RULES OF PROFESSIONAL CONDUCT
Adopted Effective September 10, 1984
- RPC 1.1 COMPETENCE
- Comment to RPC 1.1
- RPC 1.2 SCOPE OF REPRESENTATION
- Comment to RPC 1.2
- RPC 1.3 DILIGENCE
- Comment to RPC 1.3
- RPC 1.4 COMMUNICATION
- Comment to RPC 1.4
- RPC 1.5 FEES
- Comment to RPC 1.5
- RPC 1.6 CONFIDENTIALITY OF INFORMATION
- Comment to RPC 1.6
- RPC 1.7 CONFLICT OF INTEREST: GENERAL RULE
- Comment to RPC 1.7
- RPC 1.8 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS
- Comment to RPC 1.8
- RPC 1.9 CONFLICT OF INTEREST: FORMER CLIENT
- Comment to RPC 1.9
- RPC 1.10 IMPUTED DISQUALIFICATION: GENERAL RULE
- Comment to RPC 1.10
- RPC 1.11 SUCCESSIVE GOVERNMENT AND PRIVATE EMPLOYMENT
- Comment to RPC 1.11
- RPC 1.12 FORMER JUDGE OR ARBITRATOR OR LAW CLERK
- Comment to RPC 1.12
- RPC 1.13 ORGANIZATION AS THE CLIENT
- Comment to RPC 1.13
- RPC 1.14 CLIENT UNDER A DISABILITY
- Comment to RPC 1.14
- RPC 1.15 SAFEKEEPING PROPERTY
- Comment to RPC 1.15
- RPC 1.16 DECLINING OR TERMINATING REPRESENTATION
- Comment to RPC 1.16
- RPC 1.17 SALE OF LAW PRACTICE
- RPC 2.1 ADVISOR
- Comment to RPC 2.1
- RPC 2.2 INTERMEDIARY
- Comment to RPC 2.2
- RPC 2.3 EVALUATION FOR USE BY THIRD PERSONS
- Comment to RPC 2.3
- RPC 3.1 MERITORIOUS CLAIMS AND CONTENTIONS
- Comment to RPC 3.1
- RPC 3.2 EXPEDITING LITIGATION
- Comment to RPC 3.2
- RPC 3.3 CANDOR TOWARD THE TRIBUNAL
- Comment to RPC 3.3
- RPC 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
- Comment to RPC 3.4
- RPC 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
- Comment to RPC 3.5
- RPC 3.6 TRIAL PUBLICITY
- Comment to RPC 3.6
- RPC 3.7 LAWYER AS WITNESS
- Comment to RPC 3.7
- RPC 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
- Comment to RPC 3.8
- RPC 3.9 ADVOCATE IN NONADJUDICATIVE PROCEEDINGS
- Comment to RPC 3.9
- RPC 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS
- Comment to RPC 4.1
- RPC 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
- Comment to RPC 4.2
- RPC 4.3 DEALING WITH UNREPRESENTED PERSON; EMPLOYEE OF ORGANIZATION
- Comment to RPC 4.3
- RPC 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS
- Comment to RPC 4.4
- RPC 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
- Comment to RPC 5.1
- RPC 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
- Comment to RPC 5.2
- RPC 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS
- Comment to RPC 5.3
- RPC 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
- Comment to RPC 5.4
- RPC 5.5 UNAUTHORIZED PRACTICE OF LAW
- Comment to RPC 5.5
- RPC 5.6 RESTRICTIONS ON RIGHT TO PRACTICE
- Comment to RPC 5.6
- RPC 6.1 PUBLIC INTEREST LEGAL SERVICE
- Comment to RPC 6.1
- RPC 6.2 ACCEPTING APPOINTMENTS
- Comment to RPC 6.2
- RPC 6.3 MEMBERSHIP IN LEGAL SERVICES ORGANIZATION
- Comment to RPC 6.3
- RPC 6.4 LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS
- Comment to RPC 6.4
- RPC 7.1 COMMUNICATIONS CONCERNING A LAWYER'S SERVICE
- Comment to RPC 7.1
- RPC 7.2 ADVERTISING
- Comment to RPC 7.2
- RPC 7.3 PERSONAL CONTACT WITH PROSPECTIVE CLIENTS
- Comment to RPC 7.3
- RPC 7.4 COMMUNICATION OF FIELDS OF PRACTICE AND CERTIFICATION
- Comment to RPC 7.4
- RPC 7.5 FIRM NAMES AND LETTERHEADS
- Comment to RPC 7.5
- RPC 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS
- Comment to RPC 8.1
- RPC 8.2 JUDICIAL AND LEGAL OFFICIALS
- Comment to RPC 8.2
- RPC 8.3 REPORTING PROFESSIONAL MISCONDUCT
- Comment to RPC 8.3
- RPC 8.4 MISCONDUCT
- Comment by Supreme Court
- Comment to RPC 8.4
- RPC 8.5 JURISDICTION
- Comment to RPC 8.5
- ATTORNEY ADVERTISING GUIDELINES AS APPROVED BY THE SUPREME COURT OF NEW JERSEY
- CONVERSION TABLE NO. 1
- (CODE OF PROFESSIONAL RESPONSIBILITY TO RULES OF PROFESSIONAL CONDUCT)
- Prepared by the Office of Attorney Ethics
The Supreme Court has adopted the ABA Model Rules of Professional Conduct, as recommended by the Supreme Court Committee on the Model Rules of Professional Conduct (the "Debevoise Committee") and as revised by the Court. Among the several other recommendations taken into account by the Court in adopting these rules were those by the New Jersey State Bar Association (NJSBA), the New Jersey Prosecutors Association, the United States Securities and Exchange Commission, the United States Department of Justice, and private practitioners.
The explanatory comments that follow each rule have not been adopted by the 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 in its June 24, 1983 report, which appeared as a supplement to the July 28, 1983 issue of the New Jersey Law Journal.
SPECIAL NOTE: RPC 7.1 through RPC 7.5 are DR 2-101 through DR 2-105 as amended January 16, 1984, with minor editorial changes. They have been renumbered consistent with the ABA Model Rule numbering scheme. The explanatory comments that accompanied the adoption of these amended rules (as published in the January 26, 1984 issue of the New Jersey Law Journal, 113 N.J.L.J. 91-93) are again included here for ease of reference (also with minor editorial changes). It should be further noted that the Court is in the process of preparing an additional revision to RPC 7.3 as it relates to prepaid legal services plans, to be soon published for comments in the New Jersey Law Journal.
These rules shall be referred to as the Rules of Professional Conduct and shall be abbreviated as "RPC".
A lawyer shall not:
(a) Handle or neglect a matter entrusted to the lawyer in such manner that the lawyer's conduct constitutes gross negligence.
(b) Exhibit a pattern of negligence or neglect in the lawyer's handling of legal matters generally.
The Court, following the recommendation of the Debevoise Committee, has retained DR 6-101 ("Failing to Act Competently"), renumbered as RPC 1.1 and entitled "Competence," rather than adopt the ABA's Rule 1.1. As recognized by that committee, ensuring and improving professional competence is one of the most important responsibilities of the legal profession. The use of the terms "gross negligence" and "pattern of negligence or neglect" provides sufficiently definite standards of prohibited conduct so as to avoid the difficulties that the more vague ABA version would create. These terms have been applied and interpreted by the Court many times. See, e.g., In re Barry, 90 N.J. 286 (1982); In re Goldstaub, 90 N.J. 1 (1982); In re Barrett, 88 N.J. 450 (1982); In re Getchius, 88 N.J. 269 (1982). By retaining the text of DR 6-101, the relevance of that case law will be preserved.
To achieve and maintain the necessary levels of competence envisioned by this rule, the lawyer should engage in continuing legal study and education.
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the objectives of the representation if the client consents after consultation.
(d) A lawyer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent, or in the preparation of a written instrument containing terms the lawyer knows are expressly prohibited by law, but a lawyer may counsel or assist a client in a good faith effort to determine the validity, scope, meaning or application of the law.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall advise the client of the relevant limitations on the lawyer's conduct.
The Court has adopted the recommendation of the Debevoise Committee, except to add to paragraph (d) the proscription against an attorney counseling or assisting a client in conduct that the attorney knows is illegal (rather than just either "criminal or fraudulent"). This rule thus emphasizes that no attorney-client privilege or confidential relationship permits an attorney to participate in a corrupt or fraudulent scheme of a client. See RPC 1.6.
