New Jersey Legal Ethics
1.2 Rule 1.2 Scope of Representation
1.2:100 Comparative Analysis of New Jersey Rule
• Primary New Jersey References: NJ Rule 1.2
• Background References: ABA Model Rule 1.2, Other Jurisdictions
• Commentary:
• NJ Commentary:
1.2:101 Model Rule Comparison
New Jersey adopted paragraphs (a), (b) and (c) of the ABA Model Rule 1.2. New Jersey’s versions of RPC 1.2(d) and (e) vary in several respects from the Model Rules. First, Model Rule 1.2(d) prohibits counseling or assisting a client only in criminal or fraudulent conduct. See ABA Model Rules of Professional Conduct Rule 1.2(d). The New Jersey Supreme Court added the reference to “illegal” conduct when it adopted the RPC 1.2(d). See Rules of Professional Conduct, Comment to RPC 1.4, 114 N.J.L.J., July 19, 1984. In addition, New Jersey’s RPC 1.2(d) contains language proscribing the preparation of a written instrument containing terms prohibited by law. This language was in the version of Model Rule 1.2(d) reviewed and recommended by the Debevoise Committee, see Debevoise Committee Report, 112 N.J.L.J., July 28, 1983, supp. at 8-9, but has since been deleted from the Model Rules. See ABA Model Rule 1.2(d). Finally, New Jersey’s RPC 1.2(e) provides that a lawyer “shall advise the client of” the limitations on an attorney’s conduct when the client expects the lawyer to violate the RPCs or other law. The Model Rule provision states that a lawyer in such circumstances “shall consult with the client regarding” those limitations. See ABA Model Rule 1.2(e). See Section 14:3-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.2:102 Model Code Comparison
There is no direct counterpart in the New Jersey RPCs.
1.2:200 Creating the Client-Lawyer Relationship
• Primary New Jersey References: NJ Rule 1.2
• Background References: ABA Model Rule 1.2, Other Jurisdictions
• Commentary: ABA/BNA § 31:101, ALI-LGL §§ 26-29A, Wolfram § 9.2
• NJ Commentary:
1.2:210 Formation of Client-Lawyer Relationship
Since many ethical duties and prohibitions depend on the existence of an attorney-client relationship, it is important to define the relationship and determine when and how it begins. At its most basic, it begins with the reliance by a nonlawyer on the professional skills of a lawyer who is conscious of that reliance and, in some fashion, manifests an acceptance of responsibility for it. See In re Palmieri, 76 N.J. 51, 58, 60 (1978). Thus the relationship can be created in the absence of any express agreement, in the absence of any bill for services rendered, even in the absence of any legal services. Id. It may be inferred from the conduct of the attorney and “client,” or by surrounding circumstances. Id. at 58-59.
It must, nonetheless, be “an aware, consensual relationship.” In re Palmieri, supra, at 58. On the client’s side, it must be found from “some act, some word, some identifiable manifestation that the reliance on the attorney is in his professional capacity.” On the attorney’s side, there must be a sign that the attorney is “affirmatively accepting a professional responsibility.” In re Palmieri, supra, at 58, 60.
Note that under some circumstances, preliminary consultations may be substantial enough to form the basis for an attorney-client relationship even if the attorney is not actually retained to perform any further services. See Herbert v. Haytaian, 292 N.J. Super. 426 (App. Div. 1996). See Section 13:1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.2:220 Lawyer's Duties to Prospective Client
In Procanik By Procanik v. Cillo, 226 N.J. Super. 132 (App. Div.), certif. den. 113 N.J. 357 (1988), the New Jersey Appellate Division indicated that “threshold communications” between a lawyer and a prospective client may impose certain duties and responsibilities on the attorney even if no legal representation emerges from that consultation. Id. at 146. The court held that although an attorney may decline a representation without stating any reason at all, he is not without obligation with respect to a reason he does undertake to give. Id. at 149. When an attorney, and particularly one specializing in a specific area of the law, declines a representation because of the state of the law, which he undertakes to express, he or she must know, or should know, that the prospective client will depend on the reliability of that expression, so that there is an obligation to know the settled law on that issue and to express it accurately. Id. at 150. If the law is unsettled, debatable or doubtful, the attorney is not required to be correct, but only to exercise an informed judgment based on a reasoned professional evaluation. Id. The attorney is not obligated to anticipate a change in settled law. Id. Again, however, this obligation attaches only if the attorney chooses to provide a reason. See Section 13:6-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.2:230 When Representation Must Be Declined [see 1.16:200-230]
An attorney’s failure to withdraw from or to decline a representation when required to do so by other sections of the RPCs constitutes a separate violation of RPC 1.16(a). See Matter of Libretti, 134 N.J. 123 (1993); Matter of Hollis, 134 N.J. 124 (1993).
