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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New Jersey Legal Ethics

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:
NJ Commentary:

3.1:101      Model Rule Comparison

The language of RPC 3.1 as adopted by the New Jersey Supreme Court varies slightly from both the ABA Model Rule. The New Jersey Supreme Court’s adoption of this Rule represented a change from the purely subjective standard then in effect under DR 7-102(a) (1) to the “knows or reasonably believes” formulation that an action has a nonfrivolous basis currently found in RPC 3.1. The ABA Model Rule does not contain any standard with respect to the attorney’s knowledge.

3.1:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

3.1:200   Non-Meritorious Assertions in Litigation

Primary New Jersey References: NJ Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL § 170, Wolfram § 11.2
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Primary New Jersey References: NJ Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:151, ALI-LGL § 170, Wolfram § 11.2
NJ Commentary:

Both the Federal Rules of Civil Procedure and the New Jersey Court Rules forbid frivolous litigation in virtually the same terms as RPC 3.1.

Fed. R. Civ. P. 11 provides, in part:

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,-- (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

New Jersey Court R. 1:4-8 was amended effective September 1996 to include a prohibition of frivolous proceedings modeled after Fed. R. Civ. P. 11. Thus, New Jersey Court R. 1:4-8 likewise provides that by signing, filing or “advocating” a pleading, written motion or other paper, an attorney certifies that to the best of his or her knowledge, information, and belief, “formed after an inquiry reasonable under the circumstances” the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; that the legal contentions are warranted by existing law or by a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law; and that the factual contentions or denials have evidentiary support.

Under either rule, violation may result in monetary sanctions, including attorneys’ fees and costs, and these may be imposed on a law firm as well as an individual attorney who is a member of that firm. Under New Jersey Court R. 1:4-8(b) sanctions may be imposed on motion by the adversary, or, under New Jersey Court R. 1:4-8(c) on the court’s own initiative. By means of such sanctions the cost of a proceeding may be shifted from a party imposed upon by such bad faith action to the party who acted in bad faith. Under New Jersey Court R. 1:4-8(d) the court may also require a penalty paid into court. See Section 28:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

Primary New Jersey References: NJ Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL §§ 77, 170, Wolfram § 11.2
NJ Commentary:

Although the issue has not been decided by the New Jersey Supreme Court, at least one case suggests that an attorney who engages in frivolous litigation may be liable in tort to a person who suffers damages as a result. In Tedards v. Auty, 232 N.J. Super. 541 (App. Div. 1989), the plaintiff brought an action against his former wife’s attorney seeking compensatory and punitive damages on the basis that the attorney had obtained a writ of ne exeat and used it to have the plaintiff arrested and imprisoned overnight until he posted bond in the amount demanded by the former wife. The plaintiff claimed that the attorney obtained the writ without probable cause that the plaintiff would abscond unless arrested. See id. at 547-548.

The Appellate Division held that if the plaintiff could demonstrate not only that the writ was obtained without probable cause, but also that the attorney’s motive in obtaining it was for the purpose of coercing or oppressing the plaintiff, he would have proven the tort of malicious abuse of process. The court further held that if the plaintiff could prove that the defendant secured the issuance of process without reason or probable cause, that conduct would be evidence of the ulterior motive of the defendant. See id. at 550-551. While the court considered only RPC 3.3(a)(4), forbidding the offering of evidence known to be false, the attorney’s alleged actions might also violate RPC 3.1. See Section 28:2-5, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

3.1:500   Complying with Law and Tribunal Rulings

Primary New Jersey References: NJ Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 16:1201, ALI-LGL § 165, Wolfram §§ 12.1.3, 13.3.7
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:
NJ Commentary: Section 29:1-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 3.2 creates an affirmative duty on the part of counsel to expedite litigation, provided such expedition is not inconsistent with the client’s interest.

3.2:101      Model Rule Comparison

When the New Jersey Supreme Court adopted RPC 3.2, it adopted the language of ABA Model Rule 3.2 but added a phrase for the former DR 7-101(A)(1) requiring attorneys to exercise “courtesy and consideration” to everyone involved in the legal process.