A lawyer shall act with reasonable diligence and promptness in representing a client.
As recommended by the Debevoise Committee, the Court adopts ABA Model Rule 1.3, requiring an attorney to act with promptness and diligence in representing a client. Within the limits of professional discretion, the lawyer "should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf" (ABA Comment).
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 1.4, requiring that an attorney keep clients reasonably informed as to the status of their matters and requiring the attorney to comply promptly with requests for information. The rationale for this requirement is obvious: clients must be sufficiently informed to be able to participate actively in the decisions that are made during the course of the representation (including such dispositional decisions as offers of settlement in civil litigation or plea bargains in criminal prosecutions). See RPC 1.13, RPC 1.14.
(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;
(8) whether the fee is fixed or contingent.
(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated in writing to the client before or within a reasonable time after commencing the representation.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by law or by these rules. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) Except as otherwise provided by the Court Rules, a division of fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer, or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; and
(2) the client consents to the participation of all the lawyers involved; and
(3) the total fee is reasonable.
The Court adopts ABA Model Rule 1.5 with certain revisions, most of which were recommendations of the Debevoise Committee. The communication to the client regarding the basis or rate of fee as required in paragraph (b) must be in writing (rather than "preferably in writing"). See R. 1:21-7A. The limitation on the permissibility of contingent fee arrangements contained in paragraph (c) is broadened to provide for prohibitions "by law or by these rules." As to guidelines for contingent fees, see R. 1:21-7, as amended January 16, 1984. The limitation on division of fees as set forth in paragraph (e) is qualified by "except as otherwise provided by the Court Rules." See R. 1:39.
The eight enumerated factors in paragraph (a) to be considered in determining the reasonableness of a fee correspond nearly verbatim to those previously contained in DR 2-106. As to contingent fees, the proscription continues against their use in criminal or domestic relations matters. For the fee dispute resolution structure, see R. 1:20A. See also RPC 5.4.
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
(b) A lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client:
(1) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another;
(2) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal.
(c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to rectify the consequences of a client's criminal, illegal or fraudulent act in the furtherance of which the lawyer's services had been used;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer based upon the conduct in which the client was involved; or
(3) to comply with other law.
(d) Reasonable belief for purposes of RPC 1.6 is the belief or conclusion of a reasonable lawyer that is based upon information that has some foundation in fact and constitutes prima facie evidence of the matters referred to in subsections (b) or (c).
The rule adopted here differs significantly from both the ABA Model Rule 1.6 and the Debevoise Committee recommendation.
(1) Affirmative Duty. The Debevoise Committee intended this rule to impose an affirmative duty on the lawyer to speak out in regard to the enumerated contemplated acts of the client as opposed to the abrogation of the attorney-client privilege during an actual judicial proceeding where the lawyer is testifying. This conclusion is borne out by the comment of the ABA Commission on Evaluation of Professional Standards ("the Kutak Commission") (as adopted by the ABA), which explicitly distinguishes the limited historical context of the attorney-client privilege from the expanded context of the proposed rule:
The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.
[ABA Comment to Model Rule 1.6.]
(2) Standard Governing Duty of Disclosure. The Court in In re Selser, 15 N.J. 393, 406 (1954), held an attorney, who was a defendant in a criminal contempt proceeding, obligated to answer questions before a grand jury seeking to elicit information communicated to him by his client, since deceased, in furtherance of the client's purpose of obtaining advice as to the commission of continuing or prospective crime. The loss of the attorney-client privilege was predicated on the following standard articulated by Justice Cardozo in Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L.Ed. 993, 1000 (1933):
"It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud." To drive the privilege away, there must be "something to give colour to the charge"; there must be "prima facie evidence that it has some foundation in fact." When that evidence is supplied, the seal of secrecy is broken.
[(Citations omitted.) Quoted in In re Selser, supra, 15 N.J. at 402.]
The perception of this standard is keyed to the "reasonable lawyer" rather than the "reasonable person." See also RPC 4.1.
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client unless:
(1) the lawyer reasonably believes that representation will not adversely affect the relationship with the other client; and
(2) each client consents after a full disclosure of the circumstances and consultation with the client, except that a public entity cannot consent to any such representation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after a full disclosure of the circumstances and consultation with the client, except that a public entity cannot consent to any such representation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
(c) This rule shall not alter the effect of case law or ethics opinions to the effect that:
(1) in certain cases or categories of cases involving conflicts or apparent conflicts, consent to continued representation is immaterial, and
(2) in certain cases or situations creating an appearance of impropriety rather than an actual conflict, multiple representation is not permissible, that is, in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.
The Court has revised subparagraphs (a)(2) and (b)(2) of the recommendation of the Debevoise Committee so as to preserve New Jersey's rule that a government agency cannot consent to representation if a conflict of interest exists or if the appearance of such a conflict exists. Thus, if there is a conflict that can only be cured by consent and if a governmental entity is one of the parties that must consent, that conflict cannot be avoided and representation of one or more of the clients must be terminated.
The Court has added a paragraph (c) that preserves the effect of New Jersey case law and ethics opinions to the effect that consent to representation or continued representation is immaterial in certain cases or categories of cases when faced with conflicts or apparent conflicts. See, e.g., State v. Bellucci, 81 N.J. 531 (1980) (criminal codefendants; potential for conflict of interest required reversal of convictions and retrial); State v. Land, 73 N.J. 24 (1977) (same); In re Cohn, 46 N.J. 202, 211-13 (1966) (improper here for attorney to accept retainer from client who was to be main witness in pending matter against another of his clients). In these cases in which consent will permit continued representation despite a conflict of interest, it must be an informed consent based on a "full and timely" disclosure of the conflict. In re Dolan, 76 N.J. 1, 8-13 (1978); In re Kamp, 40 N.J. 588, 595-96 (1963); see also In re Nichols, 95 N.J. 126, 131 (1984) (transactions between attorney and client); In re Gavel, 22 N.J. 248, 262 (1956) (same).
The Court has also included language in new paragraph (c) so as expressly to preserve in New Jersey the "appearance of impropriety" rule. See, e.g., In re Garber, 95 N.J. 597, 609-10 (1984); Reardon v. Marlayne, Inc., 83 N.J. 460, 470 (1980); Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366, 373 (1980); Higgins v. Advisory Committee on Professional Ethics, 73 N.J. 123, 128-29 (1977). That "appearance" rule "is intended to instill public confidence in the integrity of the legal profession." In re Opinion No. 415, 81 N.J. 318, 323 (1979); see id. at 323-24.
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless (1) the transaction and terms in which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in manner and terms that should have reasonably been understood by the client, (2) the client is advised of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent counsel of the client's choice on the transaction, and (3) the client consents in writing thereto.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation.
(c) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client consents after consultation;
(2) there is no interference with the lawyer's independence of professional judgment or with the lawyer-client relationship; and
(3) information relating to representation of a client is protected as required by RPC 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or no contest pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless (1) the client fails to act in accordance with the lawyer's advice or refuses to permit the lawyer to act in accordance with the lawyer's advice and (2) the lawyer nevertheless continues to represent the client at the client's request. Notwithstanding the existence of those two conditions the lawyer shall not make such an agreement unless permitted by law and the client is independently represented in making the agreement. A lawyer shall not settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.
(i) A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.
(j) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer's fee or expenses, (2) contract with a client for a reasonable contingent fee in a civil case.
(k) The provisions of RPC 1.7(c) are applicable as well to situations covered by this rule.
This rule lists in detail several transactions in which an attorney may not participate since they would constitute conflicts of interests. With certain revisions the Court has adopted the recommendation of the Debevoise Committee. Subparagraph (a)(2) is revised so that in such situations an additional precondition to the transaction would be informing the client as to the desirability of seeking the advice of independent counsel. Paragraph (h) is revised, in accordance with NJSBA recommendations, so as to reflect language changes made by the ABA to the Kutak Commission version. And a new paragraph (k) is added affirmatively stating that the provisions of RPC 1.7(c), added by the Court, are applicable as well to cases covered by RPC 1.8.
(a) A lawyer who has represented a client in a matter shall not thereafter:
(1) represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation with the former client; or
(2) use information relating to the representation to the disadvantage of the former client except as RPC 1.6 would permit with respect to a client or when the information has become generally known.
(b) The provisions of RPC 1.7(c) are applicable as well to situations covered by this rule.
