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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

V. LAW FIRMS AND ASSOCIATIONS

5.1   Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer

5.1:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 5.1
• Background References: ABA Model Rule 5.1, Other Jurisdictions
• Commentary:
• NJ Commentary:

5.1:101      Model Rule Comparison

New Jersey's RPC 5.1 will not impose discipline on an attorney merely because he or she is the partner of an attorney charged with the disciplinary violation, unless the attorney had direct supervisory authority over the attorney charged with the disciplinary violation. In this respect, New Jersey's rules depart dramatically from the ABA Model Rule 5.1. See Debevoise Committee Report, 112 N.J.L.J., July 28, 1983; N.J. Supreme Court Comments 5.1. Compare Model Rule 5.1(c)(2) (imputing to lawyer responsibility for ethical violation by "partner in the law firm in which the other lawyer practices").

New Jersey’s RPC 5.1(a), unlike the Model Rule, includes professional corporations and other organizations within its reach. It is presumed that as the Model Rule Comments suggest, New Jersey’s RPC 5.1(a) imposes responsibility generally on the attorneys with "supervisory authority," partners in a partnership, shareholders in a professional corporation, general counsel in a corporation, supervisors of a government law department, and those with intermediate supervisory authority.

5.1:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

5.1:200   Duty of Partners to Monitor Compliance with Professional Rules

• Primary New Jersey References: NJ Rule 5.1(a)
• Background References: ABA Model Rule 5.1(a), Other Jurisdictions
• Commentary: ABA/BNA § 91:201, ALI-LGL § 12, Wolfram § 16.2
• NJ Commentary: Section 41:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 5.1(a) requires that "reasonable efforts" be made by each "law firm" and "organization authorized by the Court Rules to practice law" to ensure ethical practices at the firm. The measure of compliance with this provision is not whether the firm's lawyers act in an ethical manner, but whether the firm "undertake[s] measures giving reasonable assurance that all lawyers conform" to the RPCs. Rule 5.1(a) requires that a firm should (1) provide reasonable supervision of subordinate attorneys; (2) educate all attorneys on the ethical issues likely to be encountered in the firm's practice; and (3) establish means by which the ethical concerns that arise in the firm's practice can be considered and resolved.

5.1:300   Monitoring Duty of Supervising Lawyer

• Primary New Jersey References: NJ Rule 5.1(b)
• Background References: ABA Model Rule 5.1(b), Other Jurisdictions
• Commentary: ABA/BNA § 91:201, ALI-LGL § 12, Wolfram § 16.2
• NJ Commentary: Section 41:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 5.1(b) imposes a duty on any attorney "having direct supervisory authority" over another lawyer to "make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct." Liability is not imposed under this rule for the underlying ethical wrongdoing of the subordinate, but rather for the separate ethical violation of failing to adequately supervise the subordinate. See Matter of Yacavino, 100 N.J. 50, 55 (1985), where the New Jersey Supreme Court has made clear that the "attitude of leaving new lawyers to `sink or swim' will not be tolerated." See In Matter of Macias, __ N.J. __, (1999), 1999 WL 517201 (attorney suspended for 3 months for failing to supervise associate properly).

5.1:400   Failing to Rectify the Misconduct of a Subordinate Lawyer

• Primary New Jersey References: NJ Rule 5.1(c)
• Background References: ABA Model Rule 5.1(c), Other Jurisdictions
• Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
• NJ Commentary:

RPC 5.1(c)(2) imposes direct liability on any supervising attorney who becomes aware of a subordinate's unethical conduct and then fails to act "at a time when its consequences can be avoided or mitigated."

5.1:500   Vicarious Liability of Partners

• Primary New Jersey References: NJ Rule 5.1
• Background References: ABA Model Rule 5.1, Other Jurisdictions
• Commentary: ABA/BNA § 91:201, ALI-LGL §§ 8, 10
• NJ Commentary: Section 41:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 5.1(c) as adopted in New Jersey does not extend vicarious liability to an attorney for the wrongdoing of his or her partner per se. It does, however, impose vicarious or imputed liability on an attorney in two instances. First, responsibility will attach if the attorney "orders or ratifies" the action that is unethical. Second, if the attorney charged with directly supervising an attorney knows of the subordinate's wrongdoing and fails to act even though there was still time to "avoid" or "mitigate" the consequences.

