NJSBA Response to the Pollock Commission and Wallace Committee Reports - April 2003
TABLE OF CONTENTS
Permitting Foreign Educated Attorneys and Graduates of Non-Accredited Law Schools to Take the Bar Examination
The Supreme Court of New Jersey in 2001 appointed a Commission on the Rules of Professional Conduct (chaired by retired Justice Stewart G. Pollock, and known as the "Pollock Commission") to review amendments approved by the American Bar Association to its Model Rules of Professional Conduct (RPCs). In addition, the Pollock Commission was asked to review proposals of the ABA's Commission on Multijurisdictional Practice (MJP), including a proposed MJP rule, and a recommendation supporting the admission of out-of-state lawyers to the New Jersey bar on motion. Further, the Pollock Commission was asked to address two New Jersey specific issues - the bona fide office rule, and the possible extension of a municipal prosecutor's disqualification (pursuant to State v. Clark) to members of the prosecutor's law firm.
The Court also appointed in 2001 an Ad Hoc Committee on Bar Admissions (chaired by Judge John E. Wallace Jr. and co-chaired by John J. Francis Jr., Esq., and known as the "Wallace Committee") to study a number of issues relating generally to bar admission and law practice in New Jersey, some of which were also reviewed by the Pollock Commission. These include: MJP, admission to the bar on motion, the bona fide office rule, bar exam eligibility for foreign educated attorneys admitted in other U.S. jurisdictions, bar exam eligibility for U.S. lawyers admitted in other jurisdictions who attended non-accredited law schools, and rules governing the law practice of in-house counsel.
The NJSBA directed its Professional Responsibility Committee to review the report of the Pollock Commission and appointed its own Ad Hoc Committee on Bar Admissions to review the report of the Wallace Committee. The two committees provided the NJSBA Board of Trustees with reports, and the committee chairs also appeared before the Board to present their positions. The Board adopted a number of recommendations for consideration by the Supreme Court, as set forth below.
The NJSBA thanks the Court for the opportunity it has provided the bar to comment on the two reports, and it applauds the members of the Pollock Commission and the Wallace Committee for their dedication and fine service to the Court and the bar.
The NJSBA supports the Pollock Commission recommendations that would, a) clarify the intent of the rule by changes in sentence structure, b) specify that a lawyer may take action on behalf of a client as implicitly authorized, and c) permit a lawyer to limit the scope of representation if such limitation is reasonable and the client consents after consultation.
The Pollock Commission recommends the addition of a paragraph that would require a lawyer to "fully inform" a client about how, when, and where they may communicate with the lawyer, as well as where files are kept. This amendment is intended, at least in part, to help implement the Commission's recommendation that a New Jersey lawyer have a bona fide office somewhere, not necessarily in New Jersey.
Although the proposal is well intended (even if no changes are made to the bona fide office rule) the NJSBA recommends that it be amended to delete the requirement regarding notice about where files "are kept." We believe, of course, that lawyers should respond in a reasonable and responsible manner to requests for information about files, as is currently required. However, because "files" may now be maintained in a variety of formats (e.g. on paper, or electronically) and places (e.g. the main office, a satellite office, or a storage facility) the rule amendment as written may create compliance problems for certain law firms, and perhaps be confusing for clients as well.
The Pollock Commission recommends adding to the current rule a provision that would require a lawyer to notify a client about a division of fees with a lawyer in another firm. The Commission wisely rejected an ABA recommendation requiring client consent to such a fee division. The NJSBA supports the commission's recommendation, and opposed the ABA recommendation.
The Pollock Commission recommends expansion of the mandatory disclosure requirement in paragraph (b) of the rule to require a lawyer to reveal information to the "proper authorities" not only to prevent a client from committing a criminal or illegal act likely to result in death or substantial bodily or financial injury to another, but also to prevent "any other person" from committing such an act. In addition, the Commission would add another provision that would permit a lawyer to reveal such information to the person being threatened (in addition to the authorities) if it is believed that disclosure may prevent the harm.
The Commission's recommendations would further expand a rule that is the broadest in the nation, in terms of requiring a lawyer to reveal confidential information gained from a client. The NJSBA is opposed to the amendment in (b) that would require a lawyer to take steps to prevent "other persons" from committing illegal acts. A lawyer could be placed in a difficult and untenable situation, as well as one fraught with possible liability both if the lawyer's judgment is too "revealing" or not revealing enough. New Jersey's RPC 1.6 is already far broader than equivalent rules in other jurisdictions. The proposed amendment in (b) would stretch the rule to a point that would require a lawyer to be a combination prosecutor and clairvoyant in order to comply with its dictates.
Assume for example that a lawyer represents X Corp. in an environmental matter. During the course of discussions the lawyer asks about possible discharges into a nearby waterway. The representative of X Corp. says his company would never do such a thing, but he thinks neighboring B Corp. has been discharging pollutants. What is the lawyer to do? Immediately contact the DEP? Undertake an investigation? Confront the president of B Corp.? What if the allegation is untrue, would the lawyer's actions expose both her and X Corp. to suit by B Corp.? And, what might be the reaction of the lawyer's malpractice carrier?
New Jersey's lawyers have learned to live with the stringent requirements of the current rule; there is no reason to further expand it to create a potential trap for even the most vigilant practitioners.
The NJSBA supports proposed Rule 1.7 and Pollock Commission efforts to reorganize the conflicts rules in accordance with the sensible recommendations of the ABA. This includes requiring that the consent of an adversely affected client be "informed consent, confirmed in writing after full disclosure and consultation." This is a slight departure from, but an improvement on, the current New Jersey rule that requires "full disclosure of the circumstances and consultation with the client…"
The NJSBA applauds the Pollock Commission for recommending the deletion of the appearance of impropriety provision currently set forth in Rule 1.7 (c). The Commission concluded, as this association has long argued, that the provision is vague, subjective, not appropriate as an ethics standard, and has been utilized in litigation for questionable tactical purposes. The ABA, through its Model Rules, has never recognized the need for the standard, nor have any other states. It is time for New Jersey to join them.
The Pollock Commission recommends a number of amendments it claims will strengthen the rule governing lawyer business transactions and other relationships with clients, in accord with recommendations made by the ABA:
It is suggested that prior to entering into a transaction a client be advised in writing of the desirability to seek independent counsel. The proposed rule would also require a client's informed consent, in writing, to the terms of the transaction and the lawyer's role.
The rule would also prohibit a lawyer from soliciting a substantial gift from a client not related to the lawyer.
Paragraph (g) of the rule would be amended to require a lawyer representing multiple clients to obtain, after disclosure and consultation, the signed consent of the clients prior to making settlement.
New paragraph (j) would prohibit sexual relations between lawyer and client unless they had a consensual sexual relationship when the lawyer-client relationship began.