This rule has no DR counterpart; the situations covered by it have instead usually been dealt with through an interpretation of Canon 9 of the Code of Professional Responsibility. The Court adopts the recommendation of the Debevoise Committee but adds a new paragraph (b) stating that the provisions of RPC 1.7(c), added by the Court, are applicable as well to cases covered by RPC 1.9. Paragraph (a) differs from the ABA version in that the client's consent must be "after a full disclosure of the circumstances and consultation with the former client."
(a) When lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by RPC 1.7, RPC 1.8, RPC 1.9 or RPC 2.2.
(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by RPC 1.6 and RPC 1.9(a)(2)* that is material to the matter.
(c) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by RPC 1.6 and RPC 1.9(b)* that is material to the matter.
(d) When lawyers terminate an association in a firm, none of them, nor any other lawyer with whom any of them subsequently becomes associated, shall knowingly represent a client when doing so involves a material risk of violating RPC 1.6 or RPC 1.9.
(e) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in RPC 1.7 except where prohibited by law or regulation, such as the prohibition against a public entity waiving an attorney conflict of interest.
*<ER>Pub. Note: The reference in RPC 1.10(b) to "RPC 1.9(b)" was corrected in Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 536 A.2d 243 (1988) to read "RPC 1.9(a)(2)". A similar reference in RPC 1.10(c)(2) was not addressed in the opinion.
The Court has adopted ABA Model Rule 1.10 with two revisions. One, it adopts also paragraph (b) of the Debevoise Committee's recommendation, that paragraph here becoming paragraph (d). Two, the Court adopts the Debevoise Committee's paragraph (c) (rather than the ABA's paragraph (d)), numbering that paragraph here as paragraph (e). Paragraph (e) permits an affected client to waive an imputed disqualification under the conditions stated in RPC 1.7 unless prohibited by law or, as added by the Court, by regulation. The Court in this paragraph has stressed that a public entity is prohibited from waiving an attorney conflict of interest.
(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter (1) in which the lawyer participated personally and substantially as a public officer or employee, (2) about which the lawyer acquired knowledge of confidential information as a public officer or employee, or (3) for which the lawyer had substantial responsibility as a public officer or employee.
(b) An appearance of impropriety may arise from a lawyer representing a private client in connection with a matter that relates to the lawyer's former employment as a public officer or employee even if the lawyer did not personally and substantially participate in it, have actual knowledge of it, or substantial responsibility for it. In such an event, the lawyer may not represent a private client, but a firm with which that lawyer is associated may undertake or continue representation if: (1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom, and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not: (1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or (2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially.
(d) As used in this Rule, the term "matter" includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency.
(e) As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and that, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public.
The Court adopts paragraphs (c), (d) and (e) of ABA Model Rule 1.11, but adopts revised versions of paragraphs (a) and (b).
The Kutak Commission would bar a lawyer from representing "a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation." The Kutak Commission report further provides "[e]xcept as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person." In both situations, however, the Kutak Commission would have permitted the lawyer's firm to "undertake or continue representation" in such matter by screening the disqualified lawyer.
By contrast, the Debevoise Committee would not only bar the lawyer from representing "a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee," but also would disqualify the lawyer's firm. Similarly, the Debevoise Committee would bar both the lawyer and the lawyer's firm from representing a private client about whom the lawyer had acquired knowledge of confidential government information while a public officer or employee.
The United States Department of Justice filed written comments to the Debevoise Committee report "object[ing] most strenuously to the adoption of an absolute imputed disqualification rule for law firms hiring former government lawyers, unless the rule includes a screening or waiver mechanism to mitigate its unjustifiably harsh and selective impact on government lawyers." The Department of Justice pointed out that the rule proposed by the Debevoise Committee would impair the recruitment and retention of federal lawyers, further contending that the rule proposed would "impose[ ] a significantly greater burden on Federal employees than those set forth in the Federal post-employment statutes and regulations," and would violate the Supremacy Clause of the United States Constitution. The Department concluded that it "has long been of the view that screening measures are ordinarily sufficient to dispel any appearance of impropriety in a law firm's representation in a matter for which one of its members is disqualified."
The Securities and Exchange Commission, in its written comments, challenged the conclusion of the Debevoise Committee "that screening 'would constitute a clear conflict of interest and the dangers for abuse are too great.' "
Under existing New Jersey law, a former government employee is barred from representing a private client in connection with a matter if (1) the lawyer substantially or personally participated in the matter while in government employment, (2) acquired actual knowledge of the matter, or (3) had substantial authority for it as a public officer or employee. Ross v. Canino, 93 N.J. 402 (1983); In re Advisory Opinion No. 361, 77 N.J. 199 (1978). In those situations, the disqualification would extend to the firm with which the lawyer was associated. In other situations, where no actual conflict existed, disqualification of a former government employee does not extend to the firm with which the lawyer is associated. Furthermore, ultimate responsibility of a public officer or employee is not necessarily tantamount to substantial responsibility.
The Court has adopted a paragraph (a) that would bar the representation where the attorney either had acquired confidential information or had had substantial responsibility. Whether ultimate responsibility for a matter equates with substantial responsibility will depend on the circumstances of each case. See, e.g., Ross v. Canino, supra, 93 N.J. at 409 (under circumstances of case, ultimate responsibility of Attorney General for Department of Law and Public Safety did not equate with substantial responsibility for particular investigation by Division of Criminal Justice). RPC 1.11 as adopted is consistent with prior law and is intended to strike an appropriate balance of the competing interests.
(a) Except as stated in paragraph (c), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after disclosure.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or arbitrator. A lawyer serving as law clerk to a judge or arbitrator may negotiate for employment with a party or attorney involved in a matter in which the law clerk is participating personally and substantially, but only after the lawyer has notified the judge or arbitrator.
(c) An arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party.
The Court has adopted the recommendation of the Debevoise Committee. That Committee had recommended deleting the paragraph in the Kutak Commission version that would permit use of a screening procedure for a lawyer disqualified under this rule. As to ethical constraints on the judiciary, see, e.g., Knight v. Margate, 86 N.J. 374, 386 et seq. (1981). As to the practice of law by retired judges, see N.J.S.A. 43:6A-13.
(a) A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders or other constituents. For the purposes of RPC 4.2 and 4.3, however, the organization's lawyer shall be deemed to represent not only the organizational entity but also the members of its litigation control group. Members of the litigation control group shall be deemed to include current agents and employees responsible for, or significantly involved in, the determination of the organization's legal position in the matter whether or not in litigation, provided, however, that "significant involvement" requires involvement greater, and other than, the supplying of factual information or data respecting the matter. Former agents and employees who were members of the litigation control group shall presumptively be deemed to be represented in the matter by the organization's lawyer but may at any time disavow said representation.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:
(1) asking reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and
(3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.
(c) When the organization's highest authority insists upon action, or refuses to take action, that is clearly a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer may take further remedial action that the lawyer reasonably believes to be in the best interest of the organization. Such action may include revealing information otherwise protected by RPC 1.6 only if the lawyer reasonably believes that:
(1) the highest authority in the organization has acted to further the personal or financial interests of members of that authority which are in conflict with the interests of the organization; and
(2) revealing the information is necessary in the best interest of the organization.
(d) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer believes that such explanation is necessary to avoid misunderstanding on their part.
(e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of RPC 1.7. If the organization's consent to the dual representation is required by RPC 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented or by the shareholders.
(f) For purposes of this rule "organization" includes any corporation, partnership, association, joint stock company, union, trust, pension fund, unincorporated association, proprietorship or other business entity, state or local government or political subdivision thereof, or non-profit organization.
Note: Adopted September 10, 1984, to be effective immediately; amended June 28, 1996, to be effective September 1, 1996.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 1.13. This rule, which has no DR counterpart, sets forth guidelines for the corporate or other organizational attorney.
(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) A lawyer may seek the appointment of a guardian, or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 1.14. This rule has no counterpart in the former Disciplinary Rules.
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in a financial institution in New Jersey. Funds of the lawyer that are reasonably sufficient to pay bank charges may, however, be deposited therein. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of seven years after the event that they record.
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive.
(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.
(d) A lawyer shall comply with the provisions of R. 1:21-6 ("Recordkeeping") of the Court Rules.
