Supreme Court Releases Final Reports of the Commission on the Rules of Professional Conduct and the Ad Hoc Committee on Bar Admissions
For Release December 11, 2002
For further information contact:
Keith Endo (Commission on the Rules of Professional Conduct) (609) 984-5419
Eugene Troche (Ad Hoc Committee on Bar Admissions) (609) 341-3830
The New Jersey Supreme Court today released two separate reports: The Report of the Commission on the Rules of Professional Conduct and the Report of the Ad Hoc Committee on Bar Admissions.
The Commission, chaired by retired Justice Stewart Pollock, was appointed by the Supreme Court in January 2001 to review the Rules of Professional Conduct in light of the report of the American Bar Associations Ethics 2000 Commission on the Model Rules of Professional Conduct. The Commission also reviewed ethical issues concerning multijurisdictional practice, multidisciplinary practice, the appearance of impropriety rule, the extension of the disqualification of a municipal prosecutor from criminal defense work to members and associates in the prosecutors law firm, and the rule requiring attorneys to maintain a bona fide office in New Jersey.
The Ad Hoc Committee, chaired by Appellate Division Judge John E. Wallace, was created by the Supreme Court in February 2001 to make recommendations regarding a number of multijurisdictional practice and bar admissions issues. These issues included admission by motion, admission to the bar examination of foreign-educated attorneys and non-American Bar Association approved law school graduates, regulation of in-house counsel and transactional attorneys, and multijurisdictional practice by attorneys. Further, the court asked the Committee to review and report on the continued use of the bona fide office rule. [R. 1:21-1(a)].
The Supreme Court has authorized the publication of both reports for written comment. Comments must be submitted to the Clerk of the Supreme Court by April 15, 2003. A public hearing on both reports will be held on Wednesday, April 23, 2003, at 10:00 a.m. in the Supreme Court courtroom, Hughes Justice Complex, Trenton.
Highlights of both reports and rosters for each committee are below:
Report of the Commission on the Rules of Professional Conduct
1) RPC 1.6 - Confidentiality of Information. The Commission recommends expanding the disclosure requirement of RPC 1.6(b) to require a lawyer to reveal information to the authorities not only to prevent the client from committing a criminal, illegal, or fraudulent act likely to result in death or substantial bodily or financial injury to another, but also to prevent any other person from committing such an act. Also, the Commission ecommends adding a provision to permit the lawyer to reveal the information to the person threatened if the lawyer believes that such disclosure is necessary to prevent the harms set forth in RPC 1.6(b).
2) The Appearance of Impropriety as an Ethics Violation. The Commission recommends elimination of the appearance-of-impropriety rule in RPC 1.7 (c) (2) and RPC 1.9.
3) The Effect of a Municipal Prosecutors Disqualification. The Commission recommends that the disqualification of a municipal prosecutor from criminal defense work within the same county not extend to members or associates of the municipal prosecutors law firm except for criminal defense work that involves criminal matters that have occurred in the municipality of the prosecutor or which involve law enforcement personnel and other material witnesses from that municipality.
4) RPC 1.8 - Conflict of Interest: Current Clients. The Commission supports the Ethics 2000 Commissions proposal to prohibit a lawyer from having sexual relations with a client unless they had a sexual relationship when the client-lawyer relationship commenced. The Commission also recommends adoption of a new provision, RPC 1.8(l), which obligates a lawyer employed by a public entity, whether as a lawyer or in some other role, to assess whether representation of another client (1) presents a substantial risk that the lawyers responsibilities to the public entity would limit the lawyers ability to provide independent advice or diligent and competent representation or (2) would enable the lawyer improperly to influence the decision of the public entity.
5) RPC 1.10 - Imputation of Conflicts of Interest; RPC 1.11 - Successive Representation of Government and Private Parties. The ABA Ethics 2000 Commission proposed the use of screening to prevent the attribution of personal conflicts to other lawyers in a conflicted lawyers firm. The ABA House of Delegates rejected that proposal. The New Jersey Commission supports the Ethics 2000 Commissions proposal, but with additional limitations on the use of screening.
6) RPC 3.8 - Special Responsibilities of a Prosecutor. The present version of MRPC 3.8 prohibits a prosecutor from: 1) issuing a subpoena to an attorney to present evidence about a past or present client except under limited circumstances and 2) making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused unless the statements are necessary to inform the public of the prosecutors action and serve a legitimate law enforcement purpose. When the Supreme Court adopted our current RPCs in 1984, these provisions did not exist in the version of the MRPCs reviewed by the New Jersey Supreme Court Committee appointed to review the MRPCs. The New Jersey Commission has reviewed the present version of MRPC 3.8 and recommends adding these provisions to RPC 3.8.