3.2:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

3.2:200   Dilatory Tactics

Primary New Jersey References: NJ Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:201, ALI-LGL § 166, Wolfram § 11.2.5
NJ Commentary: Section 29:1-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

Perhaps because the language of RPC 3.2 requiring reasonable efforts to expedite litigation is “more or less hortatory,” it has been interpreted infrequently by the courts and not at all by Advisory Committee opinions. See Chernin v. Mardan Corp., 244 N.J. Super. 379, 384 (Ch. Div. 1990), suggesting possible violation of RPC 3.2 where an attorney acting pro se failed for two months to release improperly-joined defendant in an action to foreclose on a tax sale certificate.

3.2:300   Judicial Sanctions for Dilatory Tactics

Primary New Jersey References: NJ Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:201, ALI-LGL § 166, Wolfram § 11.2.5
NJ Commentary: Section 29:1-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

A violation of RPC 3.2 has been part of the basis for discipline in many cases disposed of by order, without discussion of the underlying facts. See Matter of Devin, 144 N.J. 476 (1996); Matter of Sternstein, 143 N.J. 128 (1996); Matter of Zotkow, 141 N.J. 34 (1995); Matter of Flayer, 138 N.J. 276 (1994); Matter of Libretti, 134 N.J. 123 (1993); Matter of Hogan, 118 N.J. 425 (1990). It is also implicit in cases involving delay and inattention.

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 3.3
Background References: ABA Model Rule 3.3, Other Jurisdictions
Commentary:
NJ Commentary:

RPC 3.3(b) provides that a lawyer may be required in some circumstances to disclose client information in order to comply with the lawyer’s duty of candor to the tribunal under RPC 3.3(a).

3.3:101      Model Rule Comparison

New Jersey’s RPC 3.3 differs from the ABA Model Rule 3.3 in two ways. First, the provisions of subparagraph (a)(2) are applicable to “illegal” acts by clients, not just “criminal” and “fraudulent” acts as provided in the Model Rule 3.3. Second, 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. See In re Nigohosian, 88 N.J. 308 (1982). Comment to RPC 3.3, 114 N.J.L.J., July 19, 1984, supp. at 8-9.

3.3:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

3.3:200   False Statements to a Tribunal

Primary New Jersey References: NJ Rule 3.3(a)(1) & (2)
Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram § 12.5
NJ Commentary:

Subparagraph (a)(1) of RPC 3.3 prohibits the attorney from knowingly making “a false statement of material fact or law to a tribunal[.]”

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Primary New Jersey References: NJ Rule 3.3(a)(2)
Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180
NJ Commentary: Section 30:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

Subparagraph (a)(2) of RPC 3.3 provides that an attorney shall not knowingly 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[.]” The adoption of this provision merely restated the previous New Jersey position reflected implicitly in DR 7-102(A)(3), albeit a position then held in only a minority of the states. In addition, the New Jersey Supreme Court added to this subparagraph the language requiring disclosure to avoid assisting in an “illegal” as well as a criminal or fraudulent act.

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

[The discussion of this topic has not yet been written.]

3.3:400   Disclosing Adverse Legal Authority

Primary New Jersey References: NJ Rule 3.3(a)(3)
Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
Commentary: ABA/BNA § 4:301, ALI-LGL § 171, Wolfram § 12.8
NJ Commentary: Section 30:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 3.3(a)(3) prohibits knowingly failing “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.” This provision was identical to former DR 7-106(B)(1).

3.3:500   Offering False Evidence

Primary New Jersey References: NJ Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL §§ 175-180, Wolfram §§ 12.3, 12.43, 12.5
NJ Commentary: Section 30:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 3.3(a)(4) prohibits an attorney from knowingly offering “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.” This subparagraph prohibits only the introduction of evidence known to be false, and requires remedial measures only with regard to evidence the lawyer subsequently “comes to know” is false.

3.3:510      False Evidence in Civil Proceedings

[The discussion of this topic has not yet been written.]

3.3:520      False Evidence in Criminal Proceedings

[The discussion of this topic has not yet been written.]

3.3:530      Offering a Witness an Improper Inducement

[The discussion of this topic has not yet been written.]

3.3:540      Interviewing and Preparing Witnesses

[The discussion of this topic has not yet been written.]