The Court, with two revisions, has adopted the recommendation of the Debevoise Committee, which in turn differs somewhat from the ABA-approved version of this rule. The Court deleted from the Debevoise Committee recommendation the provision that would have permitted clients' funds to be maintained in another state with the consent of the client, instead requiring the funds to be maintained in New Jersey accounts.
There is no doubt that a lawyer, as pointed out by the ABA and the Kutak Commission, should hold the property of others "with the care required of a professional fiduciary." This rule details that requirement by defining the obligations of the attorney as to the holding of property of clients or third persons. It requires, inter alia, that attorneys utilize trust accounts for the funds of clients, echoing the mandate of R. 1:21-6(a), as well as holding separate other client property. See In re Lehet, 95 N.J. 466, 468 (1984); In re Jacob, 95 N.J. 132 (1984). The Court has added paragraph (d), emphasizing compliance with the recordkeeping provisions of R. 1:21-6.
The rule also imposes a duty upon the attorney to notify the client upon receipt of funds or property in which the client has an interest and in most cases to deliver that property to the client promptly. It further contains provisions for handling disputed interests in property.
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
(c) When required to do so by rule or when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
The Court has adopted paragraphs (a), (b) and (d) of ABA Model Rule 1.16 (paragraph (a) and (d) of which were also recommended by the Debevoise Committee). Paragraph (c) has been revised so as to make clear that the lawyer is to continue representation in such cases when required by rule or ordered by a tribunal even though the requisite good cause for terminating be present. But see R. 1:11-2. As to substitutions of attorney because of the predecessor attorney's death, disbarment, suspension or resignation, see R. 1:11-1.
A lawyer or law firm may sell or purchase a law practice, including good will, if the following conditions are satisfied:
(a) The seller ceases to engage in the private practice of law in this jurisdiction.
(b) The practice is sold as an entirety, except in cases in which a conflict is present or may arise, to another lawyer or law firm.
(c) Written notice is given to each of the seller's clients stating that the interest in the law practice is being transferred to the purchaser; that the client has the right to retain other counsel; that the client may take possession of the client's file and property; and that if no response to the notice is received within sixty days of the sending of such notice, or in the event the client's rights would be prejudiced by a failure to act during that time, the purchaser may act on behalf of the client until otherwise notified by the client.
(1) If the seller is the estate of a deceased lawyer, the purchaser shall cause the notice to be given to the client and the purchaser shall obtain the written consent of the client provided that such consent shall be presumed if no response to the notice is received within sixty days of the date the notice was sent to the client's last known address as shown on the records of the seller, or the client's rights would be prejudiced by a failure to act during such sixty-day period.
(2) In all other circumstances, not less than sixty days prior to the transfer the seller shall cause the notice to be given to the client and the seller shall obtain the written consent of the client prior to the transfer, provided that such consent shall be presumed if no response to the notice is received within sixty days of the date of the sending of such notice to the client's last known address as shown on the records of the seller.
(3) The purchaser shall cause an announcement or notice of the purchase and transfer of the practice to be published in the New Jersey Law Journal and the New Jersey Lawyer at least thirty days in advance of the effective date of the transfer.
(d) The fees charged to clients shall not be increased by reason of the sale of the practice.
(e) If substitution in a pending matter is required by the tribunal or these Rules, the purchasing lawyer or law firm shall provide for same promptly.
(f) Admission to or withdrawal from a partnership, professional corporation, or limited liability entity, retirement plans and similar arrangements, or sale limited to the tangible assets of a law practice shall not be deemed a sale or purchase for purposes of this Rule.
Note: Adopted October 16, 1992, to be effective immediately; paragraph (f) amended July 10, 1998, to be effective September 1, 1998.
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations, such as moral, economic, social and political facts, that may be relevant to the client's situation.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 2.1.
Subject to the provisions of RPC 1.7:
(a) A lawyer may act as intermediary between clients if:
(1) the lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved, and the effect on the attorney-client privileges, and obtains each client's consent to the common representation;
(2) the lawyer reasonably believes that the matter can be resolved on terms compatible with the clients' best interests, that each client will be able to make adequately informed decisions in the matter and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and
(3) the lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.
(b) While acting as intermediary, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.
(c) A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in paragraph (a) is no longer satisfied. Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 2.2, except to add language to the effect that the provisions of RPC 1.7 apply here as well.
(a) A lawyer may undertake an evaluation of a matter affecting a client for the use of someone other than the client if:
(1) the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client;
(2) the conditions of the evaluation are described to the client in writing, including contemplated disclosure of information otherwise protected by RPC 1.6; and
(3) the client consents after consultation.
(b) In reporting an evaluation, the lawyer shall indicate any material limitations that were imposed on the scope of the inquiry or on the disclosure of information.
(c) Except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by RPC 1.6.
The Court has adopted the Debevoise Committee recommendation (which represents the earlier Kutak Commission language rather than the ABA-approved version).
A lawyer shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
The Court has adopted the Debevoise Committee recommendation, with clarifying language revisions as suggested by the NJSBA in its written comments submitted to the Court.
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client and shall treat with courtesy and consideration all persons involved in the legal process.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 3.2, which places with the attorney an affirmative obligation to make a reasonable effort to expedite the client's litigation. The Court has, however, added to the rule a portion of former DR 7-101(A)(1) requiring attorneys to exercise "courtesy and consideration" to everyone involved in the legal process.
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures; or
(5) fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by RPC 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse.
The Court has made two revisions to ABA Model Rule 3.3, which rule the Debevoise Committee recommended for adoption. One, the provisions of subparagraph (a)(2) are made applicable to "illegal" acts by clients, not just "criminal" and "fraudulent" acts. And, two, subparagraph (a)(5) has been added, which provides that attorneys shall not fail to disclose material facts that are likely to mislead the tribunal if counsel were to remain silent. This applies both to facts that are at issue in the case as well as facts relating to the management of the case. An attorney has an obligation to be candid and act with good faith toward the tribunal. See, e.g., In re Nigohosian, 88 N.J. 308 (1982); In re Herbstman, 84 N.J. 485 (1980); In re Turner, 83 N.J. 536 (1980).
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure make frivolous discovery requests or fail to make reasonably diligent efforts to comply with legally proper discovery requests by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
(g) present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.
Note: Adopted July 12, 1984, to be effective September 10, 1984; paragraph (g) adopted July 18, 1990, to be effective September 4, 1990.
The Court has adopted the recommendation of the Debevoise Committee. That committee had recommended adoption of ABA Model Rule 3.4, except for paragraph (d) thereof, which it revised so as to reflect a "pattern of behavior" proscription consistent with the provisions of RPC 1.1.
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person except as permitted by law; or
(c) engage in conduct intended to disrupt a tribunal.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 3.5, which prohibits an attorney from attempting improperly to influence a tribunal. As noted in both the ABA Comment and the Debevoise Committee report, "[r]efraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants." Even when faced by less than proper judicial conduct or conduct by other counsel or participants, the attorney must stand firm in adhering to the requirements of this rule.
(a) A lawyer shall not make an extrajudicial statement that a reasonable lawyer would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
(b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness other than the victim of a crime, or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;
(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial; or
(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
(c) Notwithstanding paragraphs (a) and (b)(1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration:
(1) the general nature of the claim or defense;
(2) the information contained in a public record;
(3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case;
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
Note: Adopted July 12, 1984, to be effective September 10, 1984; paragraph (b)(1) amended October 1, 1992, to be effective immediately.
The Court has adopted ABA Model Rule 3.6, which differs slightly from the Debevoise Committee recommendation (because of changes in the ABA-adopted version from the Kutak Commission version), except that the "reasonable person" standard set forth in paragraph (a) is replaced with a "reasonable lawyer" standard. The Debevoise Committee did present the competing issues of the right to a fair trial and the right of free expression and quoted the Kutak Commission's marshaling of the arguments of these competing fundamental concerns. See also In re Hinds, 90 N.J. 604 (1982); In re Rachmiel, 90 N.J. 646 (1982).
The Court amended RPC 3.6(b)(1) to clarify that the term "witness" as used in that section was not meant to include the identity of a victim of a crime.
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by RPC 1.7 or RPC 1.9.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 3.7, which deals with an attorney combining the roles of advocate and witness or potential witness. As noted by the Debevoise Committee, "[t]he goal of this Rule is to ensure that any such combination of roles by the attorney does not either prejudice the interest of the client or give rise to a conflict of interest between attorney and client."
