RPC

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Bonnie C. Frost, Secretary
EINHORN, HARRIS, ASCHER, BARBARITO, FROST & IRONSON
165 E. Main Street, Box 3010
Denville, NJ 07834-3010
(973) 586-4924

The full Rules of Professional Conduct can be found here

Adopted Effective September 10, 1984
Including Amendments Effective September 1, 1998

INTRODUCTION

The Supreme Court has adopted the ABA Model Rules of Professional Conduct, as recommended by the Supreme Court Committee on the Model Rules of Professional Conduct (the "Debevoise Committee") and as revised by the Court. Among the several other recommendations taken into account by the Court in adopting these rules were those by the New Jersey State Bar Association (NJSBA), the New Jersey Prosecutors Association, the United States Securities and Exchange Commission, the United States Department of Justice, and private practitioners.

The explanatory comments that follow each rule have not been adopted by the Court nor should they be considered as a formal part of the rules. For assistance in interpreting these rules, reference should be made to the official ABA Comments and the commentary by the DebevoiseCommittee in its June 24, 1983 report, which appeared as a supplement to the July 28, 1983 issue of the New Jersey Law Journal.

SPECIAL NOTE: RPC 7.1 through RPC 7.5 are DR 2-101 through DR 2-105 as amended January 16, 1984, with minor editorial changes. They have been renumbered consistent with the ABA Model Rule numbering scheme. The explanatory comments that accompanied the adoption of these amended rules (as published in the January 26, 1984 issue of the New Jersey Law Journal, 113 N.J.L.J. 91-93) are again included here for ease of reference (also with minor editorial changes). It should be further noted that the Court is in the process of preparing an additional revision to RPC 7.3 as it relates to prepaid legal services plans, to be soon published for comments in the New Jersey Law Journal.

NOTE

These rules shall be referred to as the Rules of Professional Conduct and shall be abbreviated as "RPC".

RPC 1.1 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.

Comment to RPC 1.1

The Court, following the recommendation of the Debevoise Committee, has retained DR 6-101 ("Failing to Act Competently"), renumbered as RPC 1.1 and entitled "Competence," rather than adopt the ABA's Rule 1.1. As recognized by that committee, ensuring and improving professional competence is one of the most important responsibilities of the legal profession. The use of the terms "gross negligence" and "pattern of negligence or neglect" provides sufficiently definite standards of prohibited conduct so as to avoid the difficulties that the more vague ABA version would create. These terms have been applied and interpreted by the Court many times. See, e.g., In re Barry, 90 N.J. 286 (1982); In re Goldstaub, 90 N.J. 1 (1982); In re Barrett, 88 N.J. 450 (1982); In re Getchius, 88 N.J. 269 (1982). By retaining the text of DR 6-101, the relevance of that case law will be preserved.

To achieve and maintain the necessary levels of competence envisioned by this rule, the lawyer should engage in continuing legal study and education.

RPC 3.1 MERITORIOUS CLAIMS AND CONTENTIONS

A lawyer shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Comment to RPC 3.1

The Court has adopted the Debevoise Committee recommendation, with clarifying language revisions as suggested by the NJSBA in its written comments submitted to the Court.

RPC 3.2 EXPEDITING LITIGATION

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client and shall treat with courtesy and consideration all persons involved in the legal process.

Comment to RPC 3.2

As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 3.2,which places with the attorney an affirmative obligation to make a reasonable effort to expedite the client's litigation. The Court has, however, added to the rule a portion of former DR 7-101(A)(1) requiring attorneys to exercise "courtesy and consideration" to everyone involved in the legal process.

RPC 3.3 CANDOR TOWARD THE TRIBUNAL

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures; or

(5) fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by RPC 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse.

Comment to RPC 3.3

The Court has made two revisions to ABA Model Rule 3.3, which rule the Debevoise Committee recommended for adoption. One, the provisions of subparagraph (a)(2) are made applicable to "illegal" acts by clients, not just "criminal" and "fraudulent" acts. And, two, subparagraph (a)(5) has been added, which provides that attorneys shall not fail to disclose material facts that are likely to mislead the tribunal if counsel were to remain silent. This applies both to facts that are at issue in the case as well as facts relating to the management of the case. An attorney has an obligation to be candid and act with good faith toward the tribunal. See, e.g., In re Nigohosian, 88 N.J. 308 (1982); In re Herbstman, 84 N.J. 485 (1980); In re Turner, 83 N.J. 536 (1980).

