CSG’s Professional Liability Group is pleased to offer attorneys access, currently at no charge, to a two-part on-demand CLE worth a total of 2.0 New Jersey ethics credits (1.0 credit for each part).  As with any New Jersey CLE program, credits may be transferable to other jurisdictions with reciprocity under their particular rules.

The program is presented by David M. Dugan, a Member of the Firm and former Chair, Vice-Chair and Member of the District VA Ethics Committee of the Supreme Court of New Jersey.

The presentation is entitled “The Attorney Ethics/Disciplinary System in New Jersey: How it works, how to handle it and a little bit of how to stay out of it” and covers a wide array of material relating to how the attorney disciplinary system works in our state.  It includes the basics, highlights of the relevant rules and procedures, the make-up of our system, “pro tips” for handling investigations and hearings, research tips and other extensive materials.

If you are interested in earning these CLE credits, please email professionaldevelopment@csglaw.com to register and obtain links to the videos, as well as the PowerPoint slides and the required evaluation form to submit for CLE credit.  Please note that you will supply the passcode provided during each video in your evaluation form to receive credit.

To hear more, connect with CSG and Dave Dugan on LinkedIn and subscribe to our blog.  Please let us know if you would like us to provide this training or trainings on other ethics topics in-person.  Thank you for tuning in!

A pair of new and interesting twists in the ongoing story of lawyers resisting in-person appearances in Immigration Courts due to COVID-19 surfaced recently. First, an opinion was issued by the N.Y. State Bar Association Committee on Professional Ethics stating that an attorney could withdraw from a case if he/she had a fear of contracting COVID-19 that would interfere with effective representation. The option relied upon New York Rule of Professional Conduct 1.16 which allows withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively”. (This is analogous to New Jersey RPC 1.16 (a)(2) which states a lawyer “shall withdraw” from representation if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.) Both provisions require an application to a tribunal, if the case is before one. Immigration Court is of course a tribunal within the meaning of the RPCs. NY Eth. Op. 1203 (N.Y. St. Bar. Assn. Comm. Prof. Eth.), 2020 WL 6075825, decided October 8, 2020.

Second, the route to an attorney remaining safe during proceedings is more complex in NJ. In June, at a time when Immigration Courts were requiring in-person appearances, a 68-year-old attorney contracted COVID-19 during such a hearing and died. Thereafter another attorney was allowed to appear at a hearing virtually. The court did not, however, allow his client to appear through an independent link and required the client and lawyer to be together for the virtual proceeding. Unfortunately, the lawyer and his wife contracted COVID.

A group of lawyers, including the one who had been infected, filed for injunctive relief to force the court’s administrative body [the Executive Office for Immigration Review (“EOIR”)] to implement remote proceeding. The Court held that both the Association and the individual attorneys had standing to file the suit. Injunctive relief was denied, as being moot, because EOIR has since taken steps to arrange safe video hearings, where attorneys and their clients can appear remotely and separately. American Immigration Lawyers Association, et al. v. Executive Office for Immigration Review, et al., Civil Action No. 20-9748-JMV-JBC, decided October 16, 2020.

Verdict: pandemic pandemonium.

Every year, the Office of Attorney Ethics of the New Jersey Supreme Court produces an Attorney Disciplinary System Report. The report may be found here.

The report examines and provides detailed statistics on a number of topics relating to attorney discipline in New Jersey. How many disciplinary investigations are occurring? How many lead to complaint? How many hearings lead to discipline? What is getting attorneys in trouble these days?

If you do not want to read the entire, 67-page report, you may find the following facts to be of interest pertaining to 2019.

Case Statistics

  • 1,227 new disciplinary investigations were added (0.2% increase from 2018).
  • 1.65% of all active lawyers had grievances docketed (i.e., investigations commenced) against them.
  • The OAE filed 248 formal complaints following investigation (14.8% decrease from 2018, and note that these complaints include investigations that began in 2018 or in some cases earlier).
  • 174 attorneys had final discipline and were sanctioned by the Supreme Court (15.9% decrease from 2018). Of those:
    • 143 were final sanctions for discipline, including 27 disbarments, 12 disbarments by consent, 30 terms suspensions, 1 indeterminate suspension, 25 censures, 23 reprimands and 25 admonitions.
    • 31 were for temporary license suspensions for emergent cases.