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important post-indictment pretrial rights; and
(d) make timely disclosure to the defense of all evidence known to the prosecutor that supports innocence or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
The Court has varied paragraph (c) of the recommendation of the Debevoise Committee to conform more closely to decisional law. The Committee's report recommended without comment the adoption of Model Rule 3.8 as proposed by the ABA. The Kutak Commission emphasized in its recommendation the ABA Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, "The Prosecution Function," § 3-3.2 (2d Tent. Draft 1979), citing generally United States v. Callabrass, 458 F.Supp. 964 (S.D.N.Y.1978). That case dealt with an agent's interrogation of a defendant after arrest on an indictment. The court found the claimed waiver of counsel ineffective and emphasized that more than a Miranda warning regarding waiver is required since Sixth Amendment rights are involved, not just Fifth Amendment rights. In addition, it appeared that the defendant was represented by counsel, although this was unknown to the agent. The court questioned whether it is ever proper for a government lawyer to initiate questioning of an indicted defendant who is known to be represented, citing Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246 (1964). See also State v. McCloskey, 90 N.J. 18 (1982) (once a defendant has invoked the right to counsel, law enforcement officers may not initiate attempts to obtain waiver of the claim of counsel).
Taken in light of these references, the Court views the Kutak Commission as properly focusing on those circumstances in which the right to counsel attaches as a matter of law or request. Preindictment consent to search or interrogation does not invoke the same Sixth Amendment concerns. Limiting ethical proscription to the waiver of post-indictment pretrial rights such as Wade hearings or discovery will accord with a lawyer's general duty to an unrepresented adversary. The Court trusts that prosecutors are equally conscious of the Kutak Commission's observation that "[s]eeking a waiver from an unrepresented defendant often will have adverse consequences for both the defendant, who may lose important protections, and the criminal justice system, which becomes immersed in costly, time-consuming appeals," and will only do so when satisfied that the waiver is knowing, voluntary and intelligent.
A lawyer representing a client before a legislative or administrative tribunal in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of RPC 3.3(a) through (c), RPC 3.4(a) through (c), RPC 3.5(a), and RPC 3.5(c).
The Court has adopted the recommendation of the Debevoise Committee. That committee had recommended adoption of ABA Model Rule 3.9 with the exclusion of reference to RPC 3.5(b), which would have applied the ex parte communication proscription to this nonadjudicative proceedings setting. The Court recognizes that the requirements of this rule might well subject lawyers to regulation inapplicable to advocates appearing before the very same legislative or administrative tribunals but who are not lawyers. As noted by the Debevoise Committee, "legislatures and administrative agencies have a right to expect lawyers to deal with them in the same responsible manner in which they deal with courts."
(a) In representing a client a lawyer shall not knowingly:
(1) make a false statement of material fact or law to a third person; or
(2) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
(b) The duties stated in this Rule apply even if compliance requires disclosure of information otherwise protected by RPC 1.6.
The Court has adopted the recommendation of the Debevoise Committee. As adopted, subparagraph (a)(2) states negatively the affirmative duty to disclose set forth in RPC 1.6. However, as provided in paragraph (b), this rule in certain situations can impose an even greater duty upon an attorney to disclose information than is required under RPC 1.6. Consequently, RPC 4.1(a)(2) would appear to extend the limits of RPC 1.6 in compelling disclosure. However, while RPC 1.6 imposes on the attorney an affirmative duty to disclose by seeking out the proper authorities, RPC 4.1 limits the duty to disclose to those situations in which the lawyer is being questioned by a third party. There is thus no actual inherent conflict, except that in a given situation RPC 4.1 can impose on an attorney an even greater duty to disclose than is required under RPC 1.6.
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter, including members of an organization's litigation control group as defined by RPC 1.13, unless the lawyer has the consent of the other lawyer, or is authorized by law to do so, or unless the sole purpose of the communication is to ascertain whether the person is in fact represented. Reasonable diligence shall include, but not be limited to, a specific inquiry of the person as to whether that person is represented by counsel. Nothing in this rule shall, however, preclude a lawyer from counseling or representing a member or former member of an organization's litigation control group who seeks independent legal advice.
Note: Adopted September 10, 1984, to be effective immediately; amended June 28, 1996, to be effective September 1, 1996.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 4.2.
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. If the person is a director, officer, employee, member, shareholder or other constituent of an organization concerned with the subject of the lawyer's representation but not a person defined by RPC 1.13(a), the lawyer shall also ascertain by reasonable diligence whether the person is actually represented by the organization's attorney pursuant to RPC 1.13(e) or who has a right to such representation on request, and, if the person is not so represented or entitled to representation, the lawyer shall make known to the person that insofar as the lawyer understands, the person is not being represented by the organization's attorney.
Note: Adopted September 10, 1984, to be effective immediately; amended June 28, 1996, to be effective September 1, 1996.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 4.3. As noted by the Committee and in the ABA Comment, in some situations it may be sufficient merely to suggest that the unrepresented person retain counsel.
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 4.4.
(a) Every law firm and organization authorized by the Court Rules to practice law in this jurisdiction shall make reasonable efforts to ensure that member lawyers or lawyers otherwise participating in the organization's work undertake measures giving reasonable assurance that all lawyers conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or ratifies the conduct involved; or
(2) the lawyer having direct supervisory authority over the other lawyer knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
The Court has adopted the Debevoise Committee recommendation, with one revision to paragraph (a) so as to make clear its applicability to all lawyers and entities engaged in the practice of law. This version further differs somewhat from the ABA-adopted rule in that it does not impute responsibility upon a partner in a law firm for the ethical transgressions of law partners unless the attorney had direct supervisory authority over them. See also RPC 8.4(a).
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 5.2. This rule is a corollary to RPC 5.1 ("Responsibilities of a Partner or Supervisory Lawyer"). As noted by the Debevoise Committee, while this rule has no counterpart in the Disciplinary Rules which these rules replace, "the need exists to state explicitly the paramount nature of the subordinate attorney's ethical obligations."
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) every lawyer or organization authorized by the Court Rules to practice law in this jurisdiction shall adopt and maintain reasonable efforts to ensure that the conduct of nonlawyers retained or employed by the lawyer, law firm or organization is compatible with the professional obligations of the lawyer.
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or ratifies the conduct involved;
(2) the lawyer has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action; or
(3) the lawyer has failed to make reasonable investigation of circumstances that would disclose past instances of conduct by the nonlawyer incompatible with the professional obligations of a lawyer, which evidence a propensity for such conduct.
This rule mirrors as to "nonlawyer assistants" the provisions of RPC 5.1.
The Court has added to the Debevoise Committee recommendation subparagraph (c)(3) requiring lawyers to make reasonable inquiry as to whether their nonlawyer employees have by instances of past conduct demonstrated a propensity for conduct incompatible with the lawyer's ethical obligations. Cf. DiCosala v. Kay, 91 N.J. 159, 169 et seq. (1982) (the tort of "negligent hiring"). The Court has also revised paragraph (a) consistent with the recommendations of the NJSBA so as to make the rule applicable to all entities engaged in the practice of law.
Except as otherwise provided by the Court Rules:
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;
(2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer;
(3) a lawyer who purchases a practice from the estate of a deceased lawyer, or from any person acting in a representative capacity for a disabled or disappeared lawyer, may, pursuant to the provisions of RPC 1.17, pay to the estate or other representative of that lawyer the agreed upon price; and
(4) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation, association, or limited liability entity authorized to practice law for profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
Note: Adopted July 12, 1984, to be effective September 10, 1984; paragraph (a)(2) amended and paragraph (a)(3) adopted October 16, 1992, to be effective immediately; paragraph (d) amended July 10, 1998, to be effective September 1, 1998.
While the Debevoise Committee recommended against adoption of this rule (favoring instead an amendment to the Court Rules), the Court has adopted ABA Model Rule 5.4, but has also added an introductory clause permitting exceptions as otherwise provided by the Court Rules. This is consistent with the recommendation made by the NJSBA in its written comments submitted to the Court. As noted in those comments, "[t]he addition of the prefatory language would specifically provide for charitable and legal services corporations as set out in R. 1:21-1(d)." See also RPC 1.5.
A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.
The Court has adopted ABA Model Rule 5.5 ("Unauthorized Practice of Law"). This rule was added to the ABA Model Rules of Professional Conduct subsequent to the completion of the Debevoise Committee report; thus that committee neither reviewed this rule nor made any recommendation as to it. RPC 5.5 ("Restrictions on Right to Practice"), as contained in the Debevoise Committee report, is here renumbered, consistent with the ABA Model Rules, as RPC 5.6.