5.2   Rule 5.2 Responsibilities of a Subordinate Lawyer

5.2:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 5.2
• Background References: ABA Model Rule 5.2, Other Jurisdictions
• Commentary:
• NJ Commentary:

5.2:101      Model Rule Comparison

The New Jersey Supreme Court adopted the ABA Model Rule 5.2 as RPC 5.2.

5.2:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

5.2:200   Independent Responsibility of a Subordinate Lawyer

• Primary New Jersey References: NJ Rule 5.2(a)
• Background References: ABA Model Rule 5.2(a), Other Jurisdictions
• Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
• NJ Commentary: Section 41:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

Pursuant to RPC 5.2, it is no defense to an ethical violation that it was done at the direction of a superior. Moreover, it is no defense that the attorney believed it was the responsibility of the superior to act in accordance with the rules. See Matter of Kasson, 141 N.J. 83 (1995) (attorney who relied on employer to maintain a bona fide office was not insulated from discipline for failing to maintain such office).

5.2:300   Reliance on a Supervisor's Resolution of Arguable Ethical Issues

• Primary New Jersey References: NJ Rule 5.2(b)
• Background References: ABA Model Rule 5.2(b), Other Jurisdictions
• Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
• NJ Commentary: Section 41:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 5.2(b) provides a safe harbor for the subordinate attorney if the subordinate "acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty."

5.3   Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

5.3:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 5.3
• Background References: ABA Model Rule 5.3, Other Jurisdictions
• Commentary:
• NJ Commentary:

5.3:101      Model Rule Comparison

The New Jersey Supreme Court added RPC 5.3(c)(3) to the ABA Model Rule 5.3. This subsection may subject lawyers to discipline and to monetary liability for failing to make a reasonable investigation of past instances of conduct by nonlawyer assistant that are incompatible with the professional obligations of the attorney. See Comment to the Rules of Professional Conduct, Comment to RPC 5.3, 114 N.J.L.J., July 19, 1984.

5.3:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

5.3:200   Duty to Establish Safeguards

• Primary New Jersey References: NJ Rule 5.3(a)
• Background References: ABA Model Rule 5.3(a), Other Jurisdictions
• Commentary: ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3
• NJ Commentary: Section 40:11-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

To satisfy the obligations of RPC 5.3(a), a lawyer must ensure that his or her employees are aware of and abide by the standards set forth in the RPCs. See In re Environ. Ins., 252 N.J. Super. 510, 515 (Law Div. 1991). A lawyer may not blindly delegate his or her professional responsibilities to a nonlawyer assistant. See Matter of Stransky, 130 N.J. 38, 44 (1992). See In re Opinion No. 24, 128 N.J. 114, 135 (1992), where the New Jersey Supreme Court stated that RPC 5.3 requires that a lawyer "ensure that the legal assistant is informed of and abides by the provisions of the Rules of Professional Conduct."

5.3:300   Duty to Control Nonlawyer Assistants

• Primary New Jersey References: NJ Rule 5.3(b)
• Background References: ABA Model Rule 5.3(b), Other Jurisdictions
• Commentary: ABA/BNA § 21:8601, ALI-LGL §§ 4, 5, Wolfram § 16.3
• NJ Commentary:

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

5.3:400   Responsibility for Misconduct of Nonlawyer Assistants

• Primary New Jersey References: NJ Rule 5.3(c)
• Background References: ABA Model Rule 5.3(c), Other Jurisdictions
• Commentary: ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3
• NJ Commentary: Section 41:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