Random Audit Compliance Program

  • 556 law firms were audited.
  • 14 attorneys were disciplined stemming from the audit.
  • 4 of those 14 attorneys were disbarred for knowingly misappropriating funds.

What Are the Most Common Grounds for Final Discipline?

First most common: “Other Money Offenses” – meaning, some type of money offense other than knowing misappropriation of client funds (including negligent or reckless misappropriation, serious trust account recordkeeping deficiencies, and failure to safeguard funds and escrow violations) (20.3%).

Second, “Knowing Misappropriation” of trust funds (15.4%).

Third, Dishonesty, Fraud, Deceit and Misrepresentation (14.7%).

Fourth, Gross Neglect/Lack of Diligence/Incompetence (7.7%).

Fifth, Conflicts of Interest (7.7%).

Sixth, Criminal Convictions (6.3%).

Tied for seventh, Unauthorized Practice of Law (including assisting a non-lawyer in doing so) and Non-Cooperation with Ethics Authorities (5.6%).

Tied for eighth, failure to protect client upon withdrawing/terminating representation and practicing law while ineligible (e.g., for filing to pay the annual attorney registration licensing fee, submitting updated IOLTA information or complying with CLE requirements) (3.5%).

Ninth, Candor Toward Tribunal (2.8%).

Tied for tenth, Conduct Prejudicial to the Administration of Justice, Lack of Communication and Failure to Supervise (1.4%).

Other Fun Facts

  • The Garden State ranks 6th in the nation in the number of attorneys admitted to practice. As of December 31, 2019, the attorney population (active and inactive) was 98,331 – one attorney for every 90 New Jersey citizens.
  • New Jersey ranks 43rd in the country (at $212) in annual attorney licensing fees charged.

A husband and wife become enmeshed in an acrimonious divorce. Nothing new there. Add in the following shocking allegation, just raised by the wife: her husband’s lawyer aided the husband in installing malware on her computer, capturing emails between the wife and her lawyer and some draft pleadings.

In a civil action for money damages, the wife alleges her husband’s lawyer knew or should have known of the malware attack, and benefitted by using the information obtained through the malware in a series of motions against the wife in the matrimonial case.

The information was obtained as a result of the husband using a device known as a “keylogger”, and transmitted a record of all the activity on his wife’s computer to himself several times an hour. The program also allegedly allowed the husband to alter emails and other documents taken from his wife’s computer. The husband then provided the altered documents to his lawyer.

During the course of the divorce, at the husband’s urging, the firm filed motions alleging that the wife committed defamation, was an unfit parent, evaded taxes, invested in a company illegally selling drugs and various other acts of misconduct, all of which the wife states were unfounded and concocted.

To complicate matters even more, the husband’s lawyer, who was chair of the matrimonial section at his law firm during the divorce, was disbarred for unrelated ethical violations. The firm is now left to defend his alleged actions, which they vigorously deny.

Takeaway? Matrimonial clients can be a handful. Litigation is sometimes conducted at a fever pitch. Lawyers have to maintain control of the clients and make sure allegations are based in fact before embroiling themselves and their firms in making claims which cannot be proven. Lawyers need to check the provenance of documents a client produces, especially those to which logic dictates the client should not have had access.

See Radcliff v. Radcliff, et al., 1:20-CV- 03369, DNJ (Filed April 3, 2020)

Every year, the New Jersey State Bar Association holds its Annual Meeting in Atlantic City. This year, for the first time ever, the Annual Meeting went virtual. Lawyers from CSG made history by participating in an ethics panel which drew the highest number of participants in the State Bar’s history.

Ronald Israel, Esq., Member,  and I were on a panel presenting “The Art of Avoiding Conflicts.” Joining us were a Presiding Chancery Judge, the Hon. Jeffrey Jablonski and a Complex Commercial Civil Division Judge, the Hon. Mary Costello, as well as a prominent criminal defense practitioner Brian Neary, Esq. (Law Offices of Brian Neary) and a well-known and well-respected family law practitioner and mediator, Grace Dennigan, Esq. (Dennigan, Cahill and Smith).

The seminar drew 992 participants from many different practice groups who were highly engaged. The interactive presentation highlighted concerns of the bar in the areas of Joint Defense Agreements, transitioning to and from private sector-public sector employment, investing in ventures with clients, and representing clients with Incapacities.