3.3:600   Remedial Measures Necessary to Correct False Evidence

Primary New Jersey References: NJ Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 117A-B, Wolfram §§ 12.5, 12.6, 13.3.6
NJ Commentary: Section 30:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

The text of RPC 3.3(a)(4) does not specify what reasonable remedial measures are to be taken if a lawyer learns that he or she has offered false or perjured material evidence. The Debevoise Committee observed that the Kutak Commission’s Comment contained a “progression of steps” for the attorney to take:

If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court. It is for the court then to determine what should be done -- making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing. If the false testimony was that of the client, the client may controvert the lawyer’s version of their communication when the lawyer discloses the situation to the court. If there is an issue whether the client has committed perjury, the lawyer cannot represent the client in resolution of the issue, and a mistrial may be unavoidable. An unscrupulous client might in this way attempt to produce a series of mistrials and thus escape prosecution. However, a second such encounter could be construed as a deliberate abuse of the right to counsel and as such a waiver of the right to further representation.

Debevoise Committee Report, 112 N.J.L.J., July 28, 1983, supp. at 13. See also the current comment to ABA Model Rule 3.3, containing the identical passage.

3.3:610      Duty to Reveal Fraud to the Tribunal

RPC 3.3(a)(5) provides that an attorney shall not knowingly “fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure.” This subparagraph was not part of ABA Model Rule 3.3, but was added by the New Jersey Supreme Court, which noted that it applied both to facts at issue in a case and facts relating to management of the case. Comment to RPC 3.3, 114 N.J.L.J., July 19, 1984, supp. at 8-9.

This provision imposes an obligation on the attorney not easily reconciled with the attorney’s role as advocate. It is one thing for the lawyer not to participate in offering false evidence; it is quite another for the lawyer to be bound to disclose facts that will harm his client’s cause. Because RPC 3.3(a)(5) may require disclosure of information provided in confidence by the client, it may pose constitutional problems in the criminal defense setting. If the client cannot tell his own attorney the truth without incriminating himself, has he received effective assistance of counsel in the sense intended by the Sixth Amendment? The Debevoise Committee has noted generally that all disclosure requirements set forth in the RPCs are subject to the “constitutional rights of defendants in criminal cases.” Debevoise Committee Report, 112 N.J.L.J., July 28, 1983 supp. at 10.

RPC 3.3(a)(5) may be cause for concern in the civil setting as well. The Rule has been the source of controversy and uneven application. See In Matter of Forrest, 158 N.J. 434-35 (1999) (attorney suspended for 6 months for failure to disclose death of client in answers to interrogatories, to arbitrator and adversary and during settlement negotiations). See also N.J. Advisory Comm. on Professional Ethics Op. 643 (May 24, 1990), expressing reluctance to require a disclosure under RPC 3.3(a)(5) despite acknowledging the materiality of the fact at issue and the potential for deception of a tribunal. In Opinion 643, the Committee declined to mandate disclosure by an attorney of a client’s involuntary psychiatric commitment, even though the court presiding over the client’s divorce case had granted the client visitation rights with his child, subject to continued counseling to ensure that the client’s mental condition was not deteriorating. In Matter of Whitmore, 117 N.J. 472 (1990) an attorney violated the Rule by failing to disclose to the court the wrongful behavior of a police officer whose refusal to testify led to the dismissal of charges.

RPC 3.3(b) provides that “[t]he 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.” The paragraph applies to lawyers appearing in a representative capacity before a legislative or administrative tribunal even if the proceeding is nonadjudicative. See RPC 3.9. See Section 30:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

3.3:700   Discretion to Withhold Evidence Believed to Be False

Primary New Jersey References: NJ Rule 3.3(c)
Background References: ABA Model Rule 3.3(c), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram § 12.5
NJ Commentary:

Lawyers are forbidden by RPC 3.3(a)(4) to offer evidence they know to be false and must remedy the situation if they come to know that evidence already given is false. Under RPC 3.3(c), when an attorney reasonably believes the evidence is false, he or she may refuse to offer it, despite the general proscription against overruling a client’s wishes with regard to a representation.

RPC 3.3(c) provides as follows:

A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

The Debevoise Committee commented that this rule gives a lawyer more discretion to refuse to offer evidence than did New Jersey’s former Disciplinary Rules which, like RPC 3.3(a), primarily forbade the offering of evidence known to be false. See Debevoise Committee Report, 112 N.J.L.J., July 28, 1983, supp. at 13. Otherwise, the Committee noted only that “[w]hile there was some serious concern expressed during discussion that this paragraph was not made mandatory rather than permissive, the Committee (on a closely split vote) recommends its adoption as written.” Id.