New paragraph (l) would prohibit a lawyer employed by a public entity from representing another client "if the representation presents a substantial risk that the lawyer's responsibilities to the public entity would limit the lawyer's ability to provide independent advice or diligent and competent representation to either the public entity or the client, or would enable the lawyer to improperly influence the decision of a government agency or public official responsible for a decision in the matter."
The NJSBA supports the Commission's proposals regarding business transactions between lawyers and clients; however, we oppose other aspects of the proposed rule. Paragraph (g) requiring written consent of all multiple clients prior to settlement, while well intended, would create havoc in class action and other complex matters involving many parties. We suggest that the rule instead require "informed consent" of clients, following full disclosure and consultation.
The NJSBA continues to oppose paragraph (j) regarding sexual relations with clients as unnecessary and too broadly worded. We believe that instances of inappropriate and potentially abusive sexual contact can be dealt with via existing rules, such as RPC 8.4, the professional misconduct rule.
The NJSBA believes that some of the language in (l) is too vague and that such conduct (influencing a government entity or official) is in any event already proscribed by other rules and criminal law statutes. Specifically, the NJSBA believes that the first portion of paragraph (l) is an appropriate conflicts standard and we recommend its adoption. However, the final phrase of the paragraph beginning "or would enable the lawyer to improperly influence…" should be deleted because it is confusing. How would a particular representation "enable" a lawyer to exert improper influence, and how would a lawyer know he may even be in such a situation? We also suspect that this phrase may be an attempt by the Commission to remold at least part of the appearance of impropriety standard as it relates to lawyers in public positions. If so, it is as equally vague and unnecessary as the current standard that the Commission suggests be discarded.
Finally, we point out that a reference in paragraph (k) to the deleted appearance of impropriety standard should be removed.
The Pollock Commission recommends maintaining the general scope of the rule which imposes on lawyers, after a representation has terminated, certain continuing duties to former clients, particularly where a new client's interests may be materially adverse to those of the former client. However, the rule permits representation of that new client to proceed with the permission of the former client, and the Commission suggests an amendment requiring such consent to be in writing. The NJSBA supports this change.
The Commission also recommends adding a provision in paragraph (b)(3) that would prohibit a law firm from undertaking a representation if a partner or associate, while employed elsewhere, had "sole or primary responsibility" for the same, or a substantially similar, matter.
The NJSBA opposes the "per se" prohibition in (b)(3) because it does not allow for even the possibility of former client consent, or screening the lawyer with the conflict. We believe that both options are appropriate mechanisms for dealing with conflicts.
The Pollock Commission recommends that the rule retain current provisions relating to imputation of conflicts to others in a law firm, except where a conflict is based solely on a "personal interest" of a firm lawyer (such as may be based on religious or political beliefs). The NJSBA supports this amendment. The Commission also recommends that law firms, in certain circumstances, be permitted to address conflicts by screening a lawyer from participation in the matter and so notifying the client. Again, the Commission would not permit screening if the lawyer in question had a primary role in the matter while at another employer. (See Rule 1.9 above).
Further, the Commission suggests that a screened lawyer receive no portion of the fee generated from the matter. The rule would also require that law firms utilizing screening must devise written procedures that ensure compliance with the rule.
The NJSBA encourages the Supreme Court to permit law firms to make wide use of screening to deal with conflicts, with appropriate safeguards as suggested by the Commission. However, we do object to the Commission's recommendation that a firm take steps to ensure that a screened lawyer is apportioned no part of the fee generated by the matter in question. Our objection has a practical basis. Law firms today calculate compensation by a wide variety of methods and may not "apportion" fees as precisely as the Commission implies. As a result, the proposed rule would place an almost impossible burden on some law firms. We recommend that firms be encouraged, but not required, to take such action. In this regard, paragraph (c) of the proposed rule may be amended to state "the personally disqualified lawyer is timely screened from any participation in the matter and every effort should be made by the firm to see that the lawyer is apportioned no part of the fee therefrom." In this way a firm that could not possibly comply with the rule would not be deemed to violate it.
The NJSBA supports the Pollock Commission recommendation that applies conflicts rules to lawyers who have served, or currently serve, in the public sector. These provisions are intended to prevent a lawyer from exploiting a public position for the benefit of a client obtained after leaving public service. We also support the use of screening, as recommended by the Commission, in order not to unduly restrict the movement of government lawyers into private practice.
The Pollock Committee would extend the rule to prohibit later representation of clients in a matter where a lawyer served as a mediator or other third party neutral (the current rule applies to only former judges, arbitrators, and "other adjudicative officer"). The Commission would also expand the rule to prevent disqualification of a law firm who hired a former judge, law clerk, or lawyer who serves as a third party neutral if the disqualified lawyer is screened from participation in the matter in question, does not share in the fee, and written notice is provided to the parties and the appropriate tribunal.
The NJSBA supports the proposed rule amendments, with the exception of the fee apportionment provision, for the same reasons noted in our comments to proposed Rule 1.10 above.
The NJSBA supports the Pollock Commission's recommended expansion of the rule, as proposed by the ABA, so that a lawyer would be able to take appropriate "protective measures" for a client believed by the lawyer to have diminished capacity and who is at risk of substantial physical, financial or other harm.
The NJSBA supports the Pollock Commission's amendments that would a) make it clear that a lawyer can withdraw from a representation for any reason when withdrawal can be accomplished without adverse impact on the interests of the client and b) permit withdrawal when a disagreement with a client over objectives or means is so fundamental that it threatens the lawyer's autonomy.
The Pollock Commission recommends adoption of a new rule that would impose obligations on lawyers based on discussions with "prospective clients." The rule would prohibit a lawyer from generally:
using or revealing information acquired during such a discussion.
representing a new client with interests adverse to a former prospective client, if the latter revealed information that could be "significantly harmful" to his interests if the new client matter proceeded.
The proposed rule would also impute the conflict to the disqualified lawyer's firm unless the current client and former prospective client both consent to the representation, and the lawyer in question is screened from the matter.
The NJSBA supports the proposed rule because guidance is needed in this area. Issues frequently arise in law firms regarding potential conflicts generated by discussions with potential clients, and there appears to be an increasing number of court opinions in many jurisdictions focusing on such issues. The NJSBA believes this rule will be beneficial to lawyers and clients.
The NJSBA supports Pollock Commission clarifying amendments to the rule that governs lawyer preparation of evaluations for the use of a third party. The rule would prohibit the preparation of an evaluation absent client consent after consultation if a lawyer knows, or should know, that the evaluation is likely to adversely affect the client's interests.
The NJSBA supports this new rule that would require a lawyer serving as a third party neutral to make sure the parties understand fully the lawyer's role in a neutral capacity. It is important that parties be aware that the "neutral" role is just that, and no representation of a party is involved.
Although the Pollock Commission recommends the retention of the current rule, the Commission report notes that members had "extensive discussions" about whether to retain paragraph (a)(5) of the rule that requires a lawyer to disclose a material fact to a tribunal if the lawyer knows the tribunal "may be misled" by a failure to disclose.