Takeaways?

Joint Defense Agreements are helpful to clients but tricky to navigate when conflicts arise. Be careful when drafting and think ahead for exit strategies.

Investing into ventures with a client requires that you scrupulously follow the Rules of Professional Conduct. Review RPC 1.8 and familiarize yourself with the “fair and reasonable” standard set forth in case law.

Clients with Incapacities present fact-sensitive challenges. Be aware of your responsibility to maintain as normal an attorney-client relationship as possible and of your obligation to protect their confidentiality. For minors, guardians may need to be appointed by the court. Check RPC 1.6 and 1.14.

Finally, transitioning between public and private employment has a few sets of guidelines to follow. Generally, see RPC 1.11 ( the “6 month rule”). But be aware of lifetime bans when your participation reaches a certain level, one-year bans for certain state officials and two-year bans on casino-related representation, all under the Uniform Ethics Code.

Be sure to check deadlines and read orders carefully, especially in today’s environment.

While once in a while, a court will take pity on you, best not to rely on the mercy of the court. In Damms v. Damms, 2020 WL 1870410, the Appellate Division, “in a close call” saved defendant’s counsel who failed to attend a Rule 4:21A arbitration (because the arbitration was mis-diaried by his office), resulting in a five million dollar award to plaintiff; failed to oppose a motion to confirm the arbitration award; and failed to timely file a notice of trial de novo, filing it one day late (because he misread the order and thought he had two more days to file it).

Despite referring to counsel’s conduct as mind-boggling and pure carelessness, both the trial court and the Appellate Division refused to place the sins of the lawyer on his client and vacated the arbitration award.

On April 10, 2020, the Pennsylvania Bar Association (“PBA”) Committee on Legal Ethics and Professional Responsibility issued Formal Opinion 2020-300, which outlines the ethical obligations for lawyers working remotely.  Lawyers must be particularly mindful of the ethical obligations identified in the Opinion in light of the shift to remote work necessitated by the COVID-19 pandemic.  Although Opinion 2020-300 only applies to Pennsylvania attorneys, attorneys licensed in all jurisdictions should heed the guidance and best practices identified in the Opinion.

The PBA issued Opinion 2020-300 following a number of questions received from attorneys, primarily involving the use of technology (e.g., email, cell phones, text messages, remote access, cloud computing, video chatting, and teleconferencing).  Accordingly, technology issues feature prominently throughout the Opinion.

In the Opinion, the PBA focused on the intersection of the recent shift to remote work throughout the legal industry and the ethical obligations set forth in Pennsylvania Rules of Professional Conduct (“RPC”) 1.1 (Competence), 1.6 (Confidentiality), 5.1 (Responsibilities of Supervising Lawyers), and 5.3 (Responsibilities Regarding Non-Lawyer Assistance).

As to RPC 1.1, the PBA stated that a “lawyer’s duty to provide competent representation includes the obligation to understand the risks and benefits of technology,” which in turn “includes the obligation to understand or take reasonable measures to use appropriate technology to protect the confidentiality of communications in both physical and electronic form.”  (Opinion, at 3).  In that regard, “attorneys must evaluate, obtain, and utilize the technology necessary to assure that their communications remain confidential.”

With respect to RPC 1.6, the PBA affirmed that an “attorney working from home or another remote location is under the same obligations to maintain client confidentiality as is the attorney when working within a traditional physical office.”  (Opinion, at 4).  Citing to comments to RPC 1.6, the PBA affirmed that “an attorney’s duty to understand the risks and benefits of technology” includes the obligation to safeguard client information against unauthorized access or disclosure.  In that regard, while working from home, a lawyer must “make reasonable efforts to ensure” that other members of the household or any visitors thereto cannot access client materials or communications.

The PBA also briefly summarized RPC 5.1 and RPC 5.3, stating that “a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm must make reasonable efforts to ensure that the firm has in effect requirements that any staff, consultants or other entities that have or may have access to confidential client information or data comply with” the RPCs “with regard to data access from remote locations and that any discussions regarding client-related matters are done confidentially.”  (Opinion, at 7).

