appendix a2 1984 rules of professional conduct16, 1984, with minor editorial changes. they have been...

APPENDIX A2

1984 RULES OF PROFESSIONAL CONDUCTSUPREME COURT OF NEW JERSEY

It is ORDERED that the attached amendment to Rule 1:14, which deletes theDisciplinary Rules of the Code of Professional Responsibility and adopts theRules of Professional Conduct, is hereby adopted, to be effective September 10,1984.

For the Court: ROBERT N. WILENTZ, C.J. Dated: July 12, 1984

RULE 1:14. CODES OF ETHICSThe [Disciplinary Rules of the Code of Professional Responsibility] Rules

of Professional Conduct and the Code of Judicial Conduct of the AmericanBar Association, as amended and supplemented by the Supreme Court andincluded as an Appendix to Part 1 of these rules, shall govern the conduct ofthe members of the bar and the judges of all courts of this State.

[Where] When appropriate, the words “partnership,” “attorney” and“lawyer” shall be construed to include professional corporations for thepractice of law, as well as attorney employees, agents and shareholdersthereof, and attorneys acting as “of counsel” thereto.

Note: Source-R.R. 1:25. Canons of Professional Ethics of the American Bar Association deleted July7, 1971 and the Code of Professional Responsibility, as amended and supplemented, adopted July 7,1971 to be effective September 13, 1971; amended November 27, 1974 to be effective April 1, 1975;amended July 16, 1981 to be effective September 14, 1981; Disciplinary Rules of the Code ofProfessional Responsibility deleted and Rules of Professional Conduct as amended and supplemented,adopted July 12, 1984, to be effective September 10, 1984.

RULES OF PROFESSIONAL CONDUCTINTRODUCTION

The Supreme Court has adopted the ABA Model Rules of ProfessionalConduct, as recommended by the Supreme Court Committee on the Model Rulesof Professional Conduct (the “Debevoise Committee”) and as revised by theCourt. Among the several other recommendations taken into account by the Courtin adopting these rules were those by the New Jersey State Bar Association(NJSBA), the New Jersey Prosecutors Association, the United States Securitiesand Exchange Commission, the United States Department of Justice, and privatepractitioners.

The explanatory comments that follow each rule have not been adopted by theCourt nor should they be considered as a formal part of the rules. For assistance ininterpreting these rules, reference should be made to the official ABA Commentsand the commentary by the Debevoise Committee in its June 24, 1983 report,which appeared as a supplement to the July 28, 1983 issue of the New Jersey LawJournal.

SPECIAL NOTE: RPC 7.1 through RPC 7.5 are DR 2-101 through DR 2-105 as amended January16, 1984, with minor editorial changes. They have been renumbered consistent with the ABA ModelRule numbering scheme. The explanatory comments that accompanied the adoption of these amendedrules (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 furthernoted that the Court is in the process of preparing an additional revision to RPC 7.3 as it relates toprepaid legal services plans, to be soon published for comments in the New Jersey Law Journal.

RPC 1.1 APPENDIX A2

RPC 1.1 CompetenceA lawyer shall not: (a) Handle or neglect a matter entrusted to the lawyer

in such a manner that the lawyer’s conduct constitutes gross negligence. (b)Exhibit a pattern of negligence or neglect in the lawyer’s handling of legalmatters generally.

COMMENT TO RPC 1.1The Court, following the recommendation of the Debevoise Committee, has

retained DR 6-101 (“Failing to Act Competently”), renumbered as RPC 1.1 andentitled “Competence” rather than adopt the ABA’s Rule 1.1. As recognized bythat committee, ensuring and improving professional competence is one of themost important responsibilities of the legal profession. The use of the terms “grossnegligence” and “pattern of negligence or neglect” provides sufficiently definedstandards of prohibited conduct so as to avoid the difficulties that the more vagueABA version would create. These terms have been applied and interpreted by theCourt many times. See, e.g., In re Barry, 90 N.J. 286 (1982); In re Goldstaub, 90N.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 thisrule, the lawyer should engage in continuing legal study and education.

RPC 1.2 Scope of Representation(a) A lawyer shall abide by a client’s decision concerning the objectives of

representation, subject to paragraphs (c), (d) and (e), and shall consult withthe client as to the means by which they are to be pursued. A lawyer shallabide by a client’s decision whether to accept an offer of settlement of amatter. In a criminal case, the lawyer shall abide by the client’s decision, afterconsultation with the lawyer, as to a plea to be entered, whether to waive jurytrial and whether the client will testify.

(b) A lawyer’s representation of a client, including representation byappointment, does not constitute an endorsement of the client’s political,economic, social or moral views or activities.

(c) A lawyer may limit the objectives of the representation if the clientconsents after consultation.

(d) A lawyer shall not counsel or assist a client in conduct that the lawyerknows is illegal, criminal or fraudulent, or in the preparation of a writteninstrument containing terms the lawyer knows are expressly prohibited bylaw, but a lawyer may counsel or assist a client in a good faith effort todetermine the validity, scope, meaning or application of the law.

(e) When a lawyer knows that a client expects assistance not permitted bythe Rules of Professional Conduct or other law, the lawyer shall advise theclient of the relevant limitations on the lawyer’s conduct.

COMMENT TO RPC 1.2The Court has adopted the recommendation of the Debevoise Committee,

except to add to paragraph (d) the proscription against an attorney counseling orassisting a client in conduct that the attorney knows is illegal (rather than justeither “criminal or fraudulent”). This rule thus emphasizes that no attorney-clientprivilege or confidential relationship permits an attorney to participate in a corruptor fraudulent scheme of a client. See RPC 1.6.

RPC 1.3 DiligenceA lawyer shall act with reasonable diligence and promptness in

representing a client.

1984 RULES OF PROFESSIONAL CONDUCT RPC 1.5

COMMENT TO RPC 1.3As recommended by the Debevoise Committee, the Court adopts ABA Model

Rule 1.3, requiring an attorney to act with promptness and diligence inrepresenting a client. Within the limits of professional discretion, the lawyer“should act with commitment and dedication to the interests of the client and withzeal in advocacy upon the client’s beha1f” (ABA Comment).

RPC 1.4 Communication(a) A lawyer shall keep a client reasonably informed about the status of a

matter and promptly comply with reasonable requests for information.(b) A lawyer shall explain a matter to the extent reasonably necessary to

permit the client to make informed decisions regarding the representation.

COMMENT TO RPC 1.4As recommended by the Debevoise Committee, the Court has adopted ABA

Model Rule 1.4 requiring that an attorney keep clients reasonably informed as tothe status of their matters and requiring the attorney to comply promptly withrequests for information. The rationale for this requirement is obvious: clientsmust be sufficiently informed to be able to participate actively in the decisions thatare made during the course of the representation (including such dispositionaldecisions as offers of settlement in civil litigation or plea bargains in criminalprosecution). See RPC 1.13, RPC 1.14.