The NJSBA recommends deletion of (a)(5)-a provision that does not appear in the ABA Model Rules-because the very nature of the rule makes compliance difficult. As noted in the Commission's report the rule strains the attorney-client relationship by placing a duty on a lawyer to disclose information that may be adverse to the client's interest. Further, how is a lawyer to know when a judge "may be misled" by a failure to disclose? What if a judge is simply confused, does the rule require a lawyer to bring every potentially material fact to the courts attention, even information forgotten or ignored by an adversary? Just how far must a lawyer go? In addition to its intrusion on the attorney-client relationship, the rule seems inconsistent with traditional notions of an adversary system where discovery requests and adversarial proceedings frame the issues and sort out the truth, without the need for self-reporting.
The NJSBA supports the Pollock Commission's substantial revisions of the current rule based on concerns that the rule so broadly prohibits a lawyer's out-of-court statements that it may impinge on free speech guarantees. The Commission suggests that the rule clearly state that extrajudicial speech restrictions apply only to lawyers who participate in the investigation or litigation of the matter and not to lawyers who may happen to comment on a pending case.
The NJSBA supports the Commission's two proposed amendments to the rule that would a) limit the circumstances under which a prosecutor could subpoena a lawyer to present evidence about a past or current client and b) prevent a prosecutor from making extrajudicial statements that have the likelihood of heightening public condemnation of an accused, unless the statements are necessary to explain the prosecutor's actions and serve a legitimate law enforcement purpose.
The Pollock Commission recommends adding "by court order" to the existing exceptions in the rule under which a lawyer is allowed to communicate with another person who is represented by counsel. The NJSBA supports the amendment. We also welcome the proposed comment that would help define the term "litigation control group."
The Pollock Commission recommends an amendment that would obligate a lawyer who receives a document that was sent inadvertently to immediately return the document to the sender. The ABA had recommended that the recipient of such document call the sender and ask for instructions about what to do with the document.
The NJSBA supports the rule amendment proposed by the Commission because it is the sensible approach to the issue. However, we believe that it is misplaced within Rule 4.4 because the rule has always governed a lawyer's responsibilities to third parties and the amendment would cover, for the most part, lawyer-to-lawyer communications. The NJSBA suggests that the amendment be moved to a more appropriate section in the RPCs, perhaps Rule 3.4 that requires fair dealing with adversaries and parties.
The Pollock Commission recommends an exception to the prohibition against fee sharing with a non-lawyer that would permit a lawyer to share court awarded fees with a non-profit organization that employed the lawyer. The Commission report indicates that the amendment is intended to permit the practice followed by the ACLU, and that the rule was adopted by a "closely divided commission."
The NJSBA is concerned about the proposed rule because it carves out an exception to the prohibition against fee sharing with non-lawyers. However, because the rule apparently codifies existing practice and fees are court awarded, we endorse the amendment.
Both the Pollock Commission and Wallace Committee recommend extensive revisions to the rule to permit lawyers admitted in other jurisdictions to come into New Jersey to handle certain matters on a temporary basis. The rule would also recognize the full-time presence of certain lawyers not admitted to practice here, but who work as in-house counsel or who are permitted to practice by federal law.
Both rule proposals would make it clear that generally any lawyer not admitted to the New Jersey bar cannot practice law on a regular basis, or assist another in any activity that would constitute the unauthorized practice of law.
The proposed rules recognize specific types of legal services that could be performed in New Jersey on a temporary basis, including a) pre-litigation activity relating to a New Jersey matter where pro hac vice admission is contemplated or has been obtained, b) pre-litigation activity related to a matter pending in a jurisdiction where the lawyer is admitted to practice, c) participation in CDR/ADR proceedings, and d) certain types of transactional practice.
However, the Pollock Commission and the Wallace Committee rules differ significantly in approach and language. The NJSBA favors generally the rule proposed by the Wallace Committee, particularly because of the more detailed and conservative language it contains relating to temporary practice in New Jersey in transactional and dispute resolution matters. We have said from the outset-in our report on MJP and in testimony before the ABA-that the NJSBA favors a rule that provides clear guidance for lawyers but does not abandon traditional rules and customs regulating cross-border practice. In this regard, we believe that the Commission's rule (which mirrors that proposed by the ABA) is much too broad and would weaken, if not abandon, current prohibitions against unauthorized practice.
When evaluating proposals for change in bar admission policy, whether suggested by the ABA, or another entity, one factor must remain paramount-the constitutional authority of the Supreme Court of New Jersey to regulate the conduct of lawyers and establish bar admission standards. For decades the Court, through strong regulatory oversight, has ensured that the public has access to a skilled bar mindful of the need for client loyalty and integrity in handling legal matters.
Cross-border, or multijurisdictional, practice is a departure from New Jersey's traditional bar admission standards. Depending on the scope of any rule that might be adopted, it is a development that may have far reaching consequences for both the bar and the courts and the public we serve. For instance, it has been suggested that an MJP rule that is too liberal in scope may ultimately harm a state's legal profession. See Lessons From the Multijurisdictional Practice Committee: The Art of Making Change, Stephen Gillers, 44 Arizona Law Review 685 (Fall/Winter 2002).
Therefore, in order to maintain the quality of legal services now expected by the public, it is essential that any MJP rule be carefully circumscribed. An MJP rule must not be a loophole through which lawyers from other jurisdictions may pass without heed to bar admission requirements or court rules defining the practice of law in New Jersey.
The NJSBA recommendations are set forth below. Underlying our rule are two important concepts. First, that MJP activity by an out-of-state lawyer be truly temporary. Second, that the legal matter in question arise from the jurisdiction where the lawyer is admitted to practice and is undertaken on behalf of an existing client from the same jurisdiction. We believe our recommended MJP rule strikes the correct balance between the need for reform and the importance of maintaining appropriate bar admission and regulatory standards supportive of the Supreme Court's oversight authority. Our recommendations are as follows:
1. Pre-Litigation Activity:
The NJSBA supports the virtually identical commission and committee proposals permitting temporary practice in preparation for litigation in New Jersey undertaken with pro hac vice admission, or a reasonable expectation to gain such admission, in association with a New Jersey lawyer. See proposed RPC 5.5 (c)(2) of the Pollock Commission report; proposed RPC 5.5 (a)(1) of the Wallace Committee report.
The Wallace Committee further suggests a pre-litigation provision permitting a lawyer from another jurisdiction to come to New Jersey to perform investigations, conduct discovery, and interview and depose witnesses for a proceeding pending or anticipated to be brought in the jurisdiction where the lawyer is admitted to practice. See proposed RPC 5.5 (b)(3)(iii). This portion of the proposed rule reflects current litigation practice. However, the NJSBA is concerned that this rule, as drafted, may encourage lawyers to come into New Jersey to solicit potential clients for lawsuits to be filed in other jurisdictions.