Finally, the PBA provided some “best practices” for remote work.  Although directed to Pennsylvania attorneys, these best practices can be adapted to practices in other jurisdictions — such as New Jersey — as well.  Some “best practices” identified by the PBA in Opinion 2020-300 are:

  • Attorneys should ensure that all forms of confidential communications (including phone calls, emails, and video conferencing) remain confidential.  Be sure to create a private area to communicate privately with clients, and confirm that no one (including smart devices like Amazon’s Alexa) can hear or see those communications.  In the context of email, this may require the use of encryption.
  • When determining whether “reasonable efforts to ensure” confidentiality of client information have been made, an attorney should consider the facts of the particular circumstances, such as the sensitivity of the information, “the likelihood of disclosure if additional safeguards are not employed,” whether additional safeguards would be too difficult to implement, would be too costly, or would adversely affect the attorney’s ability to represent clients.  This analysis, again, may require the use of encryption, or might even “require avoiding the use of electronic methods or any technology to communicate with the client altogether[.]” (Opinion, at 10).  Attorneys should also consider whether their clients have imposed obligations concerning protection of their confidential information in addition to those imposed by the RPCs.
  • Attorneys should avoid using public internet or free Wi-Fi in performing work for clients or transmitting confidential or sensitive information, and should instead use a Virtual Private Network (VPN).
  • As in-person depositions and court appearances have been replaced with Zoom meetings and other forms of teleconferencing, attorneys should be mindful of whether those conferences are secure.  Meetings should not be public, but rather should require a password and a link directly to meeting participants.
  • Attorneys working from home offices should ensure their computers possess up-to-date antivirus software, avoid websites that could potentially corrupt their systems, and do not use USBs or flash drives from unknown sources.

In sum, in these unprecedented times, while navigating the new work-from-home environment, attorneys should not overlook the need to ensure that they are still mindful of their ethical obligations to their clients.

These days, more than ever, there is a yin and yang between bringing in as much revenue as possible at the risk of bringing in an unworthy client. How do we know when to say no?

Obviously, there is no one answer and it is dependent on both the needs of the lawyer and who the client is. But some tips include making sure you have the skill and knowledge to assist the client and not stray out of your skill set just because you need the money; asking for retainers and holding it until the end of the case; and considering the potential fee for the case as compared to the risks involved in taking on a new client.

Sometimes saying no may still protect you in the long run.

It is generally known and accepted that a client who sues its attorney waives the attorney-client privilege as to the alleged malpractice the client has placed at issue in the litigation.¹

The easiest examples of “at issue” waiver concern communications between the client and attorney, as well as the documents reflecting the attorney’s work in the underlying matter at issue.  But what happens when the client retains successor counsel to take over the representation and to sue the first attorney?  In the malpractice lawsuit, is the defendant-attorney entitled to obtain in discovery the communications between the client and successor counsel, and if so, to what extent?  What about communications reflecting the advice successor counsel gives the client in the underlying lawsuit if the defendant-attorney believes that advice was questionable and led to, for example, an unnecessarily bad settlement? Continue Reading Does Privilege Apply to Communications Between a Legal Malpractice Plaintiff and Its New Attorney in the Underlying Lawsuit? Caselaw Update, a Hypothetical and Some Practice Pointers to Consider for the Client, Defendant and Successor Counsel

1. Deadlines. Make sure that for any motion or deadline that is changed that the old one is deleted and the new one is circulated at least on Outlook. If there is any confusion about a deadline someone should get guidance from the judge and not assume anything. With regard to the April 27 upcoming end of the legal holiday, do not assume this will be extended. If you have something due, be prepared to file on April 27.

2. Confidentiality. If you have sensitive paperwork in your house belonging to a client do not throw it out. Save it for when you get back to the office and shred it (unless you have a personal shredder).

3. Be very careful with phishing attempts. You may not be as vigilant in catching these as you would be in the office.

4. Distractions. Do not try to read a lengthy document while cooking dinner, logging the kids into school, etc. Work during a concentrated period of time and triple check everything.

5. Do not dabble. Even if you are slow, do not take on a matter you are unfamiliar with. I would say stay in your lane, but no one is driving these days.

6. Legal advice on contracts you drafted. If you drafted a contract and a client is now asking whether they can break it because of a force majeure clause or is asking whether something is a material adverse effect, this may be a prior work conflict. What if you advise someone they can get out of a contract and a court disagrees? Have you admitted malpractice in how you drafted the contract?

You need to do what you can to minimize mistakes as best you can given the circumstances. Hopefully, these tips will be of assistance.

Stay safe.