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.