Withdrawal from or refusal to undertake a representation may be necessary because of a conflict of interest. See RPCs 1.7 through 1.12. Similarly, RPC 3.7 prohibits the acceptance of a representation when it appears likely that the attorney will be a witness in the matter. If a lawyer is incapable of handling a matter competently because of inexperience, he or she runs the risk of violating RPC 1.1. Thus, the representation should be declined pursuant to RPC 1.16(a), or terminated if it has already begun. See Matter of Yetman, 113 N.J. 556, 562 (1989).
Furthermore, many of the situations in which disclosure of client information is required by RPC 1.6 also require the attorney to withdraw from representing the client. See N.J. Advisory Comm. on Professional Ethics Op. 642 (Apr. 26, 1990). But see N.J. Advisory Comm. on Professional Ethics Op. 680 (Jan. 16, 1995), requiring the disclosure by an attorney of information about his client’s unauthorized copying of documents that were not subject to discovery, but suggesting that the lawyer’s withdrawal from the case would not be mandatory. The Committee in Opinion 680 concluded that the attorney should evaluate all of the circumstances to determine whether he would be allowed to withdraw under the “other good cause” provision of RPC 1.16(b)(6).
See also RPC 7.3(f), prohibiting a lawyer from undertaking a representation when he or she knows that the prospective client is seeking the lawyer’s services because of an improper solicitation.
But see State v. Johnson, 274 N.J. Super. 137, 147-148 (App. Div.), certif. den. 138 N.J. 265 (1994), affirming a denial of a criminal defense lawyer’s motion to withdraw based on his receipt of privileged information that he claimed would prevent him from adequately representing his client. The court found that this was not a sufficient reason to allow withdrawal on the eve of trial. See Section 16:2-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.2:240 Client-Lawyer Agreements
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1.2:250 Lawyer's Duties to Client in General
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1.2:260 Client's Duties to Lawyer
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1.2:270 Termination of Lawyer's Authority
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1.2:300 Authority to Make Decisions or Act for Client
• Primary New Jersey References: NJ Rule 1.2(a)
• Background References: ABA Model Rule 1.2(a), Other Jurisdictions
• Commentary: ABA/BNA § 31.301, ALI-LGL §§ 32-34, 37-41, Wolfram §§ 4.4, 4.6
• NJ Commentary:
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1.2:310 Allocating Authority to Decide Between Client and Lawyer
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1.2:320 Authority Reserved to Client
The client has the authority to decide whether to accept or reject an offer of settlement. RPC 1.2(a).
1.2:330 Authority Reserved to Lawyer
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1.2:340 Lawyer's Authority to Act for Client
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1.2:350 Lawyer's Knowledge Attributed to Client
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1.2:360 Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility
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1.2:370 Appearance Before a Tribunal
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1.2:380 Authority of Government Lawyer
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1.2:400 Lawyer's Moral Autonomy
• Primary New Jersey References: NJ Rule 1.2(b)
• Background References: ABA Model Rule 1.2(b), Other Jurisdictions
• Commentary: Wolfram § 10.4
• NJ Commentary:
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1.2:500 Limiting the Scope of Representation
• Primary New Jersey References: NJ Rule 1.2(c)
• Background References: ABA Model Rule 1.2(c), Other Jurisdictions
• Commentary: ABA/BNA § 31:301, ALI-LGL § 30, Wolfram § 5.6.7
• NJ Commentary:
A lawyer need not abide by a client’s instructions if the lawyer and the client have previously agreed that the course of action requested is beyond the scope of the representation. The language of RPC 1.2(c) suggests that such an agreement may be reached at any time during the course of a representation; however, the best time to define the lawyer’s specific duties may be at the outset of an attorney-client relationship.
