c)(E)(iii).
The Disciplinary Review Board has review jurisdiction when, after investigation or hearing, there has been a finding that no ethical breach occurred, and in all cases in which an ethical violation has been found and discipline is recommended. The procedures at the Disciplinary Review Board level differ depending on the type of review and the discipline recommended.
Final authority for all disciplinary matters rests, ultimately, with the New Jersey Supreme Court. See Sections 42:3, 42:3-1, 42:3-2, 42:3-3 and 42:3-4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
0.2:245 Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude
On the conviction of any attorney for any “serious crime,” the New Jersey Supreme Court is obliged by New Jersey Court R. 1:20-13(b)(1) to enter an order immediately suspending the attorney from practice. The term “serious crime” is defined by the rule to include:
any crime of the first or second degree as defined by the New Jersey Code of Criminal Justice [N.J.S.] 2C:1-1 et seq.); or any felony of the United States or the District of Columbia or of any state, territory, commonwealth or possession of the United States; or any other crime of [New Jersey or elsewhere in the United States], a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction where the judgment was entered, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft; or any attempt, conspiracy or solicitation of another to commit a ‘serious crime,’ violations involving criminal drug offenses, excluding solely minor possessory offenses.
New Jersey Court R. 1:20-13(b)(2).
With respect to the final discipline to be imposed after conviction of a crime, the New Jersey Supreme Court does not apply a strict formula or an automatic rule of disbarment (except in trust accounting misappropriation cases), although disbarment is typically imposed on attorneys convicted of serious crimes. See Section 42:4-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
0.2:250 Sanctions in Judicial Proceedings
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0.2:260 Criminal and Civil Liability
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0.2:270 Federal Courts and Agencies
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0.2:280 Ethics Rules Applied in Federal Courts in New Jersey
Local Civil Rule 103.1(a) of the United States District Court of New Jersey Rules (as renumbered in 1997) provides that the “Rules of Professional Conduct of the American Bar Association as revised by the New Jersey Supreme Court shall govern the conduct” of attorneys in the District Court, subject only to such modification as is required by federal law and practice. Thus, with few exceptions, attorneys are subject to the same ethical strictures in both state and federal settings. See Section 42:6-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
0.3:300 Organization of This Library and the Model Rules
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0.4:400 Abbreviations, References and Terminology
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0.4:410 "Belief" or "Believe"
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0.4:420 "Consults" or "Consultation"
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0.4:430 "Firm" or "Law Firm"
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0.4:440 "Fraud"
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0.4:450 "Knowingly," "Known," or "Knows"
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0.4:460 "Partner"
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0.4:470 "Reasonable" or "Reasonably"
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0.4:480 "Reasonable belief" or "Reasonably believes"
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0.4:490 "Substantial"
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0.4:500 Additional Definitions in New Jersey
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