The provisions of RPC 3.3(c) apply to lawyers representing a client before a legislative or administrative tribunal, even if the proceeding is nonadjudicative. See RPC 3.9. See Section 30:2-4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

3.3:800   Duty of Disclosure in Ex Parte Proceedings

Primary New Jersey References: NJ Rule 3.3(d)
Background References: ABA Model Rule 3.3(d), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 172 , Wolfram § 12.7
NJ Commentary:

RPC 3.3(d) provides that “[i]n 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.”

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 3.4
Background References: ABA Model Rule 3.4, Other Jurisdictions
Commentary:
NJ Commentary:

3.4:101      Model Rule Comparison

The provisions of RPC 3.4 prohibit tactics involving destruction or concealment of evidence, improper influencing of actual or prospective witnesses and certain obstructive discovery tactics. All of these provisions, with the exception of paragraph (d), are drawn from the ABA Model Rule 3.4 and former New Jersey disciplinary rules, DRs 7-102(A)(6), 7-106 and 7-109. Note that paragraph (d) was revised from the Model Rule 3.4 to be consistent with RPC 1.1 “pattern of behavior.” See Comment to RPC 3.4, 114 N.J.L.J., July 19, 1984.

3.4:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

3.4:103      Overview

[The discussion of this topic has not yet been written.]

3.4:200   Unlawful Destruction and Concealment of Evidence

Primary New Jersey References: NJ Rule 3.4(a)
Background References: ABA Model Rule 3.4(a), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL §§ 178, 179, Wolfram § 12.3, 12.4
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.4:210      Physical Evidence of Client Crime

[The discussion of this topic has not yet been written.]

3.4:300   Falsifying Evidence

Primary New Jersey References: NJ Rule 3.4(b)
Background References: ABA Model Rule 3.4(b), Other Jurisdictions
Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 178, Wolfram § 12.3
NJ Commentary: Section 29:3-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 3.4(b) provides that an attorney may not “falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.” This rule does not, however, render it improper to pay the expenses of a witness or to compensate an expert witness on terms permitted by law. The provision clearly covers courtroom testimony as well as material and testimony offered during discovery. It is closely related to RPC 3.3(a)(4) which -- under the rubric of “Candor Toward the Tribunal” -- forbids an attorney from offering to the court evidence that the attorney knows to be false.

3.4:310      Prohibited Inducements

In Goldstein v. Exxon, 1997 WL 580599 (D.N.J.) aff’d 1997 WL 599612 (D.N.J. 1997) the court concluded in dicta that agreement to pay witness for other then lost work time was unenforceable as a matter of public policy.

3.4:400   Knowing Disobedience to Rules of Tribunal

Primary New Jersey References: NJ Rule 3.4(c)
Background References: ABA Model Rule 3.4(c), Other Jurisdictions
Commentary: ABA/BNA § 61:1231, ALI-LGL § 165, Wolfram § 12.1
NJ Commentary:

RPC 3.4(c) provides that an attorney shall not “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”

3.4:500   Fairness in Pretrial Practice

Primary New Jersey References: NJ Rule 3.4(d)
Background References: ABA Model Rule 3.4(d), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL § 166, Wolfram § 12.4
NJ Commentary:

RPC 3.4(d) provides that a lawyer may not “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. Under the Model Rules, a single discovery request or failure to comply would constitute an ethical violation. See ABA Model Rules of Professional Conduct Rule 3.4(d) (1989). This standard was considered too exacting, so that what is required is a pattern of behavior similar to that written by the Committee into RPC 1.1. See id. and Comment to RPC 3.4, 114 N.J.L.J., July 19, 1984, supp. at 9. See Section 29:3-5, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

3.4:600   Improper Trial Tactics

Primary New Jersey References: NJ Rule 3.4(e)
Background References: ABA Model Rule 3.4(e), Other Jurisdictions
Commentary: ABA/BNA § 61:1361, ALI-LGL § 167, Wolfram § 12.1
NJ Commentary:

Paragraph (e) of Rule 3.4 governs fairness specifically during trial. It provides as follows:

A lawyer shall not:

. . .

(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.

This is the Model Rule as written.