Pursuant to New Jersey’s RPC 5.3(c)(3) a lawyer may be subject to discipline and to monetary liability for negligently employing a nonlawyer assistant. See Comment to the Rules of Professional Conduct, Comment to RPC 5.3, 114 N.J.L.J., July 19, 1984, supp. at 11. In such cases, the lawyer is not vicariously liable for the nonlawyer's misconduct, but rather is held to answer for his or her own misconduct in failing to supervise the nonlawyer. See also generally In re Opinion No. 24, 128 N.J. 114 (1992), permitting paralegals to operate independently in New Jersey since each matter handled by the paralegal would be under the direct supervision of an attorney pursuant to RPC 5.3. And see In re Environ. Ins., 252 N.J. Super. 510 (Law Div. 1991) (noting that "investigators are considered to be engaged by the attorney and it is incumbent upon the attorney to inform and enforce the standards of professional conduct as set forth in the RPC.) Under RPC 5.3(c), an attorney may be held responsible for the nonlawyer's misconduct if (1) the misconduct is ordered or ratified by the lawyer, (2) the lawyer knows of the misconduct but fails to take action to remediate it "at a time when its consequences can be avoided or mitigated," or (3) the lawyer is guilty of negligent hiring practices that failed to disclose past instances of misconduct by the nonlawyer. The New Jersey Supreme Court's comments on the rule note that the provision borrows from the "negligent hiring" doctrine of Di Cosala v. Kay, 91 N.J. 159 (1982). It requires the firm or attorney hiring the paralegal or other nonlegal assistant to make a reasonable inquiry into the assistant's background to ensure that the prospective assistant can be entrusted with the position.

5.4   Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]

5.4:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 5.4
• Background References: ABA Model Rule 5.4, Other Jurisdictions
• Commentary:
• NJ Commentary:

5.4:101      Model Rule Comparison

The New Jersey Supreme Court adopted ABA Model Rule 5.4 and added an introductory clause permitting exceptions as otherwise provided by the Court Rules. See Comment to RPC 5.4, 114 N.J.L.J., July 19, 1984.

5.4:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

5.4:200   Sharing Fees with a Nonlawyer

• Primary New Jersey References: NJ Rule 5.4(a)
• Background References: ABA Model Rule 5.4(a), Other Jurisdictions
• Commentary: ABA/BNA § 41:801, ALI-LGL § 60, Wolfram §§ 16.4, 16.5
• NJ Commentary: Section 36:3-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

The sharing of fees between an attorney or firm and non-attorneys is prohibited. RPC 5.4(a) unambiguously states that "a lawyer or law firm shall not share legal fees with a nonlawyer." This rule carries forward traditional limitations on sharing fees, enacted to protect the lawyer's professional independence of judgment and to ensure that the total fee paid by a client is not unreasonably high.

The appearance of fee-sharing with non-attorneys must be avoided. See N.J. Advisory Comm. on Professional Ethics Op. 669 (Nov. 2, 1992). Note that when a fee is paid by a third party to an attorney for work done for a client, or the client is reimbursed by a third party for fees incurred, the client must not retain any portion of the fee. It must be clear that the legal fees paid "in whole or in part for the client's legal expenses [are those fees] actually incurred in the specific matter for which they are paid." See Advisory Comm. Op. 93 (Apr. 21, 1966). See also Advisory Comm. Op. 669, supra.

Non-attorneys are prohibited from sharing in legal fees by N.J.S. 2C:21-22, which deems the unauthorized practice of law a disorderly persons offense and the receipt of a "benefit" from such practice as a crime of the fourth degree.

5.4:300   Forming a Partnership with Nonlawyers

• Primary New Jersey References: NJ Rule 5.4(b)
• Background References: ABA Model Rule 5.4(b), Other Jurisdictions
• Commentary: ABA/BNA § 91:401, ALI-LGL § 60, Wolfram §§ 16.4, 16.5
• NJ Commentary:

RPC 5.4(b) provides that "[a] lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.”

