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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 8.1
• Background References: ABA Model Rule 8.1, Other Jurisdictions
• Commentary:
• NJ Commentary: Section 41:2-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

Under RPC 8.1, attorneys may be disciplined or even have their admissions revoked for pre-admission misconduct. See Matter of Gouiran, 130 N.J. 96 (1992); Matter of Kotok, 108 N.J. 314 (1987); Matter of Scavone, 106 N.J. 542 (1987).

8.1:101      Model Rule Comparison

The New Jersey Supreme Court adopted the ABA Model Rule 8.1. Rules of Professional Conduct, Comment to RPC 8.1, 114 N.J.L.J., July 19, 1984.

8.1:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

8.1:200   Bar Admission

• Primary New Jersey References: NJ Rule 8.1
• Background References: ABA Model Rule 8.1, Other Jurisdictions
• Commentary: ABA/BNA §§ 21:101, 10l:1, ALI-LGL § 2, Wolfram §§ 15.2, 15.3
• NJ Commentary:

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

8.1:210      Bar Admission Agency

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

8.1:220      Bar Admission Requirements

An individual must meet both objective and subjective standards to obtain a plenary license to practice law, as set forth in New Jersey Court R. 1:27. These requirements include: (1) passing the New Jersey bar examination, (2) certification of good character, (3) passing the Multistate Professional Responsibility Examination or an approved law school course on ethics; and (4) taking of the Oath of Admission and signing of the attorney's roll. Failure to fulfill any of these obligations renders an individual ineligible to practice law in New Jersey. See Section 4:2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

8.1:230      Admission on Motion

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

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

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

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

• Primary New Jersey References: NJ Rule 8.1(a)
• Background References: ABA Model Rule 8.1(a), Other Jurisdictions
• Commentary: ABA/BNA §§ 21:301, 101:201, Wolfram § 15.3.1
• NJ Commentary: Section 44:10, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

All attorneys are obligated by rule and caselaw to cooperate fully with ethics investigations. This obligation is sufficiently important that the Disciplinary Review Board has issued a separate Notice to the Bar dated August 4, 1997 reminding attorneys that "[c]ooperation at all levels of the disciplinary process is expected of every attorney admitted to practice in New Jersey" and that "[d]iscipline may result based solely on a violation of RPC 8.1(b)." 6 NJL 2080 (August 25, 1997). Failure to cooperate by itself constitutes grounds for immediate temporary suspension. See Matter of De Marco, 143 N.J. 562 (1996); Matter of Foushee, 143 N.J. 409 (1996); Matter of Kanter, 142 N.J. 470 (1995); Matter of Thomas, 140 N.J. 323 (1995).

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

• Primary New Jersey References: NJ Rule 8.1(b)
• Background References: ABA Model Rule 8.1(b), Other Jurisdictions
• Commentary:
• NJ Commentary:

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

8.1:410      Protecting Client Confidential Information

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

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

• Primary New Jersey References: NJ Rule 8.1(b)
• Background References: ABA Model Rule 8.1(b), Other Jurisdictions
• Commentary:
• NJ Commentary:

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

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 8.2
• Background References: ABA Model Rule 8.2, Other Jurisdictions
• Commentary:
• NJ Commentary:

8.2:101      Model Rule Comparison

The New Jersey Supreme Court adopted the ABA Model Rule 8.2 with one change. In paragraph (b), RPC 8.2 provides that “ A lawyer who has been confirmed for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.” The Model Rule uses the phrase “who is a candidate for judicial office” rather that the “has been confirmed” language of RPC 8.2. Rules of Professional Conduct, Comment to RPC 8.2, 114 N.J.L.J., July 19, 1984.

8.2:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

8.2:200   False Statements About Judges or Other Legal Officials

• Primary New Jersey References: NJ Rule 8.2(a)
• Background References: ABA Model Rule 8.2(a), Other Jurisdictions
• Commentary: ABA/BNA § 101:601, ALI-LGL § 174, Wolfram § 11.3.2
• NJ Commentary:

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

8.2:300   Lawyer Candidates for Judicial Office

• Primary New Jersey References: NJ Rule 8.2(b)
• Background References: ABA Model Rule 8.2(b), Other Jurisdictions
• Commentary: ABA/BNA § 101:601, ALI-LGL § 174, Wolfram § 17.2
• NJ Commentary:

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

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 8.3
• Background References: ABA Model Rule 8.3, Other Jurisdictions
• Commentary:
• NJ Commentary:

8.3:101      Model Rule Comparison

The New Jersey Supreme Court adopted the ABA Model Rule 8.3. In the Comment to RPC 8.3, the New Jersey Supreme Court stresses that the adoption of this rule “in no way reduces the present obligation to report such judicial and attorney ethical violations.” Rules of Professional Conduct, Comment to RPC 8.3, 114 N.J.L.J., July 19, 1984.