7) RPC 4.4 - Respect for Rights of Third Persons. RPC 4.4 addresses respect for the rights of third persons. The ABA Ethics 2000 Commission proposes a new subparagraph (b) that obligates a lawyer who receives a document that was sent inadvertently to promptly notify the sender. The New Jersey Commission supports the proposal and also recommends extending the rule to obligate the recipient to stop reading the document on ascertaining that the document was inadvertently sent and return the document to the sender.
8) RPC 5.4 - Professional Independence of Lawyers. RPC 5.4 prohibits fee-sharing with a nonlawyer except as otherwise provided in the RPC. The proposed MRPC would permit a lawyer to share court-awarded legal fees with a nonprofit organization that employed the lawyer. A closely-divided Commission supports the proposal to permit a lawyer to share court-awarded fees with a nonprofit organization. The Commission recommends no other changes to the RPCs in regard to multidisciplinary practice.
9) RPC 5.5 - Unauthorized Practice of Law, Multijurisdictional Practice. Over the course of the Commissions discussion on multijurisdictional practice, the Commission concluded that the national trend is towards multijurisdictional practice and it is difficult, if not impossible, to defend standards that serve as barriers to practice by out-of-State attorneys. At the same time, the Commission believed that New Jersey has a tradition of high legal ethical standards that it should not sacrifice to this trend. The Commissions recommendations in respect of RPC 5.5 and RPC 8.5 are based on the Commissions general intention to allow out-of-State attorneys to practice here temporarily so long as they comport themselves under New Jerseys ethical standards.
Proposed paragraph (c) of RPC 5.5 broadly accommodates four sets of circumstances under which a lawyer who is not admitted here but is admitted and is in good standing in another state jurisdiction may provide legal services in New Jersey on a temporary basis or, in the case of subparagraph (c) (4), on an occasional basis. Proposed RPC 5.5 (c) (4) permits an out-of-state lawyer to provide legal services if the services arise out or are reasonably related to the lawyers practice in a jurisdiction in which the lawyer is admitted to practice and the practice here is no more than occasional. The Commission believes that the level of service permissible under this provision should be significantly lower than the temporary practice contemplated under the three other provisions of paragraph (c).
10) The BonaFide Office Rule. The Commission concluded that the time has come to eliminate an in-state bona fide office requirement. Still, a lawyer who holds a plenary license to practice in this state and is otherwise qualified to practice in New Jersey should be required to have a bona fide office somewhere. The lawyer should be required to fully inform prospective clients of: 1) how, when, and where the lawyer is accessible to the client, and 2) where files are kept.
11) MRPC 7.2 - Advertising. The Commission recommends dropping MRPC 7.2(a)s prohibition against drawings, animation, dramatization, music, or lyrics and, instead, requiring that such advertising techniques conform to the requirements of RPC 7.1 concerning false or misleading communications.
The members of the Commission on the Rules of Professional Conduct are:
- Hon. Stewart G. Pollock, Associate Justice (ret.), Chair
- Thomas F. Campion, Jr., Esq., Vice Chair
- Hon. Carmen H. Alvarez, J.S.C.
- Professor Michael P. Ambrosio
- Frederic K. Becker, Esq.
- Richard L. Bland, Jr., Esq.
- Martha Chang
- Hon. Rudy B. Coleman, J.S.C.
- Clement J. Farley, Esq.
- Rev. David I. Fulton
- Mary Jean Gallagher, Esq.
- Hon. Alan B. Handler, Associate Justice (ret.)
- Hon. Katharine S. Hayden, U.S.D.C.
- Cynthia M. Jacob, Esq.
- Peggy Sheahan Knee, Esq.
- Professor John D. Leubsdorf
- Joel A. Leyner, Esq.
- Kevin H. Michels, Esq.
- Melville D. Miller, Jr., Esq.
- Hon. Sylvia B. Pressler, J.A.D.
- Raquel Romero, Esq.
- Hon. Jack M. Sabatino, J.S.C.
- Justin P. Walder, Esq.
- Hon. Dorothea OC. Wefing, J.A.D.
- E. Ronald Wright, Esq.