5.4:400   Third Party Interference with a Lawyer's Professional Judgment

• Primary New Jersey References: NJ Rule 5.4(c)
• Background References: ABA Model Rule 5.4(c), Other Jurisdictions
• Commentary: ABA/BNA § 51:901, ALI-LGL § 60, Wolfram § 8.8
• NJ Commentary:

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

5.4:500   Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations

• Primary New Jersey References: NJ Rule 5.4(d)
• Background References: ABA Model Rule 5.4(d), Other Jurisdictions
• Commentary: ABA/BNA § 91:401, ALI-LGL § 60, Wolfram § 16.4, 16.5
• NJ Commentary: Section 36:3-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 5.4(d) forbids corporate practice or practice in the form of an association for profit if a nonlawyer owns any interest, is a corporate director or officer, or has the right to direct or control the professional judgment of a lawyer. This subsection imposes restrictions greater than those imposed by the statute. These restrictions do not apply to not-for-profit corporations (or associations) organized for the practice of law. Nor does the Professional Service Corporation Act apply to not-for-profit entities. Such organizations are, however, governed by the general RPC 5.4 proscription against sharing fees with non-attorneys and, if they take the corporate form, by Title 15A. See N.J.S. 15A:2-1(a). See also New Jersey Court R. 1:21-1(d), authorizing nonprofit legal services organizations to practice law.

5.4:510      Group Legal Services

RPC 5.4(c) prohibits a lawyer from allowing a person who pays for legal services rendered to another to "direct or regulate the lawyer's professional judgment in rendering such legal services." N.J. Advisory Comm. on Professional Ethics Op. 555 (May 16, 1985), concerned the propriety of attorney participation in a plan promoted by a profit-making organization offering discounted professional services, including attorney services, to the public. The organization solicited the public through direct marketing, offering membership for a fee that entitled members to the discounted services of professionals on the organization's roster. The committee concluded that an attorney's participation in this service would be improper under RPC 7.2(c) because it was the offering of something of value (i.e. the discounted legal fee) to an organization recommending the lawyer's services when the organization did not fall into the exception in RPC 7.2(c)(3) for not-for-profit lawyer referral or other legal service organizations. The Committee indicated that the only referral or other service organizations meant by the (c)(3) exception were those listed in RPC 7.3(e). See Section 36:5-5, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

5.4:520      Nonprofit Organizations Delivering Legal Services

New Jersey attorneys may practice in this state as employees of nonprofit legal services organizations, public interest law firms, and other federally tax exempt organizations that provide legal services to a defined and limited class of clients, such as a labor union. See New Jersey Court R. 1:21-1(d). The work performed by these attorneys must serve the intended beneficiaries of the organization, and the attorney must not permit his or her relationship with the individual client to be subject to interference, control or direction by any of the organization's directors or employees, except for a supervising attorney who is a member of the New Jersey bar. In addition, the attorney responsible for a matter must sign all papers prepared or submitted on behalf of the organization in a particular case. Id. See In re Education Law Center, Inc., 86 N.J. 124 (1981) and In re 1115 Legal Service Care, 110 N.J. 344 (1988). See Section 5:10, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

5.5   Rule 5.5 Unauthorized Practice of Law

5.5:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 5.5
• Background References: ABA Model Rule 5.5, Other Jurisdictions
• Commentary:
• NJ Commentary:

5.5:101      Model Rule Comparison

The New Jersey Supreme Court adopted Model Rule 5.5 verbatim.

5.5:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

5.5:200   Engaging in Unauthorized Practice

• Primary New Jersey References: NJ Rule 5.5(a)
• Background References: ABA Model Rule 5.5(a), Other Jurisdictions
• Commentary: ABA/BNA § 21:8001, ALI-LGL §§ 3, 4, Wolfram § 15.1
• NJ Commentary: Section 39:2-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

The New Jersey Constitution provides that "[t]he Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted." N.J. Const. art. 6, Sec. 2, para. 3. Clearly, this provision gives the New Jersey Supreme Court the authority to impose conditions on the practice of law by lawyers in New Jersey. These prerequisites include holding a license to practice, complying with a skills and methods course requirement, and maintaining a bona fide office in this state. An attorney who practices in New Jersey without satisfying all of these conditions is in violation of RPC 5.5(a). See Matter of Young, 144 N.J. 165 (1996); and Matter of Brewington, 143 N.J. 3 (1995).