Therefore, we suggest that subparagraph (iii) be amended to require that the lawyer's activity in New Jersey be "on behalf of an existing client for a proceeding pending or anticipated to be instituted in a jurisdiction in which the lawyer is admitted to practice and where the dispute originates in or is otherwise related to a jurisdiction where the lawyer is admitted to practice" (underscored language to be added to proposed rule). Similar limiting language is recommended by the Wallace Committee for other types of multijurisdictional practice (see below).
2. ADR/CDR Representation
Regarding ADR/CDR proceedings, the Wallace Committee proposal makes an important distinction that the NJSBA believes makes it a stronger and better-defined rule than the one suggested by the Pollock Commission. The amendment permits a lawyer to come to New Jersey on behalf of an "existing client" in the lawyer's jurisdiction of admission, if the matter "originates in or is otherwise related to the jurisdiction in which the lawyer is admitted to practice." See RPC 5.5 (b)(3)(iii). The committee therefore ties the representation in New Jersey to an existing client and the dispute to the lawyer's "home" jurisdiction. Thus, an Illinois lawyer who has long represented X Products, a Chicago corporation, may come into New Jersey to arbitrate a contract involving the sale of goods by X Products to some New Jersey retailers.
Contrast the Wallace Committee approach to that of the Pollock Commission, whose rule provides that a lawyer admitted in another state may represent a party in a New Jersey alternative dispute resolution proceeding "if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice…" (emphasis supplied). The NJSBA suggests that the quoted language would be subject to wide interpretation and might open the door to temporary practice here by dispute resolution professionals from across the country. For instance, a Denver lawyer with an arbitration based practice could, under the commission's rule, come to New Jersey to represent a party in a Civil Division arbitration arising out of a New Jersey dispute, regardless of the fact that the lawyer never represented the party before, but was called in because of her expertise in arbitration. After all, the services would be "reasonably related" to the lawyer's practice in arbitration matters.
3. Transactional Matters
The NJSBA has found that trying to regulate the practice of lawyers who handle transactional matters is the most difficult aspect of crafting an MJP rule. As the Pollock Commission report notes, "the level of service permissible under this provision should be significantly lower than under the other three provisions…because it is easier to keep track of a lawyer who is working in association with a New Jersey admitted attorney or whose work has some direct connection to a formal adjudicative proceeding."
In this regard, the Commission concluded that transactional lawyers who provide legal services here on a recurring basis or for an extended period should not be able to take advantage of Rule 5.5. However, this limiting language appears only in the commentary contained in the Pollock Commission report and is not, unfortunately, set forth in the proposed rule.
Instead, the "catch-all" transactional rule (designed to cover circumstances not specifically enumerated in the rule) uses the same questionable language as in the alternate dispute resolution provision discussed above. That is, the rule would permit a lawyer admitted in another state to come to New Jersey to handle a transaction that arises out of or is "reasonably related to the lawyer's practice." See proposed RPC 5.5 (c)(4). Again, this loosely worded provision is susceptible to various interpretations and may encourage mischief. What if a Los Angeles lawyer has a practice devoted solely to arts and entertainment contracts and related matters. Does this fact allow the lawyer to fly into Atlantic City to review and negotiate an entertainment contract at one of the casinos for a local singing group he has never represented before? Such work, it can be argued, is "reasonably related" to the lawyers California practice and therefore permissible under the Commission's proposed rule.
We are concerned that the Commission's rule would open transactional practice in New Jersey to any lawyer who claims a specialty in any given practice area, just as it may be argued that the ABA's Model Rule 5.5 creates something akin to a national law license for transactional practitioners. RPC 5.5 needs to provide clear definitions and standards for temporary practice in New Jersey so that the practical effect of the rule does not result in the avoidance of bar admission standards and lawyer regulatory rules.
The NJSBA therefore favors the approach taken by the Wallace Committee that distinguishes two forms of transactional practice. The first (see proposed RPC 5.5 (b)(3)(i)) covers limited New Jersey activity related to negotiation involving an existing client, that originates in or is related to the jurisdiction where the lawyer is licensed to practice. The second (see (b)(3)(iv)), a "catch-all" provision, covers all other types of transactional practice on behalf of an existing client in the jurisdiction where the lawyer is admitted, provided the law practice performed in New Jersey is "occasional and is undertaken only when the lawyer's disengagement would result in substantial inefficiency, impracticality or detriment to the client."
The NJSBA believes the Wallace Committee provisions will provide clearer guidance for lawyers and will maintain appropriate restrictions that prevent unlimited cross-border transactional practice. As noted above in the discussion on ADR practice, by requiring the representation be on behalf of an existing client, and keying to the transaction, rather than just the "practice" (as in the Commission's proposal) the rule would tighten what appears to be a sizeable "open door" in the Commission rule that would permit lawyers from other states to come here to handle almost any transactional matter, so long as it is related to the lawyers "practice."
4. Full-Time Practice by Certain Non-Admitted Lawyers
Both the Pollock Commission and Wallace Committee rules recognize and permit the activities of lawyers who work here full-time, but are admitted in other jurisdictions-a) in-house counsel, and b) lawyers permitted to practice by federal law. The Commission amendment governing in-house counsel reflects current practice pursuant to Opinion 14 of the Supreme Court's Unauthorized Practice of Law Committee. (See proposed RPC 5.5 (d)(1)).
The Wallace Committee suggests that the Court permit an in-house counsel admitted to practice in another U.S. jurisdiction to apply for a "limited license" to practice law in New Jersey solely for the employer. This novel approach is similar in result to the Pollock Commission's codification of Opinion 14; however, it obviously confers upon in-house counsel the added benefit of formal licensure, albeit on a limited basis.
The NJSBA supports the Wallace Committee proposal, but has some concerns that lead us to suggest further amendments designed to provide oversight. We fear that limited licensure has some potential for abuse (e.g. lawyers holding themselves out as fully licensed, or making appearances in certain tribunals). Therefore, the NJSBA suggests that lawyers holding a limited license file annually a certification with the Supreme Court stating that the lawyer is still employed in an in-house capacity and recognizes the practice boundaries imposed by the limited license. Further, the NJSBA suggests that RPC 5.5 (b)(4), as proposed by the committee, be amended to prohibit not only appearances by in-house counsel before "any courts of this state", but also appearances before "any quasi-judicial bodies of this state." This amendment would reflect Opinion 14.
5. Other Requirements
The NJSBA also recommends that RPC 5.5 require all lawyers who act in this jurisdiction a) be licensed and in good standing in all jurisdictions of admission, b) be subject to the disciplinary rules and jurisdiction of the Supreme Court of New Jersey, and c) consent to the appointment of the Clerk of the Supreme Court as agent for service of process.
It is important that the public be protected from lawyers who have failed to live up to their professional obligations, and that out-of-state lawyers understand that they are subject to the disciplinary authority of the Supreme Court of New Jersey and, if the need arises, subject to service through the Clerk.