RPC 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer shall not:

(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure make frivolous discovery requests or fail to make reasonably diligent efforts to comply with legally proper discovery requests by an opposing party;

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

(g) present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.

Note: Adopted July 12, 1984, to be effective September 10, 1984; paragraph (g) adopted July 18, 1990, to be effective September 4, 1990.

Comment to RPC 3.4

The Court has adopted the recommendation of the Debevoise Committee. That committee had recommended adoption of ABA Model Rule 3.4, except for paragraph (d) thereof, which it revised so as to reflect a "pattern of behavior" proscription consistent with the provisions of RPC 1.1.

RPC 3.7 LAWYER AS WITNESS

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by RPC 1.7 or RPC 1.9.

Comment to RPC 3.7

As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 3.7, which deals with an attorney combining the roles of advocate and witness or potential witness. As noted by the Debevoise Committee, "[t]he goal of this Rule is to ensure that any such combination of roles by the attorney does not either prejudice the interest of the client or give rise to a conflict of interest between attorney and client."

RPC 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS

(a) In representing a client a lawyer shall not knowingly:

(1) make a false statement of material fact or law to a third person; or

(2) 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.

(b) The duties stated in this Rule apply even if compliance requires disclosure of information otherwise protected by RPC 1.6.

Comment to RPC 4.1

The Court has adopted the recommendation of the Debevoise Committee. 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.

RPC 4.3 DEALING WITH UNREPRESENTED PERSON; EMPLOYEE OF ORGANIZATION

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. If the person is a director, officer, employee, member, shareholder or other constituent of an organization concerned with the subject of the lawyer's representation but not a person defined by RPC 1.13(a), the lawyer shall also ascertain by reasonable diligence whether the person is actually represented by the organization'sattorney pursuant to RPC 1.13(e) or who has a right to such representation on request, and, if the person is not so represented or entitled to representation, the lawyer shall make known to the person that insofar as the lawyer understands, the person is not being represented by the organization's attorney.

Note: Adopted September 10, 1984, to be effective immediately; amended June 28, 1996, to be effective September 1, 1996.

Comment to RPC 4.3

As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 4.3. As noted by the Committee and in the ABA Comment, in some situations it may be sufficient merely to suggest that the unrepresented person retain counsel.

RPC 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

Comment to RPC 4.4

As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 4.4.

RPC 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER

(a) Every law firm and organization authorized by the Court Rules to practice law in this jurisdiction shall make reasonable efforts to ensure that member lawyers or lawyers otherwise participating in the organization's work undertake measures giving reasonable assurance that all lawyers conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(1) the lawyer orders or ratifies the conduct involved; or

(2) the lawyer having direct supervisory authority over the other lawyer knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Comment to RPC 5.1

The Court has adopted the Debevoise Committee recommendation, with one revision toparagraph (a) so as to make clear its applicability to all lawyers and entities engaged in the practice of law. This version further differs somewhat from the ABA-adopted rule in that it does not impute responsibility upon a partner in a law firm for the ethical transgressions of law partners unless the attorney had direct supervisory authority over them. See also RPC 8.4(a).

RPC 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

Comment to RPC 5.2

As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 5.2. This rule is a corollary to RPC 5.1 ("Responsibilities of a Partner or Supervisory Lawyer"). As noted by the Debevoise Committee, while this rule has no counterpart in the Disciplinary Rules which these rules replace, "the need exists to state explicitly the paramount nature of the subordinate attorney's ethical obligations."

RPC 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) every lawyer or organization authorized by the Court Rules to practice law in this jurisdiction shall adopt and maintain reasonable efforts to ensure that the conduct of nonlawyers retained or employed by the lawyer, law firm or organization is compatible with the professional obligations of the lawyer.

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or ratifies the conduct involved;

(2) the lawyer has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action; or

(3) the lawyer has failed to make reasonable investigation of circumstances that would disclose past instances of conduct by the nonlawyer incompatible with the professional obligationsof a lawyer, which evidence a propensity for such conduct.

Comment to RPC 5.3

This rule mirrors as to "nonlawyer assistants" the provisions of RPC 5.1.