RPC 1.5 Fees(a) A lawyer’s fee shall be reasonable. The factors to be considered in

determining the reasonableness of a fee include the following:(1) the time and labor required, the novelty and difficulty of the questions

involved, and the skill requisite to perform the legal service properly; (2) thelikelihood, if apparent to the client, that the acceptance of the particularemployment will preclude other employment by the lawyer; (3) the feecustomarily charged in the locality for similar legal services; (4) the amountinvolved and the results obtained; (5) the time limitations imposed by theclient or by the circumstances; (6) the nature and length of the professionalrelationship with the client; (7) the experience, reputation, and ability of thelawyer or lawyers performing the services; (8) whether the fee is fixed orcontingent.

(b) When the lawyer has not regularly represented the client, the basis orrate of the fee shall be communicated in writing to the client before or withina reasonable time after commencing the representation.

(c) A fee may be contingent on the outcome of the matter for which theservice is rendered, except in a matter in which a contingent fee is prohibitedby law or by these rules. A contingent fee arrangement shall be in writing andshall state the method by which the fee is to be determined, including thepercentage or percentages that shall accrue to the lawyer in the event ofsettlement, trial or appeal, litigation and other expenses to be deducted fromthe recovery, and whether such expenses are to be deducted before or afterthe contingency fee is calculated. Upon conclusion of a contingent fee matter,the lawyer shall provide the client with a written statement stating theoutcome of the matter and, if there is a recovery, showing the remittance tothe client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect: (1)any fee in a domestic relations matter, the payment or amount of which iscontingent upon the securing of a divorce or upon the amount of alimony or

RPC 1.6 APPENDIX A2

support, or property settlement in lieu thereof; or (2) a contingent fee forrepresenting a defendant in a criminal case

(e) Except as otherwise provided by the Court Rules, a division of feesbetween lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer,or, by written agreement with the client, each lawyer assumes jointresponsibility for the representation and

(2) the client consents to the participation of all the lawyers involved; and(3) the total fee is reasonable.

COMMENT TO RPC 1.5

The Court adopts ABA Model Rule 1.5 with certain revisions, most of whichwere recommendations of the Debevoise Committee. The communication to theclient regarding the basis or rate of fee as required in paragraph (b) must be inwriting (rather than “preferably in writing”). See R. 1:21-7A. The limitation on thepermissibility of contingent fee arrangements contained in paragraph (c) isbroadened to provide for prohibitions “by law or by these rules.” As to guidelinesfor contingent fees, see R. 1:21-7, as amended January 16, 1984. The limitationon division of fees as set forth in paragraph (d) is qualified by “except as otherwiseprovided by the Court Rules.” See R. 1:39.

The eight enumerated factors in paragraph (a) to be considered in determiningthe reasonableness of a fee correspond nearly verbatim to those previouslycontained in DR 2-106. As to contingent fees, the proscription continues againsttheir use in criminal or domestic relations matters. For the fee dispute resolutionstructure, see R. 1:20A. See also RPC 5.4.

RPC 1.6 Confidentiality of Information(a) A lawyer shall not reveal information relating to representation of a

client unless the client consents after consultation, except for disclosures thatare impliedly authorized in order to carry out the representation, and exceptas stated in paragraphs (b) and (c).

(b) A lawyer shall reveal such information to the proper authorities as soonas, and to extent the lawyer reasonably believes necessary, to prevent theclient (1) from committing a criminal, illegal or fraudulent act that the lawyerreasonably believes is likely to result in death or substantial bodily harm orsubstantial injury to the financial interest or property of another; (2) fromcommitting a criminal, illegal or fraudulent act that the lawyer reasonablybelieves is likely to perpetrate a fraud upon a tribunal.

(c) A lawyer may reveal such information to the extent the lawyerreasonably believes necessary: (1) to rectify the consequences of a client’scriminal, illegal or fraudulent act in the furtherance of which the lawyer’sservices had been used (2) to establish a claim or defense on behalf of thelawyer in a controversy between the lawyer and the client, or to establish adefense to a criminal charge, civil claim or disciplinary complaint against thelawyer based upon the conduct in which the client was involved; or (3) tocomply with other law.

(d) Reasonable belief for purposes of RPC 1.6 is the belief or conclusion ofa reasonable lawyer that is based upon information that has some foundationin fact and constitutes prima facie evidence of the matters referred to insubsections (b) or (c).


COMMENT TO RPC 1.6The rule adopted here differs significantly from both the ABA Model Rule 1.6

and the Debevoise Committee recommendation.(1) Affirmative DutyThe Debevoise Committee intended this rule to impose an affirmative duty on

the lawyer to speak out in regard to the enumerated contemplated acts of the clientas opposed to the abrogation of the attorney-client privilege during an actualjudicial proceeding where the lawyer is testifying. This conclusion is borne out bythe comment of the ABA Commission on Evaluation of Professional Standards(“the Kutak Commission”) (as adopted by the ABA), which explicitlydistinguishes the limited historical context of the attorney-client privilege from theexpanded context of the proposed rule: The attorney-client privilege applies injudicial and other proceedings in which a lawyer may be called as a witness orotherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence issought from the lawyer through compulsion of law. The confidentiality ruleapplies not merely to matters communicated in confidence by the client but alsoto all information relating to the representation, whatever its source. [ABAComment to Model Rule 1.6]

(2) Standard Governing Duty of DisclosureThe Court in In re Selser, 15 N.J. 393, 406 (1954), held an attorney, who was a

defendant in a criminal proceeding, obligated to answer questions before a grandjury seeking to elicit information communicated to him by his client, sincedeceased, in furtherance of the client’s purpose of obtaining advice as to thecommission of continuing or prospective crime. The loss of the attorney-clientprivilege was predicated on the following standard articulated by Justice Cardozoin Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L.Ed. 993, 1000(1993): “It is obvious that it would be absurd to say that the privilege could be gotrid of merely by making a charge of fraud.” To drive the privilege away, there mustbe “something to give colour to the charge”; there must be “prima facie evidencethat it has some foundation in fact.” When the evidence is supplied, the seal ofsecrecy is broken. [(Citations omitted.) Quoted in In re Selser, supra, 15 N.J. at402.]

The perception of this standard is keyed to the “reasonable lawyer” rather thanthe “reasonable person.” See also RPC 4.1.

RPC 1.7 Conflict of Interest: General Rule(a) A lawyer shall not represent a client if the representation of that client

will be directly adverse to another client unless: (1) the lawyer reasonablybelieves that representation will not adversely affect the relationship with theother client; and (2) each client consents after a full disclosure of thecircumstances and consultation with the client, except that a public entitycannot consent to any such representation.

(b) A lawyer shall not represent a client if the representation of that clientmay be materially limited by the lawyer’s responsibilities to another client orto a third person, or by the lawyer’s own interests, unless: (1) the lawyerreasonably believes the representation will not be adversely affected; and (2)the client consents after a full disclosure of the circumstances andconsultation with the client, except that a public entity cannot consent to anysuch representation. When representation of multiple clients in a singlematter is undertaken, the consultation shall include explanation of the

RPC 1.8 APPENDIX A2

implications of the common representation and the advantages and risksinvolved.