6. Adoption of MJP Rules By Other States
The NJSBA's final recommendation regarding MJP is that if the New Jersey Supreme Court adopts amendments to Rule 5.5 that the amendments become effective only when other jurisdictions, particularly our neighbors, do likewise. New Jersey should not be the only state in the region with such a rule. This result would benefit colleagues in other jurisdictions while leaving our own bar to deal with the vagaries of unauthorized practice rules and customs found in nearby states.
This new rule, first proposed by the ABA and endorsed by the Pollock Commission, would relax conflict of interest rules for lawyers who provide "short-term limited legal services" under the auspices of a legal services program without the expectation of a continuing representation (e.g. legal advice telephone hotlines, advice only clinics, or pro se counseling seminars). Because in such circumstances a participating lawyer could not screen for conflicts, the lawyer would be required to adhere to the conflict rules only if the lawyer knows a conflict exists.
The NJSBA supports the rule in concept, but recommends to the Court that the proposed rule be clarified so that lawyers are certain about its application. The Commission report supplies some definition but the rule itself is lacking, particularly regarding the meaning of the phrase "short term legal services" and its application to activities such as clinics, panels, and other events such as one day meetings or seminars.
The NJSBA supports the Commission's proposed amendments to the rule governing lawyer advertising, that would:
permit electronic advertising via the "internet or electronic medium"
eliminate the current prohibition against drawings, animation, dramatization, music or lyrics, and requiring such advertisements conform to Rule 7.1 concerning false and misleading communications. The Commission report states that this amendment arises from concerns about the constitutionality of the current ban on such ads, and the fact there have been no ethics prosecutions for violations of the rule.
The NJSBA agrees with the conclusion of the Pollock Commission that a wider variety of advertising techniques should be permitted, so long as the content is not false or misleading.
The Pollock Commission recommends that New Jersey retain its current rule (containing much more detailed guidelines than the ABA Model rule) but adopt amendments that would clarify the prohibition against in-person, telephone, or "real-time" contact with prospective clients unless the person contacted is another lawyer, has a professional relationship with the lawyer making the contact, or is a governmental or business entity.
The proposed amendments would also amend the "30 day rule" by permitting businesses and government entities (but not individuals) to be solicited after mass disaster events.
The NJSBA, however, sees no reason to amend current paragraph (a) which permits solicitation generally when not in response to a specific event. Further, we oppose the proposed amendment in paragraph (b) that would permit solicitation of businesses after mass disaster events because of a concern about protecting small businesses, such as those run by individuals or families. These business owners should be afforded the same protection under the "30 day rule" as are individuals. The NJSBA has no objection to the amendment that permits solicitation of government entities after mass disaster events.
The NJSBA agrees with the Pollock Commission's recommendation that patent and admiralty lawyers be allowed to communicate their certification as a specialist in those fields, despite the fact that such certification comes from an entity other than the Supreme Court of New Jersey or an organization approved by the ABA (as the current rule requires for the communication of specialties).
An important aspect of the debate over MJP is the discipline of lawyers who may run afoul of ethics rules while providing legal services temporarily in jurisdictions where they are not admitted. The Pollock Commission recommends that Rule 8.5 be amended to make it clear that any lawyer providing legal services here on a temporary basis is bound by New Jersey's RPCs and disciplinary jurisdiction. The NJSBA concurs.
An issue left open in State v. Clark, 162 NJ 201 (2000) is the extension to members of a municipal prosecutor's law firm the disqualification of the municipal prosecutor from criminal defense work in the county. The Pollock Commission recommends that the disqualification not extend to the firm except to prohibit criminal defense work in the municipality where the prosecutor serves, or that involves law enforcement personnel and other material witnesses from that municipality. The NJSBA agrees with this recommendation.
The Wallace Committee recommends that an attorney who has been admitted to practice in another jurisdiction may be admitted to the bar of New Jersey on motion if the attorney meets certain criteria including having been previously engaged in "the practice of law" for five out of the past seven years.
The Wallace Committee therefore suggests that the experience of an attorney is a satisfactory replacement for taking the bar examination and that the bar examination, at least for an experienced lawyer, is not a paramount indicator of an attorney's capacity to practice law in New Jersey.
The Pollock Commission recommends no action on the admission on motion proposal suggested by the ABA, pending New Jersey's experience with a proposed MJP rule and abolition of the "in state" bona fide office requirement (as suggested by the Commission).
The NJSBA opposes admission on motion. The proposal contemplates that any graduate of an ABA approved law school who has passed a bar examination and practiced law for five out of the last seven years in another jurisdiction, no matter how different the standards for admission, or how different the law and practice may be in that jurisdiction, should be entitled to be admitted to the bar on motion in New Jersey. In short, the proposal creates a national ticket for admission in New Jersey.
The NJSBA's concerns are not parochial, or based on protectionism. Regulation of the practice of law, including admission standards, is not for the purpose of providing lawyers with a monopoly on certain activities. Regulation exists to protect the public from being harmed by persons who have not demonstrated their competence to protect the public interest in performing the critical functions exclusively entrusted to those licensed to practice law. Matter of Education Law Center, Inc. 86 NJ 124 (1981). The Supreme Court has established appropriate criteria for admission to practice law in this State-including the passage of the bar exam-which would be ignored for some bar applicants if this proposal were adopted.
While taking the bar exam may indeed be an inconvenience to the very few attorneys compelled by various circumstances to move to New Jersey and who genuinely intend to practice primarily in this jurisdiction, the bar examination, coupled with graduation from an accredited law school, remains the primary objective standard of competence to assure that lawyers licensed to practice in this State meet the Supreme Court's high standards. It is clear that the examination has not been a deterrent to the licensure of the more than 70,000 lawyers admitted to practice in New Jersey.
The Wallace Committee concluded that admission on motion "is likely to enrich the practice of law in this State, not diminish it, by increasing the available pool of knowledgeable attorneys." Perhaps in 1983, when the Jacobs' Committee reached a similar conclusion, there were some who believed that there were not a sufficient number of skilled attorneys to fill the need for legal services in this State, but surely no one could believe that today. New Jersey should not eliminate the quality assurance of the bar examination and risk licensing less competent lawyers because of the incidental and questionable public benefit that might conceivably be gained by allowing wholesale evasion of New Jersey's traditional standards for admission by examination.
The Wallace Committee recommendation that admission on motion be denied to anyone who failed the New Jersey Bar examination in the past seven years speaks eloquently to the issue. Obviously, the committee does not have confidence that passing an examination in another jurisdiction and five years of practice is a sufficient assurance of the competence of those who failed our exam. It demonstrates an awareness that candidates who cannot meet New Jersey's standards are likely to be licensed elsewhere, yet proposes that lawyers who would have failed in New Jersey had they taken the exam here at the same time, be admitted on motion. The Wallace Committee also suggests the proposal "offers advantages to New Jersey's existing lawyers, since they will be able to utilize reciprocal opportunities for admission to practice in other States that were denied them in the past."
