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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:
NJ Commentary: Section 30:3-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

4.1:101      Model Rule Comparison

The Debevoise Committee recommended adoption of ABA Model Rule 4.1 verbatim. Soon after the issuance of the Debevoise Committee Report, however, the ABA amended its Rule 4.1 to clarify that disclosure under the rule is "subject to the obligations created by Rule 1.6." ABA Model Rules of Professional Conduct Rule 4.1 comment (1983). The 1983 version of Model Rule 4.1, which remains in effect, provided that a lawyer shall not knowingly "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, unless disclosure is prohibited by Rule 1.6." ABA Model Rules of Professional Conduct Rule 4.1(b) (1989).

Despite the change to Model Rule 4.1, the New Jersey Supreme Court accepted the Debevoise Committee's recommendation of the prior version of the rule. See Rules of Professional Conduct, Comment to RPC 4.1, 114 N.J.L.J., July 19, 1984, supp. at 10. The explanatory comment that accompanied the adoption of RPC 4.1 provided as follows:

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.

Id. (emphasis added). The basis for the comment's assertion that the application of the rule is limited to situations in which the lawyer is being questioned by a third party is unclear. The language of the rule itself contains no such limitation.

Unlike RPC 3.3, RPC 4.1 is not limited in application to matters before a tribunal. Instead, the rule applies whenever an attorney is communicating on behalf of a client to a "third person." Thus, for example, the attorney cannot silently assist a client in closing a transaction when he knows that his client is defrauding the other party to the deal.

On the other hand, arguably "puffing" by the attorney to advance his client's position, an activity involving statements generally understood not to be fact-based, is generally beyond the reach of this rule. See ABA Model Rules of Professional Conduct Rule 4.1 comment (1989).

As to the definition of "third person," the rule no doubt prohibits intentional misstatements to opposing counsel about facts or law relevant to the issue in controversy. In such situations, although the statement was directed to counsel, the "third person" for purposes of this rule would be the other party.

There are situations, however, in which the other party's counsel will be personally injured by the dishonesty. Dishonesty about procedural matters, for example, may ultimately injure the other attorney and not the other party. See Malewich v. Zacharias, 196 N.J. Super. 372 (App. Div. 1984), where an attorney represented to his adversary that a trial date would be changed and that he would notify the adversary if it was not. The date was not changed, but the attorney did not notify the adversary. Instead, the attorney allowed the matter to be heard without the presence of the adversary. A judgment against the adversary's client was entered, and that client brought a malpractice claim against the adversary. The adversary then lodged a third party claim against the attorney who had misled him. The court found that there was normally no duty owed by one attorney to another. However, it also found that

[a]n adversary might reasonably rely upon representations made to him, and thus a duty to the adversary can arise. A breach of that duty can render the attorney liable to such an adversary for all or part of a claim advanced by the adversary's client in a malpractice action.

Id. at 377.

4.1:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

4.1:200   Truthfulness in Out-of-Court Statements

Primary New Jersey References: NJ Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary: ABA/BNA 71:201, ALI-LGL 157
NJ Commentary:

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

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

Primary New Jersey References: NJ Rule 4.1(b)
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA 71:201, ALI-LGL 117A, 151, Wolfram 12.6, 13.3
NJ Commentary:

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

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:
NJ Commentary:

4.2:101      Model Rule Comparison

The Debevoise Committee recommended the ABA Model Rule version of Rule 4.2 for adoption without discussion, noting only that it was substantially identical to DR 7-104(A)(1). Debevoise Committee Report, 112 N.J.L.J., July 28, 1983, supp. at 23. It was adopted by the New Jersey Supreme Court also without discussion. See Comment to RPC 4.2, 114 N.J.L.J., July 19, 1984. The rule was amended effective September 1, 1996, primarily to add language clarifying who was a "represented party" in matters involving corporate entities engaged in litigation. Because it is not always clear whether a person is represented by counsel, particularly in the organizational setting, language was added in the 1996 amendment to require no more than the exercise of "reasonable diligence" in making the determination of whether a "person" is or is not represented. The amendment also added language permitting contact for the purpose of finding out if a person is represented. See Notice to the Bar, 145 N.J.L.J. 318 (July 15, 1996).