A retainer agreement may not limit the lawyer’s duty of competence under RPC 1.1. Such an agreement also may not limit the client’s rights to terminate the lawyer’s services at any time or to settle litigation that the lawyer might wish to continue. See Cohen v. ROU, 146 N.J. 140, 155-156 (1996).
See also N.J. Advisory Comm. on Professional Ethics Op. 671 (Apr. 5, 1993), ruling that a lawyer working pro bono at a nonprofit counseling center for abused women could not prevent the formation of an attorney-client relationship with the individuals she advised at the center, but could limit the scope of that relationship. The Committee offered some general guidelines applicable to all situations in which a lawyer wishes to define his or her duties to the client:
Attorneys and prospective clients must define the precise scope of the attorney’s representation at the outset of the relationship. A client and an attorney may agree that the attorney will see the client only once; will provide only advice; will provide advice and some intercession on the client’s behalf; will offer full representation in the matter up through and including trial court decision; will continue representation through the exhaustion of all appeals, or myriad other possible definitions of the scope of the undertaking. Whatever the scope, both the client and the attorney must achieve clear understanding and agreement at the outset of the relationship, and this understanding can only be changed with the mutual consent of both parties.
The Committee also noted that a lawyer may not limit any ethical duty to a client, such as the obligation to provide competent advice or to preserve a client’s confidences. See id. See Section 14:3-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.2:510 Waiver of Client or Lawyer Duties (Limited Representation)
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1.2:600 Prohibited Assistance
• Primary New Jersey References: NJ Rule 1.2(d)
• Background References: ABA Model Rule 1.2(d), Other Jurisdictions
• Commentary: ABA/BNA § 31:301, ALI-LGL § 151, Wolfram § 13.3
• NJ Commentary: Section 14:3-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)
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1.2:610 Counseling Illegal Conduct
Paragraphs (d) and (e) of RPC 1.2 permit a lawyer to refuse to follow a client’s instructions if they would involve the lawyer in illegal, criminal, or fraudulent activity. Moreover, RPC 1.2(d) imposes an affirmative obligation on the lawyer to avoid assisting such activity.
1.2:620 Assisting Client Fraud
See Section 1.2:610 above.
1.2:630 Counseling About Indeterminate or Uncertain Law
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1.2:700 Warning Client of Limitations on Representation
• Primary New Jersey References: NJ Rule 1.2(e)
• Background References: ABA Model Rule 1.2(e), Other Jurisdictions
• Commentary: ABA/BNA § 31:301, ALI-LGL § 165
• NJ Commentary:
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1.2:800 Identifying to Whom a Lawyer Owes Duties
• Primary New Jersey References: NJ Rule 1.2
• Background References: ABA Model Rule 1.2, Other Jurisdictions
• Commentary: ABA/BNA § 31:101, ALI-LGL §§ 72, 73, 155, 156A, Wolfram § 7.2
• NJ Commentary:
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1.2:810 Prospective Clients [see 1.2:220]
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1.2:820 Persons Paying for Representation of Another [see 1.7:400]
An attorney may enter into a fee agreement with one person covering legal services rendered to another. See Advisory Comm. Op. 27 (Feb. 13, 1964); Advisory Comm. Op. 51 (Nov. 5, 1964); and In re Rockoff, 66 N.J. 394, 396 (1975), all permitting this practice in appropriate circumstances.
When the person or entity engages a lawyer to represent a third party, the attorney-client relationship is formed with the person represented, and the duties of the attorney to that client differ in no way from the duties of an attorney to a client who is paying for the representation. See Section 33:8, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.2:830 Representing an Entity [see also 1.13:200]
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1.2:840 Representing a Fiduciary [see also 1.13:520]
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1.2:850 Class Action Clients
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