Practicing law while disbarred, suspended, or otherwise ineligible to practice also constitutes a violation of RPC 5.5(a). See Matter of Wurth, 131 N.J. 453 (1993); Matter of Grabler, 127 N.J. 38, 39 (1992).

5.5:210      Practice of Law by Nonlawyers

The New Jersey Constitution provides that "[t]he Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted." N.J. Const. art. 6, §2, para. 3. The New Jersey Supreme Court has interpreted this paragraph as giving it "the power to punish for contempt those engaged in the unauthorized practice of law." N.J. State Bar Ass'n v. Northern N.J. Mortgage Associates, 22 N.J. 184, 193 (1956). In an earlier case, In re Baker, 8 N.J. 321, 334 (1951), the New Jersey Supreme Court reasoned that its jurisdiction over the admission and discipline of members of the bar would be meaningless if nonlawyers were permitted to practice law "with impunity." Consequently, the New Jersey Supreme Court concluded that the power to prevent laymen from practicing law was a necessary adjunct to its constitutionally granted authority to establish qualifications for lawyers. See id.

The New Jersey Legislature has created an additional avenue for the prevention of the unauthorized practice of law, which coexists with the judiciary's power to punish such conduct in contempt proceedings, to enjoin and to refuse compensation.

The relevant current statute, N.J.S. 2C:21-22, treats unauthorized practice as either a disorderly persons offense or a fourth degree crime:

a. A person is guilty of a disorderly persons offense if the person knowingly engages in the unauthorized practice of law.

b. A person is guilty of a crime of the fourth degree if the person knowingly engages in the unauthorized practice of law and:

(1) Creates or reinforces a false impression that the person is licensed to engage in the practice of law; or

(2) Derives a benefit; or

(3) In fact causes injury to another.

c. For the purposes of this section, the phrase "in fact" indicates strict liability.

Id. See Sections 39:2-2 and 39:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

5.5:220      Admission and Residency Requirements for Out-of-State Lawyers

Pursuant to New Jersey Court R. 1:21-1(a), an attorney cannot practice law in New Jersey unless the attorney "maintains a bona fide office for the practice of law in this State." An attorney who practices law in New Jersey, but fails to maintain a bona fide office here, is engaging in the unauthorized practice of law in violation of RPC 5.5(a). In 1996, the New Jersey Supreme Court revised New Jersey Court R. 1:21-1(a), which now provides:

A bona fide office is more than a mail drop, a summer home that is unattended during a substantial portion of the year, an answering service unrelated to a place where business is conducted or a place where an on-site agent of the attorney receives and transmits messages only. For the purpose of this section, a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney's behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time.

July 28, 1996 amendment to New Jersey Court R. 1:21-1(a), effective September 1, 1996.

The bona fide office requirement was challenged on constitutional grounds by a New York lawyer, joined by amicus Pennsylvania lawyers, in Tolchin v. Supreme Court of New Jersey, 111 F.3d 1099 (3rd Cir. 1997), cert. denied, 66 U.S.L.W. (Nov. 10, 1997). The Third Circuit Court of Appeals rejected claims that the 1996 version of New Jersey Court R. 1:21-1 violated the Commerce Clause, the Privileges and Immunities Clause and the Equal Protection guarantee of the Fourteenth Amendment and upheld the rule as rationally related to a valid state interest: that of "ensuring that attorneys admitted to practice in New Jersey are available to New Jersey courts." Id. at 1113.