8.3:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

8.3:200   Mandatory Duty to Report Serious Misconduct

• Primary New Jersey References: NJ Rule 8.3(a)
• Background References: ABA Model Rule 8.3(a), Other Jurisdictions
• Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10
• NJ Commentary:

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

8.3:300   Reporting the Serious Misconduct of a Judge

• Primary New Jersey References: NJ Rule 8.3(b)
• Background References: ABA Model Rule 8.3(b), Other Jurisdictions
• Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10
• NJ Commentary:

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

8.3:400   Exception Protecting Confidential Information

• Primary New Jersey References: NJ Rule 8.3(c)
• Background References: ABA Model Rule 8.3(c), Other Jurisdictions
• Commentary: ABA/BNA § 101:201, ALI-LGL §§ 113-117A, Wolfram § 12.10
• NJ Commentary:

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

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 8.4
• Background References: ABA Model Rule 8.4, Other Jurisdictions
• Commentary:
• NJ Commentary: Section 41:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

The scope of conduct for which discipline can be imposed by the New Jersey Supreme Court is quite broad, ranging from dishonest business dealings unrelated to the practice of law to racial or religious discrimination. RPC 8.4 sets out seven broad categories meriting disciplinary action.

8.4:101      Model Rule Comparison

The New Jersey Supreme Court adopted the ABA Model Rule 8.4. Comment to RPC 8.4, N.J.L.J., July 19, 1984.

8.4:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

8.4:200   Violation of a Rule of Professional Conduct

• Primary New Jersey References: NJ Rule 8.4(a)
• Background References: ABA Model Rule 8.4(a), Other Jurisdictions
• Commentary: ABA/BNA § 101:101, ALI-LGL § 2, Wolfram § 3.3
• NJ Commentary: Section 41:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

The first general category of misconduct for which discipline may be imposed is set out at RPC 8.4(a), which deems it professional misconduct for a lawyer to: "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." Intent to violate a rule is not a prerequisite to a finding of professional misconduct, unless the underlying rule prescribes an intentional or knowing act. Thus, under that provision, attorneys are strictly liable for their failure to comply with those provisions of the RPC that do not require intentional or knowing wrongdoing.

8.4:300   Commission of a Crime

• Primary New Jersey References: NJ Rule 8.4(b)
• Background References: ABA Model Rule 8.4(b), Other Jurisdictions
• Commentary: ABA/BNA § 101:301, ALI-LGL § 8, Wolfram § 3.3.2
• NJ Commentary: Section 41:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

Under RPC 8.4(b), all that is required for discipline is a finding that there was a criminal act. There need not be a conviction or even an indictment for the crime in order for discipline to be imposed. See Matter of Hasbrouck, 140 N.J. 162, 166-167, (1995). Indeed, even an acquittal on criminal charges does not bar the imposition of discipline from the same allegations. Matter of Rigolosi, 107 N.J. 192, 206 (1987); In re Pennica, 36 N.J. 401, 418 (1962). Nor does it matter that the attorney was given immunity from criminal prosecution. In re Tumini, 95 N.J. 18 (1983). Nor does the attorney's admission into a pretrial intervention program bar discipline for the acts giving rise to the underlying charge. Matter of Asbell, 135 N.J. 446 (1994). See also New Jersey Court R. 1:20-13(b)(3) (providing that, although a temporary suspension will be lifted on a reversal of a conviction, disciplinary proceedings will not be terminated).

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

• Primary New Jersey References: NJ Rule 8.4(c)
• Background References: ABA Model Rule 8.4(c), Other Jurisdictions
• Commentary: ABA/BNA § 101:401, ALI-LGL § 2, Wolfram § 3.3.3
• NJ Commentary: Section 41:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 8.4(c) defines professional misconduct to include engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation" when such conduct does not rise to the level of a crime. Though RPC 8.4(c) is broad enough to cover crimes involving such conduct and has been cited for such activities, see Matter of Messinger, 133 N.J. 173 (1993), criminal acts generally are covered by RPC 8.4(b).

The most common ground for RPC 8.4(c) discipline is misrepresentation of the status of a matter to a client. See Matter of Trueger, 140 N.J. 103 (1995); Matter of Gaffney, 138 N.J. 85 (1994); Matter of Foley, 138 N.J. 49 (1994); Matter of Paul, 137 N.J. 103 (1994); Matter of Borden, 121 N.J. 520 (1990); Matter of Cohen, 120 N.J. 304 (1990). Misrepresentation of the work done or the value of work done also merits discipline. See Matter of Ort, 134 N.J. 146 (1993).

False swearing, whether in court papers, in witnessing of affidavits or elsewhere, has often been the basis for discipline of attorneys. See Matter of Kernan, 118 N.J. 361 (1990); Matter of Lunn, 118 N.J. 163 (1990); Matter of Kotok, 108 N.J. 314 (1987); Matter of Yacavino, 100 N.J. 50 (1985); In re Labendz, 95 N.J. 273 (1984). Misstatements in business transactions are also grounds for discipline. See Matter of Youmans, 118 N.J. 622 (1990); Matter of DiLieto, 142 N.J. 492 (1995); Matter of Carney, 138 N.J. 43 (1994); Matter of Schubach, 130 N.J. 93 (1992); Matter of Servance, 102 N.J. 286 (1986).

