f/k/a archives . . . real opinions & real haiku

September 15, 2003

New NJ Lawyer Rules Allow More Sex, Less Candor and Competence Than the Model Rules

Filed under: pre-06-2006 — David Giacalone @ 8:13 pm

The New Jersey Supreme Court promulgated a number of new Rules of Professional Conduct for lawyers on September 10th, while refusing to adopt certain changes suggested by its own review commission and by the new ABA Model Rules.  The full report can be found here

As described in its Report, the primary actions of the New Jersey high court:

1. Eliminated the “appearance of impropriety” language from the Rules of Professional Conduct [RPC];

2. Generally made a municipal prosecutor’s disqualifications personal, and brought Rule 1:15-4 into conformity with that disposition;

3. Rejected proposed RPC 1.8(j), which would have explicitly prohibited sexual relations between a lawyer and client in the absence of a pre-existing consensual relationship. As noted under that RPC, the Court agreed with the State Bar Association that the proposal was too broad and that inappropriate sexual contact can be dealt with through existing rules, such as RPC 8.4;

4. Codified in RPC 1.11 the existing policy of the Office of the Attorney General that prohibits former government lawyers from serving certain clients for the six months immediately following the termination of the lawyer’s government service;

5. Amended RPC 3.3(a)(5), Candor Toward the Tribunal, in light of the concerns of the Bar and a significant minority of the Commission. The revised paragraph, which prohibits a lawyer from knowingly failing “to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal,” includes language that excepts disclosures that are “protected by a recognized privilege” or are “otherwise prohibited by law;”

6. Declined to adopt the Commission’s proposal on multijurisdictional practice (RPC 5.5). In lieu thereof, the Court approved the language proposed by the Ad Hoc Committee on Bar Admissions, which more narrowly tailored the expanded scope of the Rule. The Committee’s version appears in this Administrative Determination;

7. Modified RPC 7.2, Advertising, to include coverage of the “internet or other electronic media;” and

8. Declined to adopt the Commission’s modifications of RPC 7.3’s regulation of live solicitation of prospective clients.

Although I’m a little reluctant to agree with the New Jersey Bar Association on almost any topic (see below, and see yesterday’s post on the “bona fide office” rule), I think the NJ Supreme Court and the Association were right to oppose the ABA Model Rule’s total ban on sexual relations between lawyer and client, where none existed prior to representation,   In a posting on August 3, 2003, we wrote that the Model Rule’s blanket prohibition went too far.   We also suggested that New York had taken a preferable approach.  

I am, however, uncomfortable with the Court’s adoption of a weaker obligation of Candor Toward the Tribunal in Rule 3.3(a)(5).  The Rule had stated that a lawyer may not knowingly failing “to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal.”  The new version includes language that excepts disclosures that are “protected by a recognized privilege” or are “otherwise prohibited by law.”   In explaining its action, the Supreme Court stated:

“The New Jersey State Bar Association recommended that the Court delete paragraph (a)(5) of the RPC “because the very nature of the rule makes compliance difficult.”  In light of the concerns of the Bar and the significant divergence of opinion in the Commission, the Court has elected to amend paragraph (a)(5) to clarify its scope.”

It appears that a lawyer, despite being an “officer of the court,” no longer has to disclose a misleading material fact if it was learned within the attorney-client privilege.  This pretty much dismantles the disclosure obligation.  Is the need to bolster the attorney-client privilege more important than achieving justice?   Is it necessary to assure that compliance by the attorney won’t be “difficult”?   I’m not convinced.

Finally, in reviewing the Report, I discovered that that New Jersey has a Competence Rule quite different than the Model Rule or the Model Code.   I’ve added emphases to highlight the differences:

The ABA Model Rule 1.1 Competence, states:  

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Pennsylvania’s Rule 1.1 is even stronger, as it deletes the word “reasonably” from the Model Rule.

Similarly, the Model Code provision DR 6 101, which is in effect in New York, states:    

Failing to Act C ompetently   

A lawyer shall not:

1. Handle a legal matter which the lawyer knows or should know that he or she is not competent to handle, without associating with a lawyer who is competent to handle it.

2. Handle a legal matter without preparation adequate in the circumstances.

3. Neglect a legal matter entrusted to the lawyer.Relevant Ethics Opinion  

In contrast, here’s New Jersey RPC 1.1 on Competence:  

A lawyer shall not:

(a) Handle or neglect a matter entrusted to the lawyer in such manner that the lawyer’s conduct constitutes gross negligence.

(b) Exhibit a pattern of negligence or neglect in the lawyer’s handling of legal matters generally.