The NJSBA is mindful of the needs and concerns of our colleagues, be they reluctant transferees to New Jersey, or New Jerseyans who would like to practice elsewhere without having to comply with bar examination requirements. We cannot, however, fail to forget that bar admission criteria can only be rationally based on demonstrated competence and commitment to the jurisdiction, whatever the incidental benefit or detriment to lawyers who practice here, or would like to. The very discussion of reciprocity as a virtue of this proposal demonstrates a significant deviation from such criteria. Clearly, reciprocity is not a competence criterion.
Let us assume for the sake of discussion that jurisdictions A and B share a common 100-mile border, both have adopted modern Rules of Civil Procedure mirroring the Federal Rules, as well as most of the Uniform Laws, and are otherwise quite similar in their law, practice and procedure. State B permits admission on motion only from applicants whose States grant reciprocity. State A does not permit admission on motion. Let us further assume that State C is 2,000 miles away and is essentially a civil law jurisdiction with virtually no statutes or procedure having anything in common with State B, except that like State B it permits attorneys to be admitted on motion if they come from a State with reciprocity. State B would bar the attorney from State A who is probably most qualified to practice in State B, but would accept for admission and turn loose upon the unsuspecting public, the attorney from State C, not because the attorney has demonstrated knowledge or understanding of State B's practice and procedure but solely because State C will accommodate the desires of attorneys from State B to be admitted there on motion. There is no semblance of protection of the public interest; the requirement of reciprocity reveals the naked truth that State B's interest is that its attorneys be equally free to practice in State C. That apparent disregard of the public interest, solely in the interest of facilitating admission of lawyers from states that grant reciprocity, lends no weight or credibility to the argument in favor of admission on motion.
The NJSBA also finds it difficult to understand why most of the Wallace Committee's discussion of admission on motion focuses on case law precedent relating to the exclusion of non-resident attorneys. New Jersey does not require, and no one has suggested for many years, that a candidate for admission to the New Jersey Bar need be a New Jersey resident. While there are undisputed virtues to lawyers living in the State where they are licensed, and particularly in maintaining offices in the State where they are licensed (which will be discussed elsewhere in this report), those are issues separate and apart from an objective test of competence through a Bar examination.
The ABA, in the course of approving a Model Rule on multi-jurisdictional practice, rejected calls for a national licensing scheme. Those opposing forms of national licensure argued correctly that a) lawyers not otherwise meeting a State's admission criteria might misjudge their ability to provide services in that jurisdiction, b) disciplinary agencies might not be able to regulate out-of-state lawyers as effectively, and c) lawyers admitted in the State with the lowest admission criteria could then practice anywhere. It was also suggested that a lawyer from a neighboring State could not be expected to have the same commitment to important aspects of the practice, including pro bono representation, participation in the organized bar and community and working to improve the legal system.
After considering these arguments, the ABA Commission on Multijurisdictional Practice concluded at page 9 of its report:
Jurisdictional restrictions promote a variety of state regulatory interests. Most obviously, by limiting law practice in the state to those whom the state judiciary, through its admissions process, has deemed to be qualified to practice law in the state, they promote the state interest in ensuring that those who represent clients in the state are competent to do so. Jurisdictional restrictions also promote the state interest in ensuring that lawyers practicing law within the state do so ethically and professionally. Lawyers licensed by the state are thought to be more conversant than out-of-state lawyers with state disciplinary provisions as well as with unwritten but understood expectations about how members of the local bar should behave, and lawyers in the state may be disciplined more easily and effectively than out-of-state lawyers when they engage in professional improprieties. By strengthening lawyers' ties to the particular communities in which they maintain their offices (obviously assuming that attorneys will have an office in the jurisdiction), jurisdictional restrictions may also help maintain an active and vibrant local bar, which in many communities serves a crucial public role, because lawyers serve voluntarily on court committees, in public office, and on boards of not-for-profit institutions in the community.
Of course, in the case of adjoining States, creating admission on motion obviates all of the subtleties of dealing with the issues of temporary and occasional practice engendered by the debate over MJP. By the simple expedience of the motion and an annual fee and other limited requirements, the lawyer from any jurisdiction is given carte blanche to practice in the jurisdiction where so admitted. There can be no doubt that admission on motion is a good thing for some lawyers. They cannot be faulted for seeking to make their lives easier by avoiding a bar exam and the problems of rules governing temporary and occasional practice. But, where might that leave unsuspecting clients that retain these lawyers?
The Wallace Committee proposal does not explicitly require that a lawyer admitted on motion open an office in New Jersey. It simply requires that a "bona fide office" be maintained. Also, a lawyer so admitted would have to certify for five years that he "practiced law in New Jersey on an active and regular basis." The lawyer would also have to show only that he had "been reasonably accessible to the courts, to clients and to other parties during the preceding year…" Thus, the proposed rule may be utilized by lawyers anywhere in the country, not just practitioners from neighboring states. A lawyer in Seattle could be admitted here on motion, handle a few matters for New Jersey clients and be "reasonably accessible" to clients and others by telephone and fax. This may satisfy those who believe that technology has made current state regulation lawyers outmoded. But, this is not the direction where the NJSBA believes the practice of law should be headed.
It is only when admission on motion is viewed from the perspective of the public interest that it becomes readily apparent that there is virtually no public interest in diluting New Jersey's criteria for admission to the practice of law. The public has a right to expect that any lawyer licensed to practice in New Jersey has met the State's criteria and is familiar with New Jersey law, procedures, rules and customs. It is a small comfort to the public, which may be charged excessive fees because the lawyer is unfamiliar with these things and therefore takes longer to perform a routine function or which is the victim of malpractice, that it has recourse to fee arbitration or malpractice litigation. If that were adequate protection for the public, there would be no need to license attorneys before turning them loose on the unsuspecting public.
In short, admission on motion does not solve any existing problem, but it would create unnecessary risks to the public interest, defeating the rationale for and the essence of lawyer licensing.
The Wallace Committee recommends that foreign-educated lawyers, and graduates of non-accredited law schools, be permitted to take the New Jersey bar exam if they have been admitted in another U.S. jurisdiction, have "actively practiced law" for five of the last seven years, and meet other limited criteria. Presently, the New Jersey court rules permit only lawyers who have graduated from an ABA approved law school to sit for the bar examination. Rule 1:21-9 also allows foreign lawyers to be certified as foreign legal consultants.
The NJSBA opposes the Wallace Committee recommendations because they would reverse long-standing bar admission policy that has well served the public interest, and the bar of this state.