Note that the bona fide office requirement represents the one substantive difference between the requirements for admission to New Jersey's bar and to the bar of the United States District Court for the District of New Jersey. The District Court deleted its requirement for a bona fide office in a local rule amendment in 1988. Theoretically, then, any attorney in good standing in the State of New Jersey may be admitted to the federal bar and, thereafter, need not maintain a bona fide office to remain in good standing with the federal bar. However, the fact that there is no express local rule requiring a bona fide office for New Jersey's federal practitioners may not provide them with any defense to a disciplinary action by the New Jersey Supreme Court to a charge of practicing law without maintaining a bona fide office in the state. See Kelley Drye & Warren v. Murray Industries, Inc., 623 F. Supp. 522, 525-526 (D.N.J. 1985), which expressly held that the right to practice in New Jersey that is conveyed by plenary state licensure imposes a concomitant obligation to abide by state court rules governing attorney conduct even when the attorney practices in federal court.

Discipline for violation of the bona fide office rule is initially considered by the Committee on Attorney Advertising. See Matter of Schutzman, 145 N.J. 568 (1996); Matter of Brewington, 143 N.J. 3 (1995). When the sole violation is the lack of a bona fide office, an admonition is the common discipline. See Matter of Young, 144 N.J. 165 (1996); Matter of Beck, 143 N.J. 308 (1996). When the attorney also fails to maintain required trust accounts in New Jersey banks, however, a reprimand is more common. See Matter of Gajewski, 139 N.J. 389 (1995). See Section 4:5, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

5.5:230      Pro Hac Vice Admission [see also 8.1:240]

Other than a plenary New Jersey licensee, an attorney may lawfully practice in New Jersey only if admitted pro hac vice pursuant to New Jersey Court R. 1:21-2. This rule provides that an out-of-state attorney "may, at the discretion of the court in which any matter is pending, be permitted, pro hac vice, to speak in such matter in the same manner as an attorney of this state who is domiciled in and maintains a bona fide office for the practice of law in this state." New Jersey Court R. 1:21-2(a). Note that pro hac vice admission is also available to a New Jersey attorney who does not maintain a bona fide office in this state.

The lawyer seeking pro hac vice admission must be in good standing in his or her jurisdiction of admission, and must apply for admission upon motion to all parties in the case. New Jersey Court R. 1:21-2(a). In both civil and criminal matters, the motion must be supported by the attorney's affidavit or certification stating that:

(i) the attorney is a member in good standing of the bar of the highest court of the state in which the attorney is domiciled or principally practices law;

(ii) the attorney is associated in the matter with New Jersey counsel of record qualified to practice pursuant to New Jersey Court R. 1:21-1: and

(iii) the client has requested to be represented by said attorney.

New Jersey Court R. 1:21-2(a)(1). In addition, in civil cases only, the affidavit must assert that one of the "good cause" scenarios contained in New Jersey Court R. 1:21-2(a)(3) exists.

In order to be admitted pro hac vice, an out-of-state attorney (or a New Jersey attorney who lacks a bona fide office for the practice of law) must be "associated in the matter" with a New Jersey lawyer who is qualified to practice in this state. New Jersey Court R. 1:21-2(a)(1)(ii). That lawyer, the "New Jersey counsel of record," must sign all briefs, pleadings, and other papers filed in connection with the case, and bears ultimate responsibility for the contents of the papers, the handling of the matter, and the conduct of the attorney admitted pro hac vice. See New Jersey Court R. 1:21-2(b)(4). The court may impose additional obligations on the New Jersey counsel of record, if it deems them necessary. Id.

By virtue of court rule and RPC 8.1, any attorney admitted for a limited purpose or in connection with a particular proceeding also submits to the disciplinary authority of the New Jersey Supreme Court with regard to his or her conduct in that matter. See Matter of Rubin, 144 N.J. 161 (1996) (New York attorney barred from further pro hac vice admissions in New Jersey for three years for violations of RPC during a pro hac vice admission before the Office of Administrative Law); In re Bailey, 57 N.J. 451 (1971) (Massachusetts criminal defense attorney who attempted to try case in the newspapers barred from pro hac vice admission for a period of one year). See Sections 4:7-1 and 4:7-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