3.4:700   Advising Witness Not to Speak to Opposing Parties

Primary New Jersey References: NJ Rule 3.4(f)
Background References: ABA Model Rule 3.4(f), Other Jurisdictions
Commentary: ALI-LGL § 176, Wolfram § 12.4.2
NJ Commentary: Section 29:3-6, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

Subparagraph (f) of RPC 3.4 is the ABA Model Rule 3.4(f) as written. See Comment to RPC 3.4, 114 N.J.L.J., July 19, 1984, supp. at 9.

See Matter of Alcantara, 144 N.J. 257 (1995), which involved an attorney’s request to two of his client’s co-defendants to refrain from testifying against his client after they had entered into a plea agreement with the prosecutor. The New Jersey Supreme Court found a violation of RPC 3.4(f) and reprimanded the lawyer. See id. at 267.

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 3.5
Background References: ABA Model Rule 3.5, Other Jurisdictions
Commentary:
NJ Commentary:

3.5:101      Model Rule Comparison

The New Jersey Supreme Court adopted ABA Model Rule 3.5 in its entirety.

3.5:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

Primary New Jersey References: NJ Rule 3.5(a)
Background References: ABA Model Rule 3.5(a), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 173, 175, Wolfram §§ 11.3, 11.4
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.5:210      Improperly Influencing a Judge

[The discussion of this topic has not yet been written.]

3.5:220      Improperly Influencing a Juror

[The discussion of this topic has not yet been written.]

3.5:300   Improper Ex Parte Communication

Primary New Jersey References: NJ Rule 3.5(b)
Background References: ABA Model Rule 3.5(b), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL § 172, Wolfram § 11.3.3
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.5:400   Intentional Disruption of a Tribunal

Primary New Jersey References: NJ Rule 3.5(c)
Background References: ABA Model Rule 3.5(c), Other Jurisdictions
Commentary: ABA/BNA § 61:901, ALI-LGL § 165, Wolfram § 12.1.3
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 3.6
Background References: ABA Model Rule 3.6, Other Jurisdictions
Commentary:
NJ Commentary:

3.6:101      Model Rule Comparison

The Debevoise Committee recommended the adoption of ABA Model Rule 3.6 in its entirety. See Debevoise Committee Report, 112 N.J.L.J., July 28, 1983, supp. at 14-15. In adopting RPC 3.6, the New Jersey Supreme Court noted that the rule included several ABA amendments to the Kutak Commission version recommended by the Debevoise Committee. The New Jersey Supreme Court also observed that in paragraph (a) of the rule as adopted, the “reasonable lawyer” standard had been substituted for the “reasonable person” standard suggested by the Debevoise Committee. See Comment to RPC 3.6, 114 N.J.L.J., July 19, 1984, supp. at 9-10.

3.6:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

3.6:200   Improper Extrajudicial Statements

Primary New Jersey References: NJ Rule 3.6(a)
Background References: ABA Model Rule 3.6(a), Other Jurisdictions
Commentary: ABA/BNA § 61:1001, ALI-LGL § 169, Wolfram § 12.2
NJ Commentary: Section 31:3-4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 3.6 does not purport to limit the attorney’s statements to or before the tribunal even though media reporters may be present. The concern of RPC 3.6 is only with “extrajudicial” speech. The New Jersey Supreme Court in In re Hinds, 90 N.J. 604, 633, (1982), ruled that the former parallel disciplinary provision was applicable only to lawyers with “supervening professional responsibilities” in a case. Under DR 7-107 then, a finding that an attorney had sufficient association with the trial was a prerequisite to discipline. The Hinds Court interpreted the phrase “associated with” in the context of a criminal case to include not only attorneys of record but also an attorney who cooperates with the defense of a criminal prosecution on a regular and continuing basis, provides legal assistance in connection with the defense of a criminal charge, and holds himself out to be a member of the defense team. Id. at 628. In addition, the New Jersey Supreme Court ruled that its interpretation of the degree of “association with” a matter necessary for application of the rule should be given prospective effect only. Id. at 629-630.

See Kramer v. Tribe, 156 F.R.D. 96, 103, 109-110 (D.N.J. 1994), aff’d mem. 52 F.3d 315 (3rd Cir.), cert. denied 133 L. Ed. 2d 195 (1995), finding that an attorney violated RPC 3.6(a) by sending copies of a complaint for fraud and defamation against a law professor to various newspapers, including student-run newspapers at the professor’s school, and by “engineering” front-page stories about the lawsuit in several of these publications. The purpose of the lawyer's media campaign was to force a settlement of the suit. The court stated that using the media to publicize a case as a litigation tactic is not only a violation of RPC 3.6(a), but is also disruptive, wasteful, and inherently prejudicial.