Permitting Foreign Educated Lawyers to Take the Bar Exam
We believe that the disparity in the quality and scope of foreign legal education makes it impossible to determine whether a foreign-educated lawyer has received adequate training and foundation in the law to practice here, even after passage of the bar exam. In its report, the Wallace Committee aptly addressed our precise concern with the proposed rule:
Legal education, at a foreign, English-speaking university teaching English common law in countries such as Canada, the United Kingdom and Australia may be a rough equivalent of American legal education and would probably satisfy most concerns about having the fundamentals necessary to practice in the United States. At the other end of the spectrum, a non-English speaking foreign university teaching civil law would not appropriately prepare one to practice here. The problem lies, however, in where to draw a line that assures adequate training without being discriminatory (See p 22-23).
Moreover, the applicant may have practiced law in a jurisdiction with quite different law and procedure than is found in New Jersey, thus making the value of the applicant's five to seven year practice experience of questionable value.
The NJSBA believes that the only solution that "assures adequate training" for foreign lawyers is to require them to graduate from a U.S. law school prior to sitting for the New Jersey bar exam, which is the same requirement that faced the more than 70,000 lawyers admitted to practice in this state. If the Court were to adopt this rule, quite possibly, a lawyer from an inferior or unknown foreign law school could sit for the New Jersey bar exam and conceivably pass but nonetheless be incapable of providing competent legal representation to the public. It is the innocent citizens of the state who will pay the ultimate price of the unqualified lawyers' handling of his or her legal matters.
This fear of harm to the public outweighs any benefit that might be gained from permitting a foreign-educated lawyer who graduates from a nationally recognized foreign law school to sit for the bar exam. We have supported permitting lawyers admitted to practice law in foreign countries to perform services for a U.S. client pursuant to R. 1:21-9, the foreign legal consultants rule, but we must draw the line there. See In re Dalena, 157 NJ 242 (1999) setting forth the boundaries of permissible activity by foreign lawyers.
It is interesting to note that although the committee proposals would permit foreign educated lawyers and graduates of non-accredited law schools to gain licensure in New Jersey, the proposed application process and criteria to be met are far less rigorous than now required under the foreign legal consultant rule (even though the latter would also have to show law practice for a 5 to 7 year period in the nation of admission to the bar).
Permitting Graduates of Non-Accredited Law Schools to Take the Bar Exam
The Wallace Committee also recommends that a United States-educated attorney who graduates from a non-ABA accredited law school be eligible to take the New Jersey bar exam if the attorney has been admitted to practice law by examination in another jurisdiction of the United States and has practiced law for five of the last seven years in a United States jurisdiction and meets certain other requirements.
The NJSBA opposes this recommendation which is contrary to ABA standards and long-standing Supreme Court policy. The Code of Recommended Standards for Bar Examiners (promulgated by the ABA, the National Conference of Bar Examiners and the Association of American Law Schools) provides in part:
Each applicant should be required to have completed all requirements for graduation with a J.D. or L.L.B. degree from a law school approved by the American Bar Association before being eligible to take the bar examination….
The New Jersey Supreme Court has for years prohibited graduates of law schools not accredited by the ABA from taking the bar exam. The Wallace Committee report recognizes this fact:
The American Bar Association has developed expertise and criteria for oversight of American Law Schools. The present rule requires a degree from an ABA approved law school in order to take the New Jersey Bar exam. While applicants from non-ABA approved law school presents a sympathetic case, we do not question the wisdom of the present Rule. This Committee, however, wants to provide the same opportunity for both graduates of non-ABA approved law schools and foreign law schools to sit for the New Jersey bar (See p. 23 of report).
The committee's analysis is difficult to understand. On the one hand it recognizes the "wisdom" of the current rule. On the other, it recommends ignoring that rule in favor of a much more liberal approach, one that the NJSBA contends is ill-advised.
The NJSBA believes that the current rule permitting only graduates of ABA approved law schools to sit for the NJ bar exam provides an essential level of protection to the public. By maintaining the current rule, New Jersey citizens can have confidence that every applicant who sits for the NJ bar exam has graduated from an approved law school that has met specific educational and curriculum standards, has qualified faculty members, adequate library facilities and mainstream policy and administrative procedures. If the proposed amended rule is adopted, it would permit persons to sit for the bar exam regardless of the quality of the law school attended. There is simply no reason to abandon the present rule that ensures the quality of legal education of our bar applicants.
The Wallace Committee proposals contradict established and highly beneficial Supreme Court policy and should be rejected by the Court.
The Wallace Committee and Pollock Commission recommend a significant change in court Rule 1:21-1(a), known as the bona fide office rule. The proposed rule amendments would permit a member of the New Jersey bar, in good standing, to practice here if the lawyer has "a bona fide office in this State or in another state." The Pollock Commission further proposes that a lawyer with an out-of-state office be required to inform all clients of "how, when, and where the lawyer is accessible, and where files are kept." See proposed RPC 1.4. The Commission report , however, does not set forth an analysis of the rule or why it should be discarded.
The Wallace Committee report sets forth four reasons for the recommended rule change:
The current rule "does not recognize that technology, when used effectively, can substitute for proximity" and that a lawyer's office in a neighboring state may be as accessible to clients as an office in New Jersey.
The rule may be "constitutionally suspect" as a result of a gradual "relaxation of residency and office requirements" evidenced by Tolchin v. Supreme Ct. of the State of New Jersey, 111 F.3d 1099 (3d Cir. 1997).
The rule is unique and "does not fall within the mainstream of other states' supervisory schemes."
Adoption of the committee's proposal would moot the challenge to the rule undertaken by the Philadelphia Bar Association.
The NJSBA recommends maintenance of the current bona fide office rule because it serves the best interests of New Jersey's residents, legal community, and judiciary. Among other things, it assures accessibility and accountability for the benefit of clients, the courts, adversaries and parties. Equally as important, the rule also assures that all attorneys practicing in New Jersey have a commitment to this state and its legal community.
New Jersey's office and residency requirements for lawyers came under court scrutiny beginning in 1982, when the Supreme Court of New Jersey in the face of a challenge to its existing R. 1:21-1(a), amended the rule which had required out-of-state attorneys wishing to practice in New Jersey to maintain their "principal office" in this state. In Re Sackman, 90 N.J. 521 (1982). The amended rule simply required that any attorney (resident or non-resident) admitted to the New Jersey bar who wished to practice law here must maintain a bona fide office in New Jersey. In doing so, the Supreme Court again acknowledged its inherent right to promulgate rules for the admission of New Jersey attorneys to the bar as provided in N.J. Const. (1947), Art. VI, §II, par. 3. The challenge in Sackman, as in two more recent U. S. Supreme Court decisions, was whether the court rule violated the Privileges and Immunities Clause of Article IV, §2 of the United States Constitution. See Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988); Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).