A lawyer shall not participate in offering or making:
(a) a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 5.6 (although that rule was numbered as RPC 5.5 by the Debevoise Committee; see above Comment to RPC 5.5).
A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.
The Court has adopted ABA Model Rule 6.1, rather than the version recommended by the Debevoise Committee (which would have put a minimum limit on the amount of financial support to a legal services organization that would satisfy the attorney's public interest legal service obligation). The Court retitled this rule so as to reflect its content more accurately. This rule has no counterpart in the prior Disciplinary Rules.
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 6.2. It should be stressed that in no way will the client's indigency be used as a basis for avoiding such appointments; to the extent that the ABA Comment to this rule reads otherwise, it is disapproved.
A lawyer may serve as a director, officer or member of a legal services organization, other than the law firm with which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer if:
(a) the organization complies with RPC 5.4 concerning the professional independence of its legal staff; and
(b) when the interests of a client of the lawyer could be affected, participation is consistent with the lawyer's obligations under RPC 1.7 and the lawyer takes no part in any decision by the organization that could have a material adverse effect on the interest of a client or class of clients of the organization or upon the independence of professional judgment of a lawyer representing such a client.
The Court has adopted the recommendation of the Debevoise Committee rather than the ABA version of this rule. This follows more closely the earlier Kutak Commission version of RPC 6.3. This rule recognizes the need for private lawyers to serve in legal services organizations, so long as no conflicts of interest are involved and so long as the professional independence of the legal staff is preserved. See also RPC 6.4.
A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefited by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client, except that when the organization is also a legal services organization, RPC 6.3 shall apply.
The Court has adopted the recommendation of the Debevoise Committee, which had recommended adoption of ABA Model Rule 6.4 with language added at the end so that "except when the organization is also a legal services organization, RPC 6.3 shall apply." See also RPC 6.3.
(a) A lawyer shall not make false or misleading communications about the lawyer, the lawyer's services, or any matter in which the lawyer has or seeks a professional involvement. A communication is false or misleading if it:
(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;
(3) compares the lawyer's services with other lawyers' services; or
(4) relates to legal fees other than:
(i) a statement of the fee for an initial consultation;
(ii) a statement of the fixed or contingent fee charged for a specific legal service, the description of which would not be misunderstood or be deceptive;
(iii) a statement of the range of fees for specifically described legal services, provided there is a reasonable disclosure of all relevant variables and considerations so that the statement would not be misunderstood or be deceptive;
(iv) a statement of specified hourly rates, provided the statement makes clear that the total charge will vary according to the number of hours devoted to the matter, and in relation to the varying hourly rates charged for the services of different individuals who may be assigned to the matter;
(v) the availability of credit arrangements; and
(vi) a statement of the fees charged by a qualified legal assistance organization in which the lawyer participates for specific legal services the description of which would not be misunderstood or be deceptive.
(b) It shall be unethical for a lawyer to use an advertisement or other related communication known to have been disapproved by the Committee on Attorney Advertising, or one substantially the same as the one disapproved, until or unless modified or reversed by the Advertising Committee or as provided by Rule 1:19-3(d).
Note: Adopted July 12, 1984, to be effective September 10, 1984; new paragraph (b) added June 26, 1987, to be effective July 1, 1987; paragraph (a) amended June 29, 1990, to be effective September 4, 1990.
This is renumbered DR 2-101, which the Court revised and adopted on January 16, 1984. What follows is the comment that accompanied that revision (see 113 N.J.L.J. 91 (1984)).
This rule governs all communications about a lawyer's services, including advertising and direct personal contact with potential clients permitted by RPC 7.2 and RPC 7.3. Whatever means are used to make known a lawyer's services, statements about them should be truthful. The prohibition in paragraph (a)(2) of statements that may create "unjustified expectations" would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts or advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for others without regard to the specific factual and legal circumstances.
Under this rule, any complaints regarding objectionable attorney advertising would be channeled through the existing disciplinary structure. The Court will establish a committee to assist lawyers who have questions as to the propriety of particular advertisements.
The inclusion of a requirement of "accuracy" was also considered but was deemed unnecessary. While mere technical inaccuracies will not necessarily render a communication "misleading," any significant inaccuracy that works against the interest of consumers would probably not survive the application of the "misleading" standard.
This rule contains a prohibition on advertising that compares the attorney's services with other lawyers' services. Comparative advertising, if not inherently misleading, has a substantial probability for misleading consumers. This problem stems from the highly individualized nature of all but the most routine legal problems. Just as the U.S. Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), limited price advertising to routine, standardized services because of the risk of misleading consumers, so does the Court here prohibit comparative advertising. While the very nature and function of advertising may make self-laudation unavoidable, comparisons are avoidable. The public will not be served by advertising that denigrates others.
(a) Subject to the requirements of RPC 7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through mailed written communication. All advertisements shall be predominantly informational. No drawings, animations, dramatizations, music, or lyrics shall be used in connection with televised advertising. No advertisement shall rely in any way on techniques to obtain attention that depend upon absurdity and that demonstrate a clear and intentional lack of relevance to the selection of counsel; included in this category are all advertisements that contain any extreme portrayal of counsel exhibiting characteristics clearly unrelated to legal competence.
(b) A copy or recording of an advertisement or written communication shall be kept for three years after its dissemination along with a record of when and where it was used.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that: (1) a lawyer may pay the reasonable cost of advertising or written communication permitted by this Rule; (2) a lawyer may pay the reasonable cost of advertising, written communication or other notification required in connection with the sale of a law practice as permitted by RPC 1.17; and (3) a lawyer may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.
Note: Adopted July 12, 1984, to be effective September 10, 1984; paragraph (a) amended December 10, 1986, to be effective December 10, 1986; paragraph (c) amended October 16, 1992, to be effective immediately.
This is renumbered DR 2-102, which the Court revised and adopted on January 16, 1984. What follows is the comment that accompanied that revision (see 113 N.J.L.J. 91, 91-92 (1984)).
To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized informational campaigns in the form of advertising.
Television is now one of the most important media for getting information to the public, particularly persons of low and moderate income. Prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public.
Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public's need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.
This rule permits public dissemination of information concerning a lawyer's name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.
Paragraph (a) permits communication by mail to a specific individual as well as general mailings, but does not permit contact by telephone or in-person delivery of written material except through the postal service or similar delivery service.
The rule requires that all advertisements about a lawyer or the lawyer's services be presented in a dignified manner, and prohibits certain modes of presentation such as music, animations, and the like. These devices would add little, if any, consumer-useful information to a communication, and are more likely to attract clients for reasons other than those that are relevant to the selection of appropriate counsel. Any consumer-useful facts that might be conveyed by the use of jingles, lyrics, cartoons and the like can be communicated freely and explicitly via the written and spoken word.
This rule does not prohibit communications authorized by law, such as notice to members of a class in class action litigation.
Paragraph (b) requires that a record of the content and use of advertising be kept in order to facilitate enforcement of this rule. It does not require that advertising be subject to review prior to dissemination. Such a requirement would be burdensome and expensive relative to its possible benefits, and may be of doubtful constitutionality.
A lawyer is allowed to pay for advertising permitted by this rule, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer's services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in not-for-profit lawyer referral programs and pay the usual fees charged by such programs. Paragraph (c) does not prohibit paying regular compensation to an assistant, such as a secretary, or to a public relations firm, to prepare communications permitted by this rule. No payment, however, shall be made to anyone, including a public relations firm, to obtain publicity in news articles or news broadcasts.
(a) A lawyer may initiate personal contact with a prospective client for the purpose of obtaining professional employment, subject to the requirements of paragraph (b).
(b) A lawyer shall not contact, or send a written communication to, a prospective client for the purpose of obtaining professional employment if:
(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer; or
(2) the person has made known to the lawyer a desire not to receive communications from the lawyer; or
(3) the communication involves coercion, duress or harassment; or
(4) the communication involves unsolicited direct contact with a prospective client within thirty days after a specific mass-disaster event, when such contact concerns potential compensation arising from the event; or
(5) the communication involves unsolicited direct contact with a prospective client concerning a specific event not covered by section (4) of this Rule when such contact has pecuniary gain as a significant motive except that a lawyer may send a letter by mail to a prospective client in such circumstances provided the letter:
(i) bears the word "ADVERTISEMENT" prominently displayed in capital letters at the top of the first page of text; and
(ii) contains the following notice at the bottom of the last page of text: "Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision."; and
(iii) contains an additional notice also at the bottom of the last page of text that the recipient may, if the letter is inaccurate or misleading, report same to the Committee on Attorney Advertising, Hughes Justice Complex, CN 037, Trenton, New Jersey 08625.