See also In re Rachmiel, 90 N.J. 646, 658 (1982), observing that a former prosecutor's remarks in the press about an ongoing criminal matter were "highly improper," but refusing to decide whether they were reasonably likely to interfere with the proceedings. In the matter in question, the defendant had been convicted several times, but each conviction had been overturned. And see State v. Biegenwald, 106 N.J. 13 (1987), holding that a prosecutor violated DR 7-107(A) and (B) when he commented during press briefings on the defendant's guilt, his motive, the events surrounding the crimes, and portions of the state's evidence. See id. at 40.

3.6:300   Permissible Statements

Primary New Jersey References: NJ Rule 3.6(b)
Background References: ABA Model Rule 3.6(b), Other Jurisdictions
Commentary: ABA/BNA § 69:1001, ALI-LGL § 169, Wolfram § 12.2
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.6:400   Responding to Adverse Publicity

Primary New Jersey References: NJ Rule 3.6(c)
Background References: ABA Model Rule 3.6(c), Other Jurisdictions
Commentary: ABA/BNA § 61:100l, ALI-LGL § 169, Wolfram § 12.2
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 3.7
Background References: ABA Model Rule 3.7, Other Jurisdictions
Commentary:
NJ Commentary:

3.7:101      Model Rule Comparison

RPC 3.7 is adopted from the ABA Model Rule 3.7.

3.7:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

3.7:200   Prohibition of Advocate as Witness

Primary New Jersey References: NJ Rule 3.7(a)
Background References: ABA Model Rule 3.7(a), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 168, Wolfram § 7.5
NJ Commentary: Section 31:4-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 3.7 precludes a lawyer from accepting or continuing a representation only if the lawyer is "likely to be a necessary witness." Construing this language, the court in Freeman v. Vicchiarelli, 827 F. Supp. 300, 302 (D.N.J. 1993) stated that "RPC 3.7 does not require certainty as to a lawyer's testimony; the plain language of RPC 3.7 requires only `likelihood.'"

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

Primary New Jersey References: NJ Rule 3.7(b)
Background References: ABA Model Rule 3.7(b), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 168, Wolfram § 7.5, 7.6
NJ Commentary: Section 31:4-4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

The disqualification of an attorney under RPC 3.7(a) is not imputed to the attorney's firm unless the representation would also involve a conflict of interest between the lawyer and the client within the meaning of either RPC 1.7 or RPC 1.9. See State v. Irizarry, 271 N.J. Super. 577, 593-594 (App. Div. 1994).

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 3.8
Background References: ABA Model Rule 3.8, Other Jurisdictions
Commentary:
NJ Commentary: Section 31:5-7, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

3.8:101      Model Rule Comparison

When the New Jersey Supreme Court adopted RPC 3.8 in 1984, it modified subsection (c) of the Model Rule to apply only to waivers of post-indictment pretrial rights. The New Jersey Supreme Court believed that this would conform more closely to existing New Jersey decisional law and that the focus of the rule should be on "those circumstances in which the right to counsel attaches as a matter of law or request." Rules of Professional Conduct, Comment to RPC 3.8, 114 N.J.L.J., July 19, 1984, supp. at 10. The New Jersey Supreme Court also stated, "[p]reindictment 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." Id.

New Jersey did not adopt subsection (e) of the Model Rule 3.8. Despite this, a similar duty may be imposed on prosecutors in New Jersey by RPC 5.3(b)'s requirement that a lawyer make reasonable efforts to ensure that a nonlawyer assistant's "conduct is compatible with the professional obligations of the lawyer." RPC 5.3 applies to nonlawyers "employed or retained by or associated with a lawyer." See also State v. Sanchez, 129 N.J. 261, 278 (1992), citing Model Rule 3.8(e) with approval, although acknowledging that it is not part of RPC 3.8.