4.2:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

4.2:200   Communication with a Represented Person

Primary New Jersey References: NJ Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA 71:301, ALI-LGL 158-162, Wolfram 11.6.2
NJ Commentary:

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

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

RPC 4.2 precludes a lawyer engaged in a matter adverse to an organization from communicating with "members of [the] organization's litigation control group as defined by RPC 1.13." RPC 1.13, after stating the general rule of "representation" in the organizational context, provides:

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.

RPC 1.13(a). This language was added in September of 1996. Note that the use of the phrase "litigation control group" was not intended to limit the rules' application to litigated matters. The Committee that drafted the amendments to RPCs 4.2, 4.3 and 1.13 stated that "to avoid any ambiguity ... the term 'matter' has been defined as a 'matter whether or not in litigation.'" Notice to the Bar, Report of Special Committee on RPC 4.2, 139 N.J.L.J. 1193, 1196 (Mar. 20, 1995).

The Committee also considered but rejected per se application of the "no communication" rules to former members of an organization's litigation control group. See Notice to the Bar, Supplemental Report of Special Committee on RPC 4.2, 145 N.J.L.J. 318 (July 15, 1996). Instead, RPC 1.13(a) presumes that former control group employees are represented by the organization's current counsel, but those former employees are free to disavow that representation at any time. Thus, an attorney communicating with a former employee solely to resolve the question of representation "may inquire as to whether the former employee disavows organizational representation or not." Supplemental Report, supra. See Section 32:1-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

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

4.2:230      Communications "Authorized by Law" -- Other

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

4.2:240      Communication with a Represented Government Agency or Officer

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

4.2:250      Communication with a Confidential Agent of Non-Client

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

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:
NJ Commentary:

4.3:101      Model Rule Comparison

ABA Model Rule 4.3 was recommended by the Debevoise Committee for adoption with no discussion. Debevoise Committee Report, 112 N.J.L.J., July 28, 1983, supp. at 23. The Debevoise Committee characterized RPC 4.3 as requiring an attorney in dealing with an unrepresented person on behalf of a client to make reasonable efforts to make clear the lawyer's role, that is, that the lawyer is not a disinterested authority. The Comment notes that under some circumstances it may be sufficient to suggest that the unrepresented person retain counsel.

The New Jersey Supreme Court adopted the rule as recommended, emphasizing the Committee's point that in some circumstances it may be sufficient merely to suggest that the unrepresented person retain counsel. See Comment to RPC 4.3, 114 N.J.L.J., July 19, 1984. Effective September 1, 1996, however, in response to controversy that had arisen over communication by lawyers with employees of corporations, the rule was substantially amended, adding the last sentence dealing with corporate employees and the employees of organizations.

4.3:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

4.3:200   Dealing with Unrepresented Person

Primary New Jersey References: NJ Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA 71:501, ALI-LGL 163, Wolfram 11.6.3
NJ Commentary: Section 32:2-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 4.3 does not deal only with unrepresented persons who are parties to an action, but with all unrepresented persons with whom a lawyer deals on behalf of a client. The rule assumes that the lawyer knows whether the person is represented, so that inquiry on that subject is an obvious prerequisite, made explicit by the 1996 amendments to RPC 4.3 only insofar as the lawyer is dealing with organizational employees, but implicit in all other situations.

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:
NJ Commentary:

4.4:101      Model Rule Comparison

RPC 4.4 is identical to the ABA Model Rule 4.4.

4.4:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

4.4:200   Disregard of Rights or Interests of Third Persons

Primary New Jersey References: NJ Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA 71:101, ALI-LGL 163, 166, 167, Wolfram 12.4.4
NJ Commentary:

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

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

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

4.4:220      Threatening Prosecution [see 8.4:900]

RPC 4.4 has been interpreted broadly. See Advisory Comm. Op. 551 (Jan. 24, 1985) and Advisory Comm. Op. 626 (Apr. 20, 1989), suggesting that RPC 4.4 applies when an attorney asserts a claim on behalf of a client and mentions the possibility of criminal liability. See Section 29:4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).