(c) A lawyer shall not knowingly assist an organization that furnishes or pays for legal services to others to promote the use of the lawyer's services or those of the lawyer's partner, or associate, or any other lawyer affiliated with the lawyer or the lawyer's firm, as a private practitioner, if:
(1) the promotional activity involves use of a statement or claim that is false or misleading within the meaning of RPC 7.1; or
(2) the promotional activity involves the use of coercion, duress, compulsion, intimidation, threats, unwarranted promises of benefits, overreaching, or vexatious or harassing conduct.
(d) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in the lawyer's employment by a client except that the lawyer may pay for public communications permitted by RPC 7.1 and the usual and reasonable fees or dues charged by a lawyer referral service operated, sponsored, or approved by a bar association.
(e) A lawyer shall not knowingly assist a person or organization that furnishes or pays for legal services to others to promote the use of the lawyer's services or those of the lawyer's partner or associate or any other lawyer affiliated with the lawyer or the lawyer's firm except as permitted by RPC 7.1. However, this does not prohibit a lawyer or the lawyer's partner or associate or any other lawyer affiliated with the lawyer or the lawyer's firm from being recommended, employed or paid by or cooperating with one of the following offices or organizations that promote the use of the lawyer's services or those of the lawyer's partner or associate or any other lawyer affiliated with the lawyer or the lawyer's firm if there is no interference with the exercise of independent professional judgment in behalf of the lawyer's client:
(1) a legal aid office or public defender office:
(i) operated or sponsored by a duly accredited law school.
(ii) operated or sponsored by a bona fide nonprofit community organization.
(iii) operated or sponsored by a governmental agency.
(iv) operated, sponsored, or approved by a bar association.
(2) a military legal assistance office.
(3) a lawyer referral service operated, sponsored, or approved by a bar association.
(4) any bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries provided the following conditions are satisfied:
(i) such organization, including any affiliate, is so organized and operated that no profit is derived by it from the furnishing, recommending or rendition of legal services by lawyers and that, if the organization is organized for profit, the legal services are not rendered by lawyers employed, directed, supervised or selected by it except in connection with matters when such organization bears ultimate liability of its member or beneficiary.
(ii) neither the lawyer, nor the lawyer's partner or associate or any other lawyer or nonlawyer affiliated with the lawyer or the lawyer's firm directly or indirectly who have initiated or promoted such organization shall have received any financial or other benefit from such initiation or promotion.
(iii) such organization is not operated for the purpose of procuring legal work or financial benefit for any lawyer as a private practitioner outside of the legal services program of the organization.
(iv) the member or beneficiary to whom the legal services are furnished, and not such organization, is recognized as the client of the lawyer in the matter.
(v) any member or beneficiary who is entitled to have legal services furnished or paid for by the organization may, if such member or beneficiary so desires, and at the member or beneficiary's own expense except where the organization's plan provides for assuming such expense, select counsel other than that furnished, selected or approved by the organization for the particular matter involved. Nothing contained herein, or in the plan of any organization that furnishes or pays for legal services pursuant to this section, shall be construed to abrogate the obligations and responsibilities of a lawyer to the lawyer's client as set forth in these Rules.
(vi) the lawyer does not know or have cause to know that such organization is in violation of applicable laws, rules of court and other legal requirements that govern its legal service operations.
(vii) such organization has first filed with the Supreme Court and at least annually thereafter on the appropriate form prescribed by the Court a report with respect to its legal service plan. Upon such filing, a registration number will be issued and should be used by the operators of the plan on all correspondence and publications pertaining to the plan thereafter. Such organization shall furnish any additional information requested by the Supreme Court.
(f) A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks the lawyer's services does so as a result of conduct prohibited under this Rule.
Note: Adopted July 12, 1984, to be effective September 10, 1984; paragraph (b)(4) amended June 29, 1990, to be effective September 4, 1990; new paragraph (b)(4) adopted and former paragraph (b)(4) redesignated and amended as paragraph (b)(5) April 28, 1997, to be effective May 5, 1997.
This is renumbered DR 2-103, which the Court revised and adopted on January 16, 1984, with erroneous cross-references in paragraph (c) deleted. What follows is the comment that accompanied that revision (see 113 N.J.L.J. 91, 92 (1984)).
Solicitation generally is not harmful. For example, lawyers have been and should continue to be permitted to make personal contact (1) if the prospective client is a close friend, relative, former client or one whom the lawyer reasonably believes to be a client; (2) under the auspices of a public or charitable legal services organization; or (3) under the auspices of a bona fide political, social, civic, fraternal, employee or trade organization whose purposes include but are not limited to providing or recommending legal services, if the legal services are related to the principal purposes of the organization.
Similarly, this rule would not prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for its members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or the lawyer's firm is willing to offer. This form of communication is not directed to a specific prospective client known to need legal services related to a particular matter. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances the actual activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual can be compared favorably with advertising permitted under RPC 7.2.
Unrestricted solicitation, however, involves definite social harms. Among these are harassment, overreaching, provocation of nuisance litigation and schemes for systematic fabrication of claims, all of which were experienced prior to adoption of restrictions on solicitation. Measures reasonably designed to suppress these harms are constitutionally legitimate. At the same time, measures going beyond realization of such objectives would appear to be invalid under relevant decisions of the United States Supreme Court.
In determining whether a contact is permissible under RPC 7.3(b), it is relevant to consider the time and circumstances under which the contact is initiated. For example, a person undergoing active medical treatment for traumatic injury is unlikely to be in an emotional state in which reasonable judgment about employing a lawyer can be exercised.
(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer may not, however, state or imply that the lawyer has been recognized or certified as a specialist in a particular field of law except as provided in paragraph (b) of this Rule.
(b) A lawyer may communicate that the lawyer has been certified as a specialist or certified in a field of practice only when the communication is not false or misleading, states the name of the certifying organization, and states that the certification has been granted by the Supreme Court of New Jersey or by an organization that has been approved by the American Bar Association. If the certification has been granted by an organization that has not been approved, or has been denied approval, by the Supreme Court of New Jersey or the American Bar Association, the absence or denial of such approval shall be clearly identified in each such communication by the lawyer.
Note: Adopted July 12, 1984, to be effective September 10, 1984; former rule amended and designated paragraph (a) and new paragraph (b) adopted July 15, 1993, to be effective September 1, 1993.
This is renumbered DR 2-104, which the Court revised and adopted on January 16, 1984. What follows is the comment that accompanied that revision (see 113 N.J.L.J. 91, 92-93 (1984)).
The public has a legitimate interest in knowing in what areas of the law a lawyer practices.
This rule permits a lawyer to indicate areas of practice in communications about the lawyer's services, for example, in a telephone directory or other advertising. If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted so to indicate. Stating that the lawyer's practice is "limited to" or "concentrated in" particular fields is permitted except where the Court has designated areas of specialty certification. In those areas, only certified attorneys may list their practice as limited to the designated specialty.
(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates RPC 7.1. Except for organizations referred to in R. 1:21-1(d), the name under which a lawyer or law firm practices shall include the full or last names of one or more of the lawyers in the firm or office or the names of a person or persons who have ceased to be associated with the firm through death or retirement.
(b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction. In New Jersey, identification of all lawyers of the firm, in advertisements, on letterheads or anywhere else that the firm name is used, shall indicate the jurisdictional limitations on those not licensed to practice in New Jersey. Where the name of an attorney not licensed to practice in this State is used in a firm name, any advertisement, letterhead or other communication containing the firm name must include the name of at least one licensed New Jersey attorney who is responsible for the firm's New Jersey practice or the local office thereof.
(c) A firm name shall not contain the name of any person not actively associated with the firm as an attorney, other than that of a person or persons who have ceased to be associated with the firm through death or retirement.
(d) Lawyers may state or imply that they practice in a partnership only if the persons designated in the firm name and the principal members of the firm share in the responsibility and liability for the firm's performance of legal services.