According to last week’s Report, the NJ review Commission had recommended that no change be made to the existing RPC 1.1, “which carries forward the terms ‘gross negligence’ and ‘pattern of negligence’ to identify ethical deviations from professional conduct.  Its Supreme Court agreed!  Pity the poor NJ client whose lawyer is just really, really negligent.  It’s no wonder, the NJBA doesn’t want out-of-state lawyers dealing with New Jersey clients.  They might get spoiled.

Blame It on the Moon

Filed under: pre-06-2006 — David Giacalone @ 2:27 pm

I’m fighting a silliness hangover, that must have been caused by that early Harvest Moon.   Although such mischief (ms.chief?) may be both normal and necessary for MadKane, I certainly can’t let it interfere with my mission as Conscience Coach for an entire profession (much of which is rumored to have no conscience).

Before I move on to crusade again, let me share with you an oldie but goodie (in blog years) from Madeleine, in response to my question this morning regarding when she will “spoof the endless self-promotion and mutual pointin’ and pingin’ in the blawgosphere.”   Denise Howell, the human memory chip (we may have to start calling her Backup & Baggage), recalled just such a MadKane song.  Mad dug it up, and here are the first two stanzas, for your edification and self-examination:

Bloggers’ Rhapsody
 (to be sung to Gershwin’s “Let’s Call the Whole Thing Off”)

You praise my weblog
And I’ll mention your blog.
You link my weblog
And I’ll link to your blog
Your blog,
Your blog,
Let’s call the whole thing off.

You laud my rampage

On Bush’s last outrage.
You say I’m so sage,
Go check out my web page.
So sage,
Web page,
Let’s call the whole thing off.”

It get’s even better, so please click here for the rest of it — after finishing this post, of course.  What does all this have to do with legal ethics?   If you have to ask, you better visit us regularly.   In the meantime, ponder my favorite classical autumn haiku:

Such a moon—

     Even the thief

     pauses to sing. 

Yosa Buson (1716-1783)


Ask and Ye Shall Receive, with a Smile and a Song

Filed under: pre-06-2006 — David Giacalone @ 7:10 am

Blawgging doesn’t get any cooler than this — having a MadKane.com song stanza written specially to accompany my recent complaint against lawyers who engage in driving while telephoning (DWT).  As Madeleine Begun Kane explains in her posting this morning, “Legal Humor and Interactive Songwriting” (Sept. 15, 2003): 

Some songs go platinum. One of mine has gone interactive. I’m referring to my song parody That’s What The Law’s About, which I wrote Saturday and which can be sung to that wedding perennial, “The Hokey Pokey.”

Within hours of my posting it, David Giacalone of ethicalEsq? (who found my legal spoof through Denise Howell’s eclectic Bag and Baggage) had linked to it and requested an additional stanza: a car-phoning stanza to go with his rant about lawyers using their cell phones while driving. He even threatened to write one himself if I didn’t come through for him.

That sounded to me like an offer I couldn’t refuse. Wherefore, I hereby post my spanking new additional and supplemental stanza, which I dedicate to David:

You’ve got to wield that phone
Right from the driver’s seat.
Your time is not your own
And you rarely sleep or eat.
But if you’re very lucky,
You won’t crash or run aground.
That’s what the law’s about.

All of which leaves me uncustomarily speechless.  Mad has indeed saved the world from lyrics of my own making, which is surely an ethical and proconsumer action on her part. 


More and more studies (I’m too lazy to find them right now) have concluded that happy people tend to be more moral, and that laughing at yourself helps keep a person happy and sane.  Thus, and to wit, lawyers who learn to laugh at themselves will be happier, more content and more ethical.  So, add a moment of humor to your daily schedule.  Besides Madeleine’s site and her suggestions for the best lawyer humor, and a couple more from Denise Howell, we recommend the Nolo.com Lawyer Joke Emporium, which offers jokes in the following categories:

No One Loves a Lawyer, Doctors and Lawyers, Lawyers as Ambulance Chasers, Lawyer Bashing: It’s Not a Dying Art, Lawyers and the Truth, Lawyers as Money Grubbers, Lawyers in Love, Lawyers in Hell, Courtroom Behavior, Lawyers in the Woods, Lawyers as Blockheads, Law School, Lawyers on Vacation, Lawyers and the Animal Kingdom, Partnership, And Justice for None, Judges and Lawyers, What Is a Lawyer?

If you still need to groan a bit more over lawyer satire, silliness and whimsy, try ethicalEsq?‘s own Weakly Specials collection.   I wonder when Madeleine will spoof the endless self-promotion and mutual pointin’ and pingin’ in the blawgosphere.

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