The Court has added to the Debevoise Committee recommendation subparagraph (c)(3) requiring lawyers to make reasonable inquiry as to whether their nonlawyer employees have by instances of past conduct demonstrated a propensity for conduct incompatible with the lawyer's ethical obligations. Cf. DiCosala v. Kay, 91 N.J. 159, 169 et seq. (1982) (the tort of "negligent hiring"). The Court has also revised paragraph (a) consistent with the recommendations of the NJSBA so as to make the rule applicable to all entities engaged in the practice of law.

RPC 8.3 REPORTING PROFESSIONAL MISCONDUCT

(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(d) Paragraph (a) of this Rule shall not apply to knowledge obtained as a result of participation in a Lawyers Assistance Program established by the Supreme Court and administered by the New Jersey State Bar Association, except as follows:

(i) if the effect of discovered ethics infractions on the practice of an impaired attorney is irremediable or poses a substantial and imminent threat to the interests of clients, then attorney volunteers, peer counselors, or program staff have a duty to disclose the infractions to the disciplinary authorities, and attorney volunteers have the obligation to apply immediately for theappointment of a conservator, who also has the obligation to report ethics infractions to disciplinary authorities; and

(ii) attorney volunteers or peer counselors assisting the impaired attorney in conjunction with his or her practice have the same responsibility as any other lawyer to deal candidly with clients, but that responsibility does not include the duty to disclose voluntarily, without inquiry by the client, information of past violations or present violations that did not or do not pose a serious danger to clients.

Note: Adopted July 12, 1984, to be effective September 10, 1984; new paragraph (d) adopted October 5, 1993, to be effective immediately.

Comment to RPC 8.3

As recommended by the Debevoise Committee, the Court has adopted ABA Model Rule 8.3. This rule in no way reduces the present obligation to report such judicial and attorney ethical violations.

RPC 8.4 MISCONDUCT

It is professional misconduct for a lawyer to:

(a) 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;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official;

(f) knowingly assist a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct or other law;

(g) engage, 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.

Note: Adopted July 12, 1984, to be effective September 10, 1984; paragraph (g) adopted July 18, 1990, to be effective September 4, 1990; paragraph (g) amended May 3, 1994, to be effective September 1, 1994.

Comment by Supreme Court

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 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.

Case law has already suggested both the area covered by this amendment and the possible direction of future cases. In re Vincenti, 114 N.J. 275 (554 A.2d 470) (1989). The Court believes the administration of justice would be better served, however, by the adoption of this general rule than by a case by case development of the scope of the professional obligation.

While the origin of this rule was a recommendation of the Supreme Court's Task Force on Women in the Courts, the Court concluded that the protection, limited to women and minorities in that recommendation, should be expanded. The groups covered in the initial proposed amendment to the rule are the same as those named in Canon 3A(4) of the Code of Judicial Conduct.

Following the initial publication of this proposed subsection (g) and receipt of various comments and suggestions, the Court revised the proposed amendment by making explicit its intent to limit the rule to conduct by attorneys in a professional capacity, to exclude employment discrimination unless adjudicated, to restrict the scope to conduct intended or likely to cause harm, and to include discrimination because of sexual orientation or socioeconomic status, these categories having been proposed by the ABA's Standing Committee on Ethics and Professional Responsibility as additions to the groups now covered in Canon 3A(4) of the New Jersey Code of Judicial Conduct. That Committee has also proposed that judges require attorneys, in proceedings before a judge, refrain from manifesting by words or conduct any bias or prejudice based on any of these categories. See proposed Canon 3A(6). This revision to the RPC further reflects the Court's intent to cover all discrimination where the attorney intends to cause harm such as inflicting emotional distress or obtaining a tactical advantage and not to cover instances when no harm is intended unless its occurrence is likely regardless of intent, e.g., where discriminatory comments or behavior is repetitive. While obviously the language of the rule cannot explicitly cover every instance ofpossible discriminatory conduct, the Court believes that, along with existing case law, it sufficiently narrows the breadth of the rule to avoid any suggestion that it is overly broad. See, e.g., In re Vincenti, 114 N.J. 275 (554 A.2d 470) (1989).

Comment to RPC 8.4

The Court has adopted ABA Model Rule 8.4, which defines "professional misconduct." The Debevoise Committee had recommended adoption of an earlier version containing two additional paragraphs, but the provisions of those paragraphs are included in ABA Model Rule 5.5 ("Unauthorized Practice of Law"), which the Court has adopted as RPC 5.5.

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