5.5:240      Performing Legal Services in Another Jurisdiction

In the case of a New Jersey licensee who wrongfully practices elsewhere, the attorney is subject to discipline by New Jersey's Supreme Court for violation of RPC 5.5(a), which prohibits unauthorized practice in another jurisdiction. In addition, the forum in which the attorney practiced without being admitted may prosecute for unauthorized practice of law or may subject him or her to the contempt powers of the court, just as a lay person would be subject to sanction for unlawful practice in the jurisdiction. See Section 41:2-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

5.5:300   Assisting in the Unauthorized Practice of Law

• Primary New Jersey References: NJ Rule 5.5(b)
• Background References: ABA Model Rule 5.5(b), Other Jurisdictions
• Commentary: ABA/BNA § 21:8201, ALI-LGL § 4, Wolfram § 15.1
• NJ Commentary: Section 40:11-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 5.5(b) prohibits an attorney from assisting a nonattorney in the unauthorized practice of law. The New Jersey Supreme Court has stated that "paralegals who are supervised by attorneys do not engage in the unauthorized practice of law." In re Opinion No. 24, 128 N.J. 114, 123 (1992). Although the New Jersey Supreme Court conceded that many of the day-to-day tasks performed by paralegals would ordinarily constitute the practice of law, it concluded that this is not necessarily the relevant inquiry. Rather, the New Jersey Supreme Court focused on the degree of supervision provided by the attorney for whom the paralegal is working, reasoning that "[s]afeguards against the unauthorized practice of law exist through that supervision." Id. at 127. Thus, in general, only a paralegal's unsupervised work will constitute the unauthorized practice of law. Id. at 130.

5.6   Rule 5.6 Restrictions on Right to Practice

5.6:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 5.6
• Background References: ABA Model Rule 5.6, Other Jurisdictions
• Commentary:
• NJ Commentary:

5.6:101      Model Rule Comparison

The Debevoise Committee recommended adoption of the ABA Model Rule, then numbered 5.5, which prohibited an attorney from participating in the offering or making of a partnership or employment agreement restricting the right of a lawyer to practice after termination of that relationship (except for an agreement concerning benefits upon retirement). Debevoise Committee Report, 112 N.J.L.J., July 28, 1983. It was adopted by the New Jersey Supreme Court as recommended, its numerical designation changed to RPC 5.6. Comment to RPC 5.5 and 5.6, 114 N.J.L.J. Special Supplement, July 19, 1984.

5.6:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

5.6:200   Restrictions on Lawyers Leaving a Firm

• Primary New Jersey References: NJ Rule 5.6(a)
• Background References: ABA Model Rule 5.6(a), Other Jurisdictions
• Commentary: ABA/BNA § 51:1201 ALI-LGL § 10
• NJ Commentary: Section 36:4-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 5.6(a) provides that a lawyer shall not participate in offering or making 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 retiring. This rule has been interpreted to prevent partnership agreements and attorney employment agreements from conditioning the sharing of fees on an attorney's undertaking to refrain from competition with the firm after leaving it. See Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10 (1992). See also Heher v. Smith, Stratton, Wise, 143 N.J. 448 (1996); Weiss v. Carpenter, Bennett & Morrissey, 143 N.J. 420 (1996).

5.6:300   Settlements Restricting a Lawyer's Future Practice

• Primary New Jersey References: NJ Rule 5.6(b)
• Background References: ABA Model Rule 5.6(b), Other Jurisdictions
• Commentary: ABA/BNA § 51:1201, ALI-LGL § 10, Wolfram § 16.2.3
• NJ Commentary:

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5.7   Rule 5.7 Responsibilities Regarding Law-Related Services

5.7:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 5.7
• Background References: ABA Model Rule 5.7, Other Jurisdictions
• Commentary:
• NJ Commentary:

5.7:101      Model Rule Comparison

There is no direct counterpart in the New Jersey RPCs.

5.7:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

5.7:200   Applicability of Ethics Rules to Ancillary Business Activities

• Primary New Jersey References: NJ Rule 5.7
• Background References: ABA Model Rule 5.7, Other Jurisdictions
• Commentary: ABA/BNA § 101:2101
• NJ Commentary:

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