- Keith M. Endo, Esq., Counsel to the Commission
Report of the Ad Hoc Committee on Bar Admissions
In summary, the Committee recommends the following:
1) Admission on Motion. An attorney who has been admitted to practice in a reciprocal state, territory of the United States, Puerto Rico, or the District of Columbia may be admitted to the bar of this State if the attorney has been previously engaged in the practice of law in any jurisdiction for five of the seven years preceding the date of the application. The applicant must also satisfy other requirements to be eligible for admission on motion, including the maintenance of a bona fide office and demonstration of intent to practice in this state.
2) Foreign-educated Attorneys. A foreign-educated attorney who has been admitted to practice law in another jurisdiction of the United States by examination is eligible to take the New Jersey Bar Examination if the attorney has practiced law for five of the last seven years in that jurisdiction.
3) Graduates of Non-ABA Approved Law Schools. A U.S. educated attorney who graduated from a non-ABA accredited law school is eligible to take the New Jersey Bar Examination if the attorney has been admitted to the practice of law by examination in another jurisdiction of the United States and has practiced law for five of the last seven years in a United States jurisdiction.
4) In-house Counsel. In-house counsel admitted to practice law in a state, territory of the United States, Puerto Rico, or the District of Columbia may receive a limited license to practice law in this State solely for the identified employer. The attorney must also satisfy other requirements including a certification that he/she performs legal services in this State solely for the identified employer, and shall not appear as the attorney of record for his employer in any case or matter pending before the courts of this State except pursuant to R. 2:21-1 (c) and R. 1:21-2.
5) Multijurisdictional Practice. With regard to multijurisdictional practice issues, the Committee recommends that Rule of Professional Conduct (RPC) 5.5, Unauthorized Practice of Law, be amended to read as follows:
Lawyers not admitted to the Bar of this state may engage in the lawful practice of law in New Jersey as follows:
A. The lawyer is admitted to practice pro hac vice or is preparing for a proceeding in which the lawyer reasonably expects to be so admitted and is associated with lawyer in this state; or
B. The lawyer practices as an in-house counsel and obtains a limited license for lawyers employed by a corporation, partnership, etc., in this state. With the limited license, and after satisfying other requirements, the lawyer is authorized to practice law for the
designated employer; or
C. The lawyer engages in the negotiation of the terms of a transaction on behalf of an existing client in a jurisdiction in which the lawyer is admitted to practice and the transaction relates to that jurisdiction; or
D. The lawyer participates in arbitration, mediation or other dispute resolution program on behalf of an existing client and the dispute relates to a jurisdiction in which the lawyer is admitted to practice; or
E. The lawyer investigates, engages in discovery, interviews witnesses, or deposes a witness in this jurisdiction in preparation for a proceeding pending or anticipated to be instituted in a jurisdiction in which the lawyer is admitted to practice; or
F. The lawyer practices under any other circumstance where the matter arises directly out of the lawyers representation on behalf of an existing client in a jurisdiction where the lawyer is admitted to practice, but the representation must be occasional and undertaken where the lawyers disengagement would result in substantial inefficiency.
6) Bona Fide Office. The bona fide office requirement should be maintained but amended to eliminate the requirement that the bona fide office must be located in this state.
The members of the Ad Hoc Committee on Bar Admissions are:
- Hon. John E. Wallace, Jr., J.A.D., Chair
- John J. Francis, Jr., Esq., Co-Chair
- Hon. Victor Ashrafi, J.S.C.
- Shacara N. Boon, Esq.
- Association Dean Ronald K. Chen, Rutgers Law SchoolNewark
- Hon Patricia K. Costello, J.S.C.
- Hon. Mary Catherine Cuff, J.A.D.
- Allen A. Etish, Esq.
- Professor Paula A. Franzese, Seton Hall Law School
- Ross Lewin, Esq.
- Hon. Edith K. Payne, J.A.D.
- Darryl W. Simpkins, Esq.
- Dean Rayman L. Solomon, Rutgers Law SchoolCamden
- Hon Donald H. Steckroth, United States District Court
- Peter Tu, Esq.
- Beverly A. Williams, Esq.
- Hon. Joseph L. Yanotti, J.S.C.
- E. Neal Zimmermann, Esq.
- Eugene Troche, Esq., Staff to the Committee
- Martha Treese, Esq., Staff to the Committee
- Samuel Uberman, Esq., Staff to the Committee