A prosecutor also has an obligation to refrain from improper and inflammatory comments during a summation to a jury and to avoid injecting a personal opinion about the defendant's guilt into closing arguments. See State v. Marshall, 123 N.J. 1, 158-160 (1991); State v. Ramseur, 106 N.J. 123, 320-322 (1987). In addition, a prosecutor may not incorporate personal opinions about truth or falsity into his or her examinations of witnesses, nor may a prosecutor refer during such questioning to evidence that is not in the record. See Marshall, supra, at 153-155. While such actions may be more properly characterized as violations of RPC 3.4(e), which applies to all lawyers, the New Jersey Supreme Court has analyzed them as violations of "the special ethical rules governing prosecutors." See Ramseur, supra, at 323. See also State v. Frost, 158 N.J. 76 (1999) (reversing conviction due to prosecutor’s improper remarks at closing).

3.8:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

3.8:200   The Decision to Charge

Primary New Jersey References: NJ Rule 3.8(a)
Background References: ABA Model Rule 3.8(a), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.8:300   Efforts to Assure Accused's Right to Counsel

Primary New Jersey References: NJ Rule 3.8(b)
Background References: ABA Model Rule 3.8(b), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10
NJ Commentary: Section 31:5-4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 3.8(b) requires that a prosecutor take reasonable steps to ensure that an accused has received advice regarding his or her right to counsel at all stages of the proceedings against him or her, as well as a reasonable opportunity to obtain counsel. See generally State v. Sanchez, 129 N.J. 261 (1992).

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Primary New Jersey References: NJ Rule 3.8(c)
Background References: ABA Model Rule 3.8(c), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10
NJ Commentary: Section 31:5-5, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

The New Jersey Supreme Court stated in State v. Sanchez, 129 N.J. 261, 277 (1992) that one of the implications of RPC 3.8 "is that after the return of an indictment, prosecutors and their representatives should not initiate conversations with an uncounselled defendant." This statement is consistent with the New Jersey Supreme Court's comment upon adoption of the rule that RPC 3.8(c) was intended to prevent prosecutors from seeking post-indictment waivers of important rights from unrepresented persons.

3.8:500   Disclosing Evidence Favorable to the Accused

Primary New Jersey References: NJ Rule 3.8(d)
Background References: ABA Model Rule 3.8(d), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10.5
NJ Commentary: Section 31:5-6, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

A prosecutor's obligation under RPC 3.8(d) to provide exculpatory evidence to the defense is similar to the duties imposed on the prosecution by Brady v. Maryland, 373 U.S. 83 (1963) and New Jersey Court R. 3:13-3. See Pressler, Current N.J. Court Rules (Gann), comments to New Jersey Court R. 3:13-3. The obligation applies in municipal court, see State v. Tull, 234 N.J. Super. 486 (Law Div. 1989), as well as to private prosecutors. See State v. Cantor, 221 N.J. Super. 219, 221-222 (App. Div. 1987), certif. den. 110 N.J. 291 (1988), noting that a municipal court conviction had been reversed because a private prosecutor failed to provide exculpatory evidence to the defense.

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Primary New Jersey References: NJ Rule 3.8(e)
Background References: ABA Model Rule 3.8(e), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.8:700   Issuing a Subpoena to a Lawyer

Primary New Jersey References: NJ Rule 3.8(f)
Background References: ABA Model Rule 3.8(f), Other Jurisdictions
Commentary: ABA/BNA § 55:1301, ALI-LGL § 156
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.8:800   Making Extrajudicial Statements

Primary New Jersey References: NJ Rule 3.8(g)
Background References: ABA Model Rule 3.8(g), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 169, Wolfram § 12.2.2
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.8:900   Peremptory Strikes of Jurors

Primary New Jersey References: NJ Rule 3.8
Background References: Other Jurisdictions
Commentary:
NJ Commentary:

[The discussion of this topic has not yet been written.]

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:
NJ Commentary:

3.9:101      Model Rule Comparison

The New Jersey Supreme Court adopted Model Rule 3.9 in its entirety, except for the reference to RPC 3.5(b). The New Jersey Supreme Court noted that this reference would have applied the ex parte communication proscription to nonadjudicative proceeding settings. See Comment to RPC 3.9, 114 N.J.L.J., July 19, 1984.

3.9:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

Primary New Jersey References: NJ Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 164, Wolfram § 13.8
NJ Commentary:

RPC 3.9 applies to nonadjudicative proceedings before an administrative tribunal. RPC 3.9 requires that a lawyer representing a client before such a tribunal 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).