Thirteen years later, the Supreme Court again revisited the bona fide office issue in Matter of Kasson, 141 N.J. 83 (1995) which upheld the requirement of a bona fide office, and imposed a reprimand on Kasson, not out of protectionist sentiment but "as a reasonable effort to assure competence, accessibility and accountability of attorneys for the benefit of clients, courts, counsel and parties." Id. at 87. More recently, the Third Circuit Court of Appeals in Tolchin v. Supreme Court of the State of New Jersey, 111 F.3d 1099 (3d Cir. 1997), cert. denied, 522 U.S. 977 (1997), determined that New Jersey's bona fide office requirement was rationally related to the legitimate state interests of New Jersey. Specifically, the Third Circuit concluded that "a rational relationship exists between the benefit of attorney accessibility and the bona fide office requirement." Id. at 1109.
Nevertheless, the Wallace Committee advances several reasons for the elimination of the current rule. The first posits that modern technology has made client proximity of a lawyer's office unimportant. This argument is superficially attractive but presents dangers and pitfalls for clients.
The bona fide office rule serves an important function for consumers of legal services that cannot be replaced by technology, regardless of whether the consumer may have a cell phone, computer, or other communications gadget (and many New Jerseyans have none of these). Consumers can be confident now that they will be able to obtain, from a New Jersey based lawyer, information about pending matters during normal business hours. They are assured they can drop off documents, sign papers, or be able to consult face-to-face with their lawyer if necessary. Being able to reach your lawyer in her out-of-state office by cell phone is one thing, but try telling that to an abused spouse seeking enforcement of a restraining order, a business owner seeking an injunction, or an accused facing police interrogation. Although an extreme example, a New Jersey lawyer could conceivably have a real estate closing with a lawyer in Harrisburg, Pennsylvania who is also admitted to practice here. If the latter represents a buyer of New Jersey property could the sellers and their New Jersey lawyer be forced to travel to Harrisburg for the closing?
What of the impact the proposed rule may have on less sophisticated clients who may perhaps be indigent or in trying financial circumstances? These prospective clients are often the targets of questionable business schemes (including those promising low cost legal services) that rely on slick advertising and promotions to hoodwink consumers. Needless to say, these clients may fall prey to unscrupulous legal practitioners, but if such is the case at least there is a local office and local regulatory authorities where complaints may be brought. If, however, the law firm perpetrating a fraud is in Brooklyn, or Wilmington, or Allentown, it will be that much more difficult for the client to try and address the problem.
The Wallace report focuses on the office requirement as a very limited regional problem, noting that a lawyer's office in Delaware, Pennsylvania or New York may be just as accessible to some clients as an office in New Jersey. The report further notes the proximity of New York City and Philadelphia to many New Jersey residents and courts. However, the proposed rule change is not limited to lawyers based in nearby states who also wish to practice here. Rather, a lawyer admitted in New Jersey and other jurisdictions but with an office in Boston, retained as counsel by a New Jersey resident's insurance carrier can appear and defend his New Jersey client because he has the requisite bona fide office. The fact that the client might have great difficulty meeting or communicating with his attorney in Boston, seems to be of no moment to the Wallace Committee. The proposed rule would have to apply to any lawyer admitted in New Jersey who has an office in any state.
The Wallace Committee, while recognizing that the Third Circuit, in Tolchin, upheld the bona fide office rule, uses its "virtual law office" rationale to conclude that modern technology would probably render the Tolchin decision "constitutionally suspect." However, this argument completely overlooks the fact that the only successful constitutional challenges in recent memory are the two United States Supreme Court decisions noted above. Both decisions found rules with different guidelines for practicing attorneys based on their residency unconstitutional. In fact, differential treatment was the very factor that led our Supreme Court in 1982, prior to the two United States Supreme Court decisions, to amend R.1:21 to require that every attorney who seeks to practice in this state, whether a resident of New Jersey or not, maintain a bona fide office in this state. The Privileges and Immunities Clause of the United States Constitution, not the advance of technology, determines the constitutionality of properly promulgated rules and regulations for the practice of law.
A third reason advanced by the Wallace Committee for change is the assertion that New Jersey's rule does not fall within the "mainstream" of other states' supervisory schemes. The report does not contain an exhaustive review of all states but does contain a summary of the regulations which in various ways require a law office in the jurisdiction:
- Michigan requires that an attorney wishing to be admitted on motion "intends in good faith to maintain an office in this state for the practice law."
- Delaware requires any attorney filing papers with the Supreme Court to maintain an office in Delaware;
- Indiana requires one admitted by motion to maintain his or her "primary practice" in Indiana (it was just this type of restriction that led our Supreme Court to amend its rule in 1982).
- Connecticut requires all candidates for the bar to signify their intent to practice in Connecticut and to devote the major portion of their time to the practice of law in Connecticut. Such candidates receive a "temporary license" and if they have failed to meet this requirement a year later, their license is not renewed.
- Virginia requires anyone admitted on motion to their bar to maintain an office in Virginia and their full time practice must be in that state. The activity is monitored and, if the out-of-state attorney has not met these requirements, two years later his or her license is revoked.
- Ohio requires an attorney admitted on motion to swear, under oath, that he will practice full time in Ohio for five years. If found not to be so practicing, his or her license can be revoked.
- Maryland apparently had a rule similar to New Jersey's but abandoned it due to lack of enforcement resources.
Despite the variety of rules in the listed jurisdictions, it is difficult to see how New Jersey falls outside the "mainstream" of regulations adopted in these states.
It is the NJSBA's contention that the bona fide office rule has, in fact, helped to improve the quality of the profession and spur competition by encouraging quality law firms from neighboring states to locate branch offices here. Virtually every major law firm in Pennsylvania, including Pittsburgh firms, have opened legitimate bona fide offices in the State of New Jersey, as have a number of New York firms. The NJSBA welcomes their presence. Rather than handling New Jersey matters from a Philadelphia or New York office (as may very well have been the case were it not for the current rule) these firms have put down roots here, hired New Jersey lawyers and support staff and have become vibrant additions to our legal community. The lawyers in these firms are involved in pro bono work, community activities and the organized bar (in fact, three current NJSBA trustees work in the New Jersey offices of New York and Philadelphia firms, including the Chair of the editorial board of New Jersey Lawyer magazine). These firms, and others, have made a commitment to New Jersey.
It is quite easy to formulate a position against the bona fide office rule. But, following an analysis of the benefits of the rule and the implications of its abandonment a far different picture emerges. What at first blush may seem to be an archaic vestige of protectionism is in fact a requirement that actually benefits the public interest, and helps to ensure a more responsive and accountable bar. The NJSBA is unaware of any public outcry that there are not enough lawyers in New Jersey. We have received no complaints from persons unable to find a lawyer to represent them.
If there are lawyers admitted to practice in New Jersey who nevertheless choose to practice elsewhere, that is their choice. But, if they want to practice here let them make a commitment to the state and open an office, as thousands have done. The Court should not eliminate the bona fide office rule to satisfy the hunger for clients and revenue of a few lawyers at the expense of public confidence in lawyers. The resulting meager benefit is simply not worth the price.