(e) A law firm name may include additional identifying language such as "& Associates" only when such language is accurate and descriptive of the firm. Any firm name including additional identifying language such as "Legal Services" or other similar phrases shall inform all prospective clients in the retainer agreement or other writing that the law firm is not affiliated or associated with a public, quasi-public or charitable organization. However, no firm shall use the phrase "legal aid" in its name or in any additional identifying language.
(f) In any case in which an organization practices under a trade name as permitted by paragraph (a) above, the name or names of one or more of its principally responsible attorneys, licensed to practice in this State, shall be displayed on all letterheads, signs, advertisements and cards or other places where the trade name is used.
Note: Adopted July 12, 1984, to be effective September 10, 1984; paragraphs (a) and (d) amended, paragraph (e) amended and redesignated as paragraph (f) and new paragraph (e) added June 29, 1990, to be effective September 4, 1990.
This is renumbered DR 2-105, which the Court revised and adopted on January 16, 1984. What follows is the comment that accompanied that revision (see 113 N.J.L.J. 91, 93 (1984)).
This rule requires that the name under which a firm operates must contain the full or last names of one or more of the lawyers in the firm or office. Firms may retain the names of deceased or retired members provided that the status of those members is clearly set forth. Except for nonprofit legal aid or public interest law firms, the rule does not permit the use of a name that contains anything other than the name or names of individual lawyers. Although "Smith and Jones" would be acceptable, "The Jones Law Clinic" or "National Legal Services" would not be.
Paragraph (b) provides that law firms from other jurisdictions with offices in New Jersey may use, subject to paragraph (a), a firm name that includes the names of non-New Jersey attorneys. In order to do so, the jurisdictional limitations of practice for those named members of the firm not admitted in New Jersey must be set forth. In addition, when the name of an attorney not licensed in New Jersey is used in any firm name, all advertisements, letterheads or other communications must include the name of at least one attorney who is licensed in New Jersey. The person named must be responsible for the firm's New Jersey practice or a local office in this State. The intent of the rule is to make it clear that consumers are entitled to know with whom they will be dealing. Furthermore, they must know that legal work generated in New Jersey will be handled by lawyers admitted to the bar of this State.
All offices maintained by multi-jurisdiction firms will have to meet the bona fide office requirements of R. 1:21-1(a) and In re Sackman, 90 N.J. 521 (1982).
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by RPC 1.6.
The Court has adopted ABA Model Rule 8.1 rather than the differing language recommended by the Debevoise Committee. The adopted rule applies to applicants for admission to the bar as well as to attorneys in connection with admission proceedings or disciplinary matters.
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications of a judge, adjudicatory officer or other public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who has been confirmed for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
The Court has adopted the recommendation of the Debevoise Committee, but has deleted the reference in paragraph (b) to "nomination" for judicial office. This differs from ABA Model Rule 8.2(b), which refers to "candidates for judicial office."
(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by RPC 1.6.
(d) Paragraph (a) of this Rule shall not apply to knowledge obtained as a result of participation in a Lawyers Assistance Program established by the Supreme Court and administered by the New Jersey State Bar Association, except as follows:
(i) if the effect of discovered ethics infractions on the practice of an impaired attorney is irremediable or poses a substantial and imminent threat to the interests of clients, then attorney volunteers, peer counselors, or program staff have a duty to disclose the infractions to the disciplinary authorities, and attorney volunteers have the obligation to apply immediately for the appointment of a conservator, who also has the obligation to report ethics infractions to disciplinary authorities; and
(ii) attorney volunteers or peer counselors assisting the impaired attorney in conjunction with his or her practice have the same responsibility as any other lawyer to deal candidly with clients, but that responsibility does not include the duty to disclose voluntarily, without inquiry by the client, information of past violations or present violations that did not or do not pose a serious danger to clients.
Note: Adopted July 12, 1984, to be effective September 10, 1984; new paragraph (d) adopted October 5, 1993, to be effective immediately.
As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 8.3. This rule in no way reduces the present obligation to report such judicial and attorney ethical violations.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct or other law;
(g) engage, in a professional capacity, in conduct involving discrimination (except employment discrimination unless resulting in a final agency or judicial determination) because of race, color, religion, age, sex, sexual orientation, national origin, language, marital status, socioeconomic status, or handicap where the conduct is intended or likely to cause harm.
Note: Adopted July 12, 1984, to be effective September 10, 1984; paragraph (g) adopted July 18, 1990, to be effective September 4, 1990; paragraph (g) amended May 3, 1994, to be effective September 1, 1994.
This rule amendment (the addition of paragraph g) is intended to make discriminatory conduct unethical when engaged in by lawyers in their professional capacity. It would, for example, cover activities in the court house, such as a lawyer's treatment of court support staff, as well as conduct more directly related to litigation; activities related to practice outside of the court house, whether or not related to litigation, such as treatment of other attorneys and their staff; bar association and similar activities; and activities in the lawyer's office and firm. Except to the extent that they are closely related to the foregoing, purely private activities are not intended to be covered by this rule amendment, although they may possibly constitute a violation of some other ethical rule. Nor is employment discrimination in hiring, firing, promotion, or partnership status intended to be covered unless it has resulted in either an agency or judicial determination of discriminatory conduct. The Supreme Court believes that existing agencies and courts are better able to deal with such matters, that the disciplinary resources required to investigate and prosecute discrimination in the employment area would be disproportionate to the benefits to the system given remedies available elsewhere, and that limiting ethics proceedings in this area to cases where there has been an adjudication represents a practical resolution of conflicting needs.
"Discrimination" is intended to be construed broadly. It includes sexual harassment, derogatory or demeaning language, and, generally, any conduct towards the named groups that is both harmful and discriminatory.
Case law has already suggested both the area covered by this amendment and the possible direction of future cases. In re Vincenti, 114 N.J. 275 (554 A.2d 470) (1989). The Court believes the administration of justice would be better served, however, by the adoption of this general rule than by a case by case development of the scope of the professional obligation.
While the origin of this rule was a recommendation of the Supreme Court's Task Force on Women in the Courts, the Court concluded that the protection, limited to women and minorities in that recommendation, should be expanded. The groups covered in the initial proposed amendment to the rule are the same as those named in Canon 3A(4) of the Code of Judicial Conduct.
Following the initial publication of this proposed subsection (g) and receipt of various comments and suggestions, the Court revised the proposed amendment by making explicit its intent to limit the rule to conduct by attorneys in a professional capacity, to exclude employment discrimination unless adjudicated, to restrict the scope to conduct intended or likely to cause harm, and to include discrimination because of sexual orientation or socioeconomic status, these categories having been proposed by the ABA's Standing Committee on Ethics and Professional Responsibility as additions to the groups now covered in Canon 3A(4) of the New Jersey Code of Judicial Conduct. That Committee has also proposed that judges require attorneys, in proceedings before a judge, refrain from manifesting by words or conduct any bias or prejudice based on any of these categories. See proposed Canon 3A(6). This revision to the RPC further reflects the Court's intent to cover all discrimination where the attorney intends to cause harm such as inflicting emotional distress or obtaining a tactical advantage and not to cover instances when no harm is intended unless its occurrence is likely regardless of intent, e.g., where discriminatory comments or behavior is repetitive. While obviously the language of the rule cannot explicitly cover every instance of possible discriminatory conduct, the Court believes that, along with existing case law, it sufficiently narrows the breadth of the rule to avoid any suggestion that it is overly broad. See, e.g., In re Vincenti, 114 N.J. 275 (554 A.2d 470) (1989).
The Court has adopted ABA Model Rule 8.4, which defines "professional misconduct." The Debevoise Committee had recommended adoption of an earlier version containing two additional paragraphs, but the provisions of those paragraphs are included in ABA Model Rule 5.5 ("Unauthorized Practice of Law"), which the Court has adopted as RPC 5.5.
A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.
While the Debevoise Committee recommended against adoption of this rule, the Court has adopted ABA Model Rule 8.5 because, even though it had no counterpart in the former Disciplinary Rules, it codifies the existing New Jersey rule in the Rules of Professional Conduct. In its written comments submitted to the Court, the NJSBA had recommended inclusion of a jurisdictional RPC containing the pertinent provisions of R. 1:20-1.
Attorney Advertising Guideline 1
In any advertisement by an attorney or law firm, the advertisement shall include the bona fide street address of the attorney or law firm.
Note: Adopted June 29, 1990, to be effective September 4, 1990.