The rule essentially mandating disbarment for knowing misappropriation cases was announced in the case that is now a shorthand for the rule, In re Wilson, 81 N.J. 451 (1979). Misappropriation of law firm funds by a partner, even if such funds were not client funds, has resulted in the ultimate sanction, disbarment. See In Matter of Greenberg, 155 N.J. 138 (1999); In re Siegel, 133 N.J. 162 (1993).

8.4:500   Conduct Prejudicial to the Administration of Justice

• Primary New Jersey References: NJ Rule 8.4(d)
• Background References: ABA Model Rule 8.4(d), Other Jurisdictions
• Commentary: ABA/BNA § 101:501, ALI-LGL § 2, Wolfram § 3.3.2
• NJ Commentary: Section 41:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 8.4(d) and its predecessor DR 1-102(A)(5) have been cited when the conduct of the disciplined attorney directly affected a court proceeding or the course of litigation. For example, in Matter of Vincenti, 114 N.J. 275, 278 (1989), the New Jersey Supreme Court said that an attorney whose conduct included “failing to cooperate in appearing for the trial call, ... failing to treat all persons involved in the legal process with courtesy, and ... using abusive and vulgar language directed to the trial judge’s law clerk... violated RPC 8.4(d).”

RPC 8.4(d) and earlier DR 1-102(A)(5) have been cited also in instances of misusing the power of the court for personal benefit. See Matter of Yaccarino, 117 N.J. 175 (1989) (attempting to use a judicial office for own benefit to assist a daughter whose dog had been impounded for being unleashed).

Criminal conduct is also often cited under RPC 8.4(d). See Matter of Pepe, 140 N.J. 561, 570 (1995) (Superior Court judge found to have used and shared marijuana with others “in effect, ... under the cover of his judicial position ... [and] within the court house”).

Other examples include:

• Committing a fraud on the court by fraudulently concealing a conveyance of property while proceeding pro se in his divorce action. Matter of Kernan, 118 N.J. 361 (1990).

• Failure of municipal prosecutor to tell court he believed critical DWI witness had left courthouse to avoid testifying as a favor to defendant. Matter of Whitmore,117 N.J. 472, 475 (1990).

• Failure to appear at a deposition while engaged in litigation as a private party. Matter of Hecker, 109 N.J. 539, 548 (1988).

8.4:600   Implying Ability to Influence Public Officials

• Primary New Jersey References: NJ Rule 8.4(e)
• Background References: ABA Model Rule 8.4(e), Other Jurisdictions
• Commentary: ABA/BNA § 101:701, ALI-LGL § 173
• NJ Commentary:

Under RPC 8.4(e), a lawyer is guilty of professional misconduct if he or she “state[s] or impl[ies] an ability to influence improperly a government agency or official.”

8.4:700   Assisting Judge or Official in Violation of Duty

• Primary New Jersey References: NJ Rule 8.4(f)
• Background References: ABA Model Rule 8.4(f), Other Jurisdictions
• Commentary: ABA/BNA § , ALI-LGL § 173
• NJ Commentary: Section 41:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 8.4(f) defines professional misconduct to include “knowingly assist[ing] a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct or other law.” As yet, there have been no reported decisions applying or interpreting RPC 8.4(f).

8.4:800   Discrimination in the Practice of Law

• Primary New Jersey References: NJ Rule 8.4(g)
• Background References: Other Jurisdictions
• Commentary: ABA/BNA § 91:301
• NJ Commentary: Section 41:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

Under RPC 8.4(g), it is professional misconduct when an attorney “engage[s], 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.”

The rule has no counterpart in the Model Rules. The New Jersey Supreme Court explained its purpose as:

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 New Jersey 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.

Rules of Professional Conduct, Comment to RPC 8.4(g).

8.4:900   Threatening Prosecution

• Primary New Jersey References: NJ Rule 8.4
• Background References: Other Jurisdictions
• Commentary: ABA/BNA § 1:801, 61:601
• NJ Commentary:

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

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 8.5
• Background References: ABA Model Rule 8.5, Other Jurisdictions
• Commentary:
• NJ Commentary:

8.5:101      Model Rule Comparison

The New Jersey Supreme Court adopted the ABA Model Rule 8.5.

8.5:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

8.5:200   Disciplinary Authority

• Primary New Jersey References: NJ Rule 8.5
• Background References: ABA Model Rule 8.5, Other Jurisdictions
• Commentary: ABA/BNA § 101:2001, ALI-LGL § 5, Wolfram § 3.2
• NJ Commentary:

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

8.5:300   Choice of Law

• Primary New Jersey References: NJ Rule 8.5
• Background References: ABA Model Rule 8.5, Other Jurisdictions
• Commentary: ABA/BNA § 101:2101, ALI-LGL § 2, Wolfram § 2.6.1
• NJ Commentary:

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