(c) This rule shall not alter the effect of case law or ethics opinions to theeffect that: (1) in certain cases or categories of cases involving conflicts orapparent conflicts, consent to continued representation is immaterial, and (2)in certain cases or situations creating an appearance of impropriety ratherthan an actual conflict, multiple representation is not permissible, that is, inthose situations in which an ordinary knowledgeable citizen acquainted withthe facts would conclude that the multiple representation poses substantialrisk of disservice to either the public interest or the interest of one of theclients.

COMMENT TO RPC 1.7The Court has revised subparagraphs (a) (2) and (b)(2) of the recommendation

of the Debevoise Committee so as to preserve New Jersey’s rule that a governmentagency cannot consent to representation if a conflict of interest exists or if theappearance of such a conflict exists. Thus, if there is a conflict that can only becured by consent and if a governmental entity is one of the parties that mustconsent, that conflict cannot be avoided and representation of one or more of theclients must be terminated.

The Court has added a paragraph (c) that preserves the effect of New Jerseycase law and ethics opinions to the effect that consent to representation orcontinued representation is immaterial in certain cases or categories of cases whenfaced with conflicts or apparent conflicts. See, e.g., State v. Bellucci, 81 N.J. 531(1980) (criminal codefendants potential for conflict of interest required reversal ofconvictions and retrial); State v. Land, 73 N.J. 24 (1977) (same) In re Cohn, 46N.J. 202, 211-13 (1966) (improper here for attorney to accept retainer from clientwho was to be main witness in pending matter against another of his clients). Inthese cases in which consent will permit continued representation despite aconflict of interest, it must be an informed consent based on a “full and timely”disclosure of the conflict. In re Dolan 76 N.J. 1, 8-13 (1978); In re Kamp, 40 N.J.588, 595-96 (1963) see also In re Nichols, 95 N.J. 126, 131 (1984) (transactionsbetween attorney and client); In re Gavel, 22 N.J. 248, 262 (1956) (same).

The court has also included language in new paragraph (c) so as expressly topreserve in New Jersey the “appearance of impropriety” rule. See, e.g., In reGarber, 95 N.J. 597, 609-10 (1984); Reardon v. Marlayne, Inc., 83 N.J. 460, 470(1980); Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366, 373(1980); Higgins v. Advisory Committee on Professiona1 Ethics, 73 N.J. 123, 128-29 (1977). That “appearance” rule “is intended to instill public confidence in theintegrity of the legal profession.” In re Opinion No. 415, 81 N.J. 318, 323 (1979);see id. at 323-24.

RPC 1.8 Conflict of Interest: Prohibited Transactions(a) A lawyer shall not enter into a business transaction with a client or

knowingly acquire an ownership, possessory, security or other pecuniaryinterest adverse to a client unless (1) the transaction and terms in which thelawyer acquires the interest are fair and reasonable to the client and are fullydisclosed and transmitted in writing to the client in manner and terms thatshould have reasonably been understood by the client, (2) the client is advisedof the desirability of seeking and is given a reasonable opportunity to seek theadvice of independent counsel of the client’s choice on the transaction, and (3)the client consents in writing thereto.


(b)A lawyer shall not use information relating to representation of a clientto the disadvantage of the client unless the client consents after consultation.

(c) A lawyer shall not prepare an instrument giving the lawyer or a personrelated to the lawyer as parent, child, sibling or spouse any substantial giltfrom a client, including a testamentary gift, except where the client is relatedto the donee.

(d) Prior to the conclusion of representation of a client, a lawyer shall notmake or negotiate an agreement giving the lawyer literary or media rights toa portrayal or account based in substantial part on information relating tothe representation.

(e) A lawyer shall not provide financial assistance to a client in connectionwith pending or contemplated litigation, except that: (1) a lawyer mayadvance court costs and expenses of litigation, the repayment of which maybe contingent on the outcome of the matter; and (2) a lawyer representing anindigent client may pay court costs and expenses of litigation on behalf of theclient.

(f) A lawyer shall not accept compensation for representing a client fromone other than the client unless: (1) the client consents after consultation; (2)there is no interference with the lawyer’s independence of professionaljudgment or with the lawyer-client relationship and (3) information relatingto representation of a client is protected as required by RPC 1.6.

(g) A lawyer who represents two or more clients shall not participate inmaking an aggregate settlement of the claims or against the clients, or in acriminal case an aggregated agreement as to guilty or no contest pleas, unlesseach client consents after consultation, including disclosure of the existenceand nature of all the claims or pleas involved and of the participation of eachperson in the settlement.

(h) A lawyer shall not make an agreement prospectively limiting thelawyer’s liability to a client for malpractice unless (1) the client fails to act inaccordance with the lawyer’s advice or refuses to permit the lawyer to act inaccordance with the lawyer’s advice and (2) the lawyer neverthelesscontinues to represent the client at the client’s request. Notwithstanding theexistence of those two conditions the lawyer shall not make such anagreement unless permitted by law and the client is independentlyrepresented in making the agreement. A lawyer shall not settle a claim forsuch liability with an unrepresented client or former client without firstadvising that person in writing that independent representation isappropriate in connection therewith.

(i) A lawyer related to another lawyer as parent, child, sibling or spouseshall not represent a client in a representation directly adverse to a personwho the lawyer knows is represented by the other lawyer except upon consentby the client after consultation regarding the relationship.

(j) A lawyer shall not acquire a proprietary interest in the cause of actionor subject matter of litigation the lawyer is conducting for a client, except thatthe lawyer may: (1) acquire a lien granted by law to secure the lawyer’s feeor expenses, (2) contract with a client for a reasonable contingent fee in a civilcase.

(k) The provisions of RPC 1.7(c) are applicable as well to situationscovered by this rule.

RPC 1.9 APPENDIX A2

COMMENT TO RPC 1.8This rule lists in detail several transactions in which an attorney may not

participate since they would constitute conflicts of interests. With certain revisionsthe Court has adopted the recommendation of the Debevoise Committee.Subparagraph (a) (2) is revised so that in such situations an additionalprecondition to the transaction would be informing the client as to the desirabilityof seeking the advice of independent counsel. Paragraph (h) is revised, inaccordance with NJSBA recommendations, so as to reflect language changesmade by the ABA to the Kutak Commission version and a new paragraph (k) isadded affirmatively stating that the provisions of RPC 1.7(c), added by the Court,are applicable as well to cases covered by RPC 1.8.

RPC 1.9 Conflict of Interest: Former Client(a) A lawyer who has represented a client in a matter shall not thereafter:

(1) represent another client in the same or substantially related matter inwhich the client’s interests are materially adverse to the interests of theformer client unless the former client consents after a full disclosure of thecircumstances and consultation with the former client; or representation tothe disadvantage of the former client except as RPC 1.6 would permit withrespect to a client or when the information has become generally known.

(b) The provisions of RPC 1.7(c) are applicable as well to situationscovered by this rule.

COMMENT TO RPC 1.9This rule has no DR counterpart the situations covered by it have instead been

dealt with through an interpretation of Canon 9 of the Code of ProfessionalResponsibility. The Court adopts the recommendation of the DebevoiseCommittee but adds a new paragraph (b)stating that the provisions of RPC 1.7(c),added by the Court, are applicable as well to cases covered by RPC 1.9. Paragraph(a) differs from the ABA version in that the client’s consent must be after a fulldisclosure of the circumstances and consultation with the former client.”

RPC 1.10 Imputed Disqualification: General Rule(a) When lawyers are associated in a firm, none of them shall knowingly

represent a client when any one of them practicing alone would be prohibitedfrom doing so by RPC 1.7, RPC 1.8, RPC 1.9 or RPC 2.2.

(b) When a lawyer becomes associated with a firm, the firm may notknowingly represent a person in the same firm or a substantially relatedmatter in which that lawyer, or a firm with which the lawyer was associated,had previously represented a client whose interests are materially adverse tothat person and about whom the lawyer had acquired information protectedby RPC 1.6 and RPC 1.9(b) that is material to the matter.

(c) When a lawyer has terminated an association with a firm, the firm isnot prohibited from thereafter representing a person with interestsmaterially adverse to those of a client represented by the formerly associatedlawyer unless: (1) the matter is the same or substantially related to that inwhich the formerly associated lawyer represented the client; and (2) anylawyer remaining in the firm has information protected by RPC 1.6 and RPC1.9(b), that is material to the matter.

(d) When lawyers terminate an association in a firm, none of them, nor anyother lawyer with whom any of them subsequently becomes associated, shallknowingly represent a client when doing so involves a material risk ofviolating RPC 1.6 or RPC 1.9.


(e) A disqualification prescribed by this rule may be waived by the affectedclient under the conditions stated in RPC 1.7 except where prohibited by lawor regulation, such as the prohibition against a public entity waiving anattorney conflict of interest.

COMMENT TO RPC 1.10The Court has adopted ABA Model Rule 1.10 with two revisions. One, it

adopts also paragraph (b) of the Debevoise Committee’s recommendation, thatparagraph here becoming paragraph (d). Two, the Court adopts the DebevoiseCommittee’s paragraph (c) rather than the ABA’s paragraph (d), numbering thatparagraph here as paragraph (e). Paragraph (e) permits an affected client to waivean imputed disqualification under the conditions stated in RPC 1.7 unlessprohibited by law, or, as added by the Court, by regulation. The Court in thisparagraph has stressed that a public entity is prohibited from waiving an attorneyconflict of interest.

RPC 1.11 Successive Government and Private Employment(a) Except as law may otherwise expressly permit, a lawyer shall not

represent a private client in connection with a matter (i) in which the lawyerparticipated personally and substantially as a public officer or employee, (ii)about which the lawyer acquired knowledge of confidential information as apublic officer or employee, or (iii) for which the lawyer had substantialresponsibility as a public officer or employee.

(b) An appearance of impropriety may arise from a lawyer representing aprivate client in connection with a matter that relates to the lawyer’s formeremployment as a public officer or employee even if the lawyer did notpersonally and substantially participate in it, have actual knowledge of it, orsubstantial responsibility for it. In such an event, the lawyer may notrepresent a private client, but a firm with which the lawyer is associated mayundertake or continue representation if: (1) the disqualified lawyer isscreened from any participation in the matter and is apportioned no part ofthe fee therefrom, and (2) written notice is promptly given to the appropriategovernment agency to enable it to ascertain compliance with the provisionsof this rule.

(c) Except as law may otherwise expressly permit, a lawyer serving as apublic officer or employee shall not: (1) participate in a matter in which thelawyer participated personally and substantially while in private practice ornongovernmental employment, unless under applicable law no one is, or bylawful delegation may be, authorized to act in the lawyer’s stead in thematter; or (2) negotiate for private employment with any person who isinvolved as a party or as attorney for a party in a matter in which the lawyeris participating personally or substantially.

(d) As used in this Rule, the term “matter” includes: (1) any judicial orother proceeding, application, request for a ruling or other determination,contract, claim, controversy, investigation, charge, accusation, arrest or otherparticular matter involving a specific party or parties; and (2) any othermatter covered by the conflict of interest rules of the appropriate governmentagency.

(e) As used in this Rule, the term “confidential government information”means information that has been obtained under governmental authority andthat, at the time this rule is applied, the government is prohibited by law from

RPC 1.11 APPENDIX A2

disclosing to the public or has a legal privilege not to disclose, and that is nototherwise available to the public.

COMMENT TO RPC 1.11The Court adopts paragraph (c), (d) and (e) of ABA Model Rule 1.11, but

adopts revised versions of paragraph (a) and (b).The Kutak Commission would bar a lawyer from representing “a private client

in connection with a matter in which the lawyer participated personally andsubstantially as a public officer or employee, unless the appropriate governmentagency consents after consultation.” The Kutak Commission report furtherprovides “[e]xcept as law may otherwise expressly permit, a lawyer havinginformation that the lawyer knows is confidential government information abouta person acquired when the lawyer was a public officer or employee, may notrepresent a private client whose interests are adverse to that person in a matter inwhich the information could be used to the material disadvantage of that person.”In both situations, however, the Kutak Commission would have permitted thelawyer’s firm to “undertake or continue representation” in such matter byscreening the disqualified lawyer.

By contrast the Debevoise Committee would not only bar the lawyer fromrepresenting “a private client in connection with a matter in which the lawyerparticipated personally and substantially as a public officer or employee,” but alsowould disqualify the lawyer’s firm. Similarly, the Debevoise Committee wouldbar both the lawyer and the lawyer’s firm from representing a private client aboutwhom the lawyer had acquired knowledge of confidential governmentinformation while a public officer or employee.

The United States Department of Justice filed written comments to theDebevoise Committee report “object[ing] most strenuously to the adoption of anabsolute imputed disqualification rule for law firms hiring former governmentlawyers, unless the rule includes a screening or waiver mechanism to mitigate itsunjustifiably harsh and selective impact on government lawyers.” The Departmentof Justice pointed out that the rule proposed by the Debevoise Committee wouldimpair the recruitment and retention of federal lawyers, further contending that therule proposed would “impose[ ] a significantly greater burden on Federalemployees than those set forth in the Federal post-employment statutes andregulations,” and would violate the Supremacy Clause of the United StatesConstitution. The Department concluded that it “has long been of the view thatscreening measures are ordinarily sufficient to dispel any appearance ofimpropriety in a law firm’s representation in a matter for which one of its membersis disqualified.”

The Securities and Exchange Commission, in its written comments, challengedthe conclusion of the Debevoise Committee “that screening would constitute aclear conflict of interest and the dangers for abuse are too great.”

Under existing New Jersey law, a former government employee is barred fromrepresenting a private client in connection with a matter if (1) the lawyersubstantially or personally participated in the matter while in governmentemployment, (2) acquired actual knowledge of the matter, or (3) had substantialauthority for it as a public officer or employee. Ross v. Canino 93 N.J. 402 (1983);In re Advisory Opinion No. 361, 77 N.J. 199 (1978). In those situations, thedisqualification would extend to the firm with which the lawyer was associated. Inother situations, where no actual conflict existed, disqualification of a formergovernment employee does not extend to the firm with which the lawyer is


associated. Furthermore, ultimate responsibility of a public officer or employee isnot necessarily tantamount to substantial responsibility.

The Court has adopted a paragraph (a) that would bar the representation wherethe attorney either had acquired confidential information or had had substantialresponsibility. Whether ultimate responsibility for a matter equates withsubstantial responsibility will depend on the circumstances of each case. See, e.g.,Ross v. Canino, supra, 93 N.J. at 409 (under circumstances of case, ultimateresponsibility of Attorney General for Department of Law and Public Safety didnot equate with substantial responsibility for particular investigation by Divisionof Criminal Justice.) RPC 1.11 as adopted is consistent with prior law and isintended to strike an appropriate balance of the competing interests.

RPC 1.12 Former Judge or Arbitrator or Law Clerk(a) Except as stated in paragraph (c), a lawyer shall not represent anyone

in connection with a matter in which the lawyer participated personally andsubstantially as a judge or other adjudicative officer, arbitrator, or law clerkto such a person unless all parties to the proceeding consent after disclosure.

(b) A lawyer shall not negotiate for employment with any person who isinvolved as a party or as an attorney for a party in a manner in which thelawyer is participating personally and substantially as a judge or otheradjudicative officer, or arbitrator. A lawyer serving as law clerk to a judge orarbitrator may negotiate for employment with a party or attorney involvedin a matter in which the law clerk is participating personally andsubstantially, but only after the lawyer has notified the judge or arbitrator.

(c) An arbitrator selected as a partisan of a party in a multi-memberarbitration panel is not prohibited from subsequently representing thatparty.

COMMENT TO RPC 1.12The Court has adopted the recommendation of the Debevoise Committee. That

Committee has recommended deleting the paragraph in the Kutak Commissionversion that would permit use of a screening procedure for a lawyer disqualifiedunder this rule. As to ethical constraints on the judiciary, see, e.g., Knight v.Margate, 86 N.J. 374, 386 et seq. (1981). As to the practice of law by retiredjudges, see N.J.SA. 43:6A-13.

RPC 1.13 Organization as the Client(a) A lawyer employed or retained to represent an organization represents

the organization as distinct from its directors, officers, employees, members,shareholders or other constituents.

(b) If a lawyer for an organization knows that an officer, employee or otherperson associated with the organization is engaged in action, intends to act orrefuses to act in a matter related to the representation that is a violation of alegal obligation to the organization, or a violation of law which reasonablymight be imputed to the organization, and is likely to result in substantialinjury to the organization, the lawyer shall proceed as is reasonablynecessary in the best interest of the organization. In determining how toproceed, the lawyer shall give due consideration to the seriousness of theviolation and its consequences, the scope and nature of the lawyer’srepresentation, the responsibility in the organization and the apparentmotivation of the person involved, the policies of the organization concerningsuch matters and any other relevant considerations. Any measures takenshall be designed to minimize disruption of the organization and the risk of

RPC 1.14 APPENDIX A2

revealing information relating to the representation to persons outside theorganization. Such measures may include among others: (1) askingreconsideration of the matter; (2) advising that a separate legal opinion onthe matter be sought for presentation to appropriate authority in theorganization and (3) referring the matter to higher authority in theorganization, including, if warranted by the seriousness of the matter,referral to the highest authority that can act in behalf of the organization asdetermined by applicable law.

(c) When the organization’s highest authority insists upon action, orrefuses to take action, that is clearly a violation of a legal obligation to theorganization, or a violation of law which reasonably might be imputed to theorganization, and is likely to result in substantial injury to the organization,the lawyer may take further remedial action that the lawyer reasonablybelieves to be in the best interest of the organization. Such action may includerevealing information otherwise protected by RPC 1.6 only if the lawyerreasonably believes that: (1) the highest authority in the organization hasacted to further the personal or financial interests of members of thatauthority which are in conflict with the interests of the organization and (2)revealing the information is necessary in the best interest of the organization.

(d) In dealing with an organization’s directors, officers, employees,members, shareholders or other constituents, a lawyer shall explain theidentity of the client when the lawyer believes that such explanation isnecessary to avoid misunderstanding on their part.

(e) A lawyer representing an organization may also represent any of itsdirectors, officers, employees, members, shareholders or other constituents,subject to the provisions of RPC 1.7. If the organization’s consent to the dualrepresentation is required by RPC 1.7, the consent shall be given by anappropriate official of the organization or other than the individual who is tobe represented or by the shareholders.


Model Rule 1.13. This rule, which has no DR counterpart, sets forth guidelines forthe corporate or other organizational attorney.

RPC 1.14 Client under a Disability(a) When a client’s ability to make adequately considered decisions in

connection with the representation is impaired, whether because of minority,mental disability or for some other reason, the lawyer shall, as far asreasonably possible, maintain a normal client-lawyer relationship with theclient.

(b) A lawyer may seek the appointment of a guardian, or take otherprotective action with respect to a client, only when the lawyer reasonablybelieves the client cannot adequately act in the client’s own interest.


Model Rule 1.14. This rule has no counterpart in the former Disciplinary Rules.

RPC 1.15 Safekeeping Property(a) A lawyer shall hold property of clients or third persons that is in a

lawyer’s possession in connection with a representation separate from thelawyer’s own property. Funds should be kept in a separate accountmaintained in a financial institution in New Jersey. Funds of the lawyer that


are reasonably sufficient to pay bank charges may, however, be depositedtherein. Other property shall be identified as such and appropriatelysafeguarded. Complete records of such account funds and other propertyshall be kept by the lawyer and shall be preserved for a period of seven yearsafter the event that they record.

(b) Upon receiving funds or other property in which a client or thirdperson has an interest, a lawyer shall promptly notify the client or thirdperson. Except as stated in this Rule or otherwise permitted by law or byagreement with the client, a lawyer shall promptly deliver to the client orthird person any funds or other property that the client or third person isentitled to receive.

(c) When in the course of representation a lawyer is in possession ofproperty in which both the lawyer and another person claim interests, theproperty shall be kept separate by the lawyer until there is an accounting andseverance of their interests. If a dispute arises concerning their respectiveinterests, the portion in dispute shall be kept separate by the lawyer until thedispute is resolved.

(d) A lawyer shall comply with the provisions of R. 1:21-6(“Recordkeeping”) of the Court Rules.

COMMENT TO RPC 1.15The Court, with two revisions, has adopted the recommendations of the

Debevoise Committee, which in turn differs somewhat from the ABA-approvedversion of this rule. The Court deleted from the Debevoise Committeerecommendation the provision that would have permitted clients’ funds to bemaintained in another state with the consent of the client, instead requiring thefunds to be maintained in New Jersey accounts.

There is no doubt that a lawyer, as pointed out by the ABA and the KutakCommission, should hold the property of others “with the care required of aprofessional fiduciary.” This rule details the requirement by defining theobligations of the attorney as to the holding of property of clients or third persons.It requires, inter alia, that attorneys utilize trust accounts for the funds of clients,echoing the mandate of R. 1:21(a), as well as holding separate other clientproperty. See In re Lehet, 95 N.J. 466, 468 (1984); In re Jacobs, 95 N.J. 132(1984). The Court has added paragraph (d), emphasizing compliance with therecordkeeping provisions of R. 1:21-6.

The rule also imposes a duty upon the attorney to notify the client upon receiptof funds or property in which the client has an interest and in most cases to deliverthe property to the client promptly. It further contains provisions for handlingdisputed interests in property.

RPC 1.16 Declining or Terminating Representation(a) Except as stated in paragraph (c), a lawyer shall not represent a client

or, where representation has commenced, shall withdraw from therepresentation of a client if: (1) the representation will result in violation ofthe Rules of Professional Conduct or other law (2) the lawyer’s physical ormental condition materially impairs the lawyer’s ability to represent theclient or (3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw fromrepresenting a client if withdrawal can be accomplished without materialadverse effect on the interests of the client, or if: (1)the client persists in acourse of action involving the lawyer’s services that the lawyer reasonably

RPC 2.1 APPENDIX A2

believes is criminal or fraudulent (2) the client has used the lawyer’s servicesto perpetrate a crime or fraud; (3) a client insists upon pursuing an objectivethat the lawyer considers repugnant or imprudent; (4) the client failssubstantially to fulfill an obligation to the lawyer regarding the lawyer’sservices and has been given reasonable warning that the lawyer willwithdraw unless the obligation is fulfilled; (5) the representation will result inan unreasonable financial burden on the lawyer or has been renderedunreasonably difficult by the client; or (6) other good cause for withdrawalexists.

(c) When required to do so by rule or when ordered to do so by a tribunal,a lawyer shall continue representation notwithstanding good cause ofterminating the representation.

(d) Upon termination of representation, a lawyer shall take steps to theextent reasonably practicable to protect a client’s interests, such as givingreasonable notice to the client, allowing time for employment of othercounsel, surrendering papers and property to which the client is entitled andrefunding any advance payment of fee that has not been earned. The lawyermay retain papers relating to the client to the extent permitted by other law.

COMMENT TO RPC 1.16The Court has adopted paragraphs (a), (b) and (d) of ABA Model Rule 1.16

(paragraphs (a) and (d) of which were also recommended by the DebevoiseCommittee). Paragraph (c) has been revised so as to make clear that the lawyer isto continue representation in such cases when required by rule or ordered by atribunal even though the requisite good cause for terminating be present. But seeR. 1:11-2. As to substitutions of attorney because of the predecessor attorney’sdeath, disbarment, suspension or resignation. See R. 1:11-1.

RPC 2.1 AdvisorIn representing a client, a lawyer shall exercise independent professional

judgement and render candid advice. In rendering advice, a lawyer may refernot only to law but to other considerations, such as moral, economic, socialand political facts, that may be relevant to the client’s situation.


Model Rule 2.1.

RPC 2.2 IntermediarySubject to the provisions of RPC 1.7:(a) A lawyer may act as intermediary between clients if: (1) the lawyer

consults with each client concerning the implications of the commonrepresentation, including the advantages and risks involved, and the effect onthe attorney-client privileges, and obtains each client’s consent to thecommon representation; (2) the lawyer reasonably believes that the mattercan be resolved on terms comparable with the clients’ best interests, that eachclient will be able to make adequately informed decisions in the matter andthat there is little risk of material prejudice to the interest of any of the clientsif the contemplated resolution is unsuccessful; and (3) the lawyer reasonablybelieves that the common representation can be undertaken impartially andwithout improper effect on other responsibilities the lawyer has to any of theclients. (b) While acting as intermediary, the lawyer shall consult with eachclient concerning the decisions to be made and the considerations relevant tomaking them, so that each client can make adequately informed decisions. (c)


A lawyer shall withdraw as intermediary if any of the clients so requests, orif any of the conditions stated in paragraph (a) is no longer satisfied. Uponwithdrawal, the lawyer shall not continue to represent any of the clients in thematter that was the subject of the intermediation.


Model Rule 2.2, except to add language to the effect that the provisions of RPC1.7 apply here as well.

RPC 2.3 Evaluation for Use by Third Persons(a) A lawyer may undertake an evaluation of a matter affecting a client for

use of someone other than the client if: (1) the lawyer reasonably believes thatmaking the evaluation is compatible with other aspects of the lawyer’srelationship with the client; (2) the conditions of the evaluation are describedto the client in writing, including contemplated disclosure of informationotherwise protected by RPC 1.6; and (3) the client consents afterconsultation. In reporting an evaluation, the lawyer shall indicate anymaterial limitations that were imposed on the scope of the inquiry or on thedisclosure of information.

(c) Except as disclosure is required in connection with a report of anevaluation, information relating to the evaluation is otherwise protected byRPC 1.6.

COMMENT TO RPC 2.3The Court has adopted the Debevoise Committee recommendation (which

represents the earlier Kutak Commission language rather than the ABA-approvedversion).

RPC 3.1 Meritorious Claims and ContentionsA lawyer shall not bring or defend a proceeding, nor assert or controvert

an issue therein unless the lawyer knows or reasonably believes that there isa basis for doing so that is not frivolous, which includes a good faith argumentfor an extension, modification or reversal of existing law. A lawyer for thedefendant in a criminal proceeding, or the respondent in a proceeding thatcould result in incarceration, may nevertheless so defend the proceeding as torequire that every element of the case be established.

COMMENT TO RPC 3.1The Court has adopted the Debevoise Committee recommendation, with

clarifying language revisions as suggested by the NJSBA in its written commentssubmitted to the Court.

RPC 3.2 Expediting LitigationA lawyer shall make reasonable efforts to expedite litigation consistent

with the interests of the client and shall treat with courtesy and considerationall persons involved in the legal process.


Model Rule 3.2, which places with the attorney an affirmative obligation to makea 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 toexercise “courtesy and consideration” to everyone involved in the legal process.

RPC 3.3 APPENDIX A2

RPC 3.3 Candor Toward the TribunalA 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) fall to disclose to the tribunal legal authority in the controlling

jurisdiction known to the lawyer to be directly adverse to the position of theclient and not disclosed by opposing counsel;

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

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

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

(c) A lawyer may refuse to offer evidence that the lawyer reasonablybelieves is false.

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

COMMENT TO RPC 3.3The Court has made two revisions to ABA Model Rule 3.3, which rule the

Debevoise Committee recommended for adoption. One, the provisions ofsubparagraph (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 likelyto mislead the tribunal if counsel were to remain silent. This applies both to factsthat 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 thetribunal. 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 CounselA lawyer shall not: (a) unlawfully obstruct another party’s access to

evidence or unlawfully alter, destroy or conceal a document or other materialhaving potential evidentiary value, or counsel or assist another person to doany such act (b) falsify evidence, counsel or assist a witness to testily falsely,or offer an inducement to a witness that is prohibited by law; (c) knowinglydisobey an obligation under the rules of a tribunal except for an open refusalbased on an assertion that no valid obligation exists; (d) in pretrial proceduremake frivolous discovery requests or fail to make reasonably diligent effortsto comply with legal proper discovery requests by an opposing party; (e) intrial, allude to any matter that the lawyer does not reasonably believe isrelevant or that will not be supported by admissible evidence, assert personalknowledge of facts in issue except when testifying as a witness, or state apersonal opinion as to the justness of a cause, the credibility of a witness, theculpability 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 givingrelevant information to another party unless: (1) the person is a relative or anemployee 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 givingsuch information.


committee had recommended adoption of ABA Model Rule 3.4, except forparagraph (d) thereof, which it revised so as to reflect a “pattern of behavior”proscribed consistent with the provisions of RPC 1.1.

RPC 3.5 Impartiality and Decorum of the TribunalA lawyer shall not: (a) seek to influence a judge, juror, prospective juror

or other official by means prohibited by law; (b) communicate ex parte withsuch a person except as permitted by law; or (c) engage in conduct intendedto disrupt a tribunal.


Model Rule 3.5, which prohibits an attorney from attempting improperly toinfluence a tribunal. As noted in both the ABA Comment and the DebevoiseCommittee report, “[r]efraining from abusive or obstreperous conduct is acorollary of the advocate’s right to speak on behalf of litigants.” Even when facedby less than proper judicial conduct or conduct by other counsel or participants,the attorney must stand firm in adhering to the requirements of this rule.

RPC 3.6 Trial Publicity (a) A lawyer shall not make an extrajudicial statement that a reasonable

lawyer would expect to be disseminated by means of public communication ifthe lawyer knows or reasonably should know that it will have a substantiallikelihood of materially prejudicing an adjudicative proceeding.

(b) A statement referred to in paragraph (a) ordinarily is likely to havesuch an effect when it refers to a civil matter triable to a jury, a criminalmatter, or any other proceeding that could result in incarceration, and thestatement relates to: (1) the character, credibility, reputation or criminalrecord of a party, suspect in a criminal investigation or witness, or theidentity of a witness, or the expected testimony of a party or witness (2) in acriminal case or proceeding that could result in incarceration, the possibilityof a plea of guilty to the offense or the existence or contents of any confession,admission, or statement given by a defendant or suspect or that person’srefusal or failure to make a statement; (3) the performance or results of anyexamination or test or the refusal or failure of a person to submit to anexamination or test, or the identity or nature of physical evidence expected tobe presented (4) any opinion as to the guilt or innocence of a defendant orsuspect in a criminal case or proceeding that could result in incarceration; (5)information the lawyer knows or reasonably should know is likely to beinadmissible as evidence in a trial and would if disclosed create a substantialrisk of prejudicing an impartial trial; or (6) the fact that a defendant has beencharged with a crime, unless there is included therein a statement explainingthat the charge is merely an accusation and that the defendant is presumedinnocent until and unless proven guilty.

(c) Notwithstanding paragraphs (a) and (b)(1-5), a lawyer involved in theinvestigation of a matter may state without elaboration: (1) the generalnature of the claim or defense; (2) the information contained in a publicrecord; (3) that an investigation of the matter is in progress, including thegeneral scope of the investigation, the offense or claim or defense involved

RPC 3.7 APPENDIX A2

and, except when prohibited by law, the identity of the persons involved; (4)the scheduling or result of any step in litigation; (5) a request for assistancein obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved,when there is reason to believe that there exists the likelihood of substantialharm to an individual or to the public interest; and

(7) in a criminal case; (i) the identity, residence, occupation and familystatus of the accused; (ii) if the accused has not been apprehended,information necessary to aid in apprehension of that person; (iii) the fact,time and place of arrest; and (iv) the identity of investigating and arrestingofficers or agencies and the length of the investigation.

COMMENT TO RPC 3.6The Court has adopted ABA Model Rule 3.6, which differs slightly from the

Debevoise Committee recommendation (because of changes in the ABA-adoptedversion from the Kutak Commission version), except that the “reasonable person”standard set forth in paragraph (a) is replaced with a “reasonable lawyer” standard.The Debevoise Committee did present the competing issues of the right to a fairtrial and the right of free expression and quoted the Kutak Commission’smarshalling of these competing fundamental concerns. See also In re Hinds, 90N.J. 604 (1982); In re Rachmiel, 90 N.J. 646 (1982).

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 anuncontested issue; (2) the testimony relates to the nature and value of legalservices rendered in the case; or (3) disqualification of the lawyer would worksubstantial hardship on the client.

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


Model Rule 3.7, which deals with an attorney combining the roles of advocate andwitness or potential witness. As noted by the Debevoise Committee, “[t]he goal ofthis Rule is to ensure that any such combination of roles by the attorney does noteither prejudice the interest of the client or give rise to a conflict of interestbetween attorney and client.”

RPC 3.8 Special Responsibilities of a ProsecutorThe prosecutor in a criminal case shall: (a) refrain from prosecuting a

charge that the prosecutor knows is not supported by probable cause; (b)make reasonable efforts to assure that the accused has been advised of theright to, and the procedure for obtaining, counsel and has been givenreasonable opportunity to obtain counsel; (c) not seek to obtain from anunrepresented accused a waiver of important post-indictment pretrial rights;and (d) make timely disclosure to the defense of all evidence known to theprosecutor that supports innocence or mitigates the offense, and, inconnection with sentencing, disclose to the defense and to the tribunal allunprivileged mitigating information known to the prosecutor, except whenthe prosecutor is relieved of this responsibility by a protective order of thetribunal.


COMMENT TO RPC 3.8The Court has varied paragraph (c) of the recommendation of the Debevoise

Committee to conform more closely to decisional law. The Committee’s reportrecommended without comment the adoption of Model Rule 3.8 as proposed bythe ABA. The Kutak Commission emphasized in its recommendation the ABAStandards for Criminal Justice, Standards Relating to the Prosecution Functionand the Defense Function, “The Prosecution Function,” §3-3.2 (2d Tent. Draft1979), citing generally United States v. Ca1labrass, 458 F. Supp. 964 (S.D.N.Y.1978). That case dealt with an agent’s interrogation of a defendant after arrest onan indictment. The court found the claimed waiver of counsel ineffective andemphasized that more than a Miranda warning regarding waiver is required sinceSixth Amendment rights are involved, not just Fifth Amendment rights. Inaddition, it appeared that the defendant was represented by counsel, although thiswas unknown to the agent. The court questioned whether it is ever proper for agovernment lawyer to initiate questioning of an indicted defendant who is knownto be represented, citing Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246(1964). See also State v. McCloskey, 90 N.J. 18 (1982) (once a defendant hasinvoked the right to counsel, law enforcement officers may not initiate attempts toobtain waiver of the claim of counsel).

Taken in light of these references, the Court views the Kutak Commission asproperly focusing on those circumstances in which the right to counsel attaches asa matter of law or request. Preindictment consent to search or interrogation doesnot invoke the same Sixth Amendment concerns. Limiting ethical proscription tothe waiver of post-indictment pretrial rights such as Wade hearings or discoverywill accord with a lawyer’s general duty to an unrepresented adversary. The Courttrusts that prosecutors are equally conscious of the Kutak Commission’sobservation that “[s]eeking a waiver from an unrepresented defendant often willhave adverse consequences for both the defendant, who may lose importantprotections, and the criminal justice system, which becomes immersed in costly,time-consuming appeals,” and will only do so when satisfied that the waiver isknowing, voluntary and intelligent.

RPC 3.9 Advocate in Nonadjudicative ProceedingsA lawyer representing a client before a legislative or administrative

tribunal in a nonadjudicative proceeding shall disclose that the appearance isin a representative capacity and shall conform to the provisions of RPC 3.3(a)through (c), RPC 3.4(a) through (c), RPC 3.5(a), and RPC 3.5(c).


committee had recommended adoption of ABA Model Rule 3.9 with the exclusionof reference to RPC 3.5(b), which would have applied the ex parte communicationproscription to this nonadjudicative proceedings setting. The Court recognizesthat the requirements of this rule might well subject lawyers to regulationinapplicable to advocates appearing before the very same legislative oradministrative tribunals but who are not lawyers. As noted by the DebevoiseCommittee, “legislatures and administrative agencies have a right to expectlawyers to deal with them in the same responsible manner in which they deal withcourts.”

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

RPC 4.1 APPENDIX A2

material fact to a third person when disclosure is necessary to avoid assistinga criminal or fraudulent act by a client.

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

COMMENT TO RPC 4.1The Court has adopted the recommendation of the Debevoise Committee. As

adopted, subparagraph (a) (2) states negatively the affirmative duty to disclose setforth in RPC 1.6. However, as provided in paragraph (b), this rule in certainsituations can impose an even greater duty upon an attorney to discloseinformation than is required under RPC 1.6. Consequently, RPC 4.1(a)(2) wouldappear to extend the limits of RPC 1.6 in compelling disclosure. However, whileRPC 1.6 imposes on the attorney an affirmative duty to disclose by seeking out theproper authorities, RPC 4.1 limits the duty to disclose to those situations in whichthe lawyer is being questioned by a third party. There is thus no actual inherentconflict, except that in a given situation RPC 4.1 can impose on an attorney aneven greater duty to disclose than is required under RPC 1.6.

RPC 4.2 Communication with Person Represented by CounselIn representing a client, a lawyer shall not communicate about the subject

of the representation with a party the lawyer knows to be represented byanother lawyer in the matter, unless the lawyer has the consent of the otherlawyer or is authorized by law to do so.


Model Rule 4.2.

RPC 4.3 Dealing with Unrepresented PersonIn 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 unrepresentedperson misunderstands the lawyer’s role in the matter, the lawyer shall makereasonable efforts to correct the misunderstanding.


Model Rule 4.3. As noted by the Committee and in the ABA Comment, in somesituations it may be sufficient merely to suggest that the unrepresented personretain counsel.

RPC 4.4 Respect for Rights of Third PersonsIn 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 aperson.


Model Rule 4.4.

RPC 5.1 Responsibility 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 thatmember lawyers or lawyers otherwise participating in the organization’s


work undertake measures giving reasonable assurance that all lawyersconform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shallmake reasonable efforts to ensure that the other lawyer conforms to the Rulesof Professional Conduct.

(c) A lawyer shall be responsible for another lawyer’s violation of the Rulesof Professional Conduct if: (1) the lawyer orders or ratifies the conductinvolved; or (2) the lawyer having direct supervisory authority over the otherlawyer knows of the conduct at a time when its consequences can be avoidedor mitigated but fails to take reasonable remedial action.

COMMENT TO RPC 5.1The Court has adopted the Debevoise Committee recommendation with one

revision to paragraph (a) so as to make clear its applicability to all lawyers andentities engaged in the practice of law. This version further differs somewhat fromthe ABA-adopted rule in that it does not impute responsibility upon a partner in alaw firm for the ethical transgressions of law partners unless the attorney haddirect 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’sreasonable resolution of an arguable question of professional duty.


Model Rule 5.2. This rule is a corollary to RPC 5.1 (“Responsibilities of a Partneror Supervisory Lawyer”). As noted by the Debevoise Committee, while this rulehas no counterpart in the Disciplinary Rules which these rules replace, “the needexists to state explicitly the paramount nature of the subordinate attorney’s ethicalobligations.”

RPC 5.3 Responsibilities Regarding Nonlawyer AssistantsWith 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 ensurethat the conduct of nonlawyers retained or employed by the lawyer, law firmor organization is compatible with the professional obligations of the lawyer.

(b) a lawyer having direct supervisory authority over the nonlawyer shallmake reasonable efforts to ensure that the person’s conduct is compatiblewith the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that wouldbe a violation of the Rules of Professional Conduct if engaged in by a lawyerif: (1) the lawyer orders or ratifies the conduct involved; (2) the lawyer hasdirect supervisory authority over the person and knows of the conduct at atime when its consequences can be avoided or mitigated but fails to takereasonable remedial action; or

(3) the lawyer has failed to make reasonable investigation of circumstancesthat would disclose past instances of conduct by the nonlawyer incompatiblewith the professional obligation of a lawyer, which evidence a propensity forsuch conduct.

RPC 5.4 APPENDIX A2

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 recommendationsubparagraph (c) (3) requiring lawyers to make reasonable inquiry as to whethertheir nonlawyer employees have by instances of past conduct demonstrated apropensity 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 ofthe NJSBA so as to make the rule applicable to all entities engaged in the practiceof law.

RPC 5.4 Professional Independence of a Lawyer

Except as otherwise noted by the Court Rules: (a) A lawyer or law firmshall not share legal fees with a nonlawyer, except that: (1) an agreement bya lawyer with the lawyer’s firm, partner, or associate may provide for thepayment of money, over a reasonable period of time after the lawyer’s death,to the lawyer’s estate or to one or more specified persons (2) a lawyer whoundertakes to complete unfinished legal business of a deceased lawyer maypay to the estate of the deceased lawyer that proportion of the totalcompensation which fairly represents the services rendered by the deceasedlawyer; and (3) a lawyer or law firm may include nonlawyer employees in acompensation or retirement plan, even though the plan is based in whole orin part on a profit-sharing arrangement. (b) A lawyer shall not form apartnership with a nonlawyer if any of the activities of the partnership consistof the practice of law. (c) A lawyer shall not permit a person whorecommends, employs, or pays the lawyer to render legal services for anotherto direct or regulate the lawyer’s professional judgment in rendering suchlegal services. (d) A lawyer shall not practice with or in the form of aprofessional corporation or association authorized to practice law for aprofit, if: (1) a nonlawyer owns any interest therein, except that a fiduciaryrepresentative of the estate of a lawyer may hold the stock or interest of thelawyer for a reasonable time during administration; (2) a nonlawyer is acorporate director or officer thereof; or (3) a nonlawyer has the right to director control the professional judgment of a lawyer.

COMMENT TO RPC 5.4

While the Debevoise Committee recommended against adoption of this rule(favoring instead an amendment to the Court Rules), the Court has adopted ABAModel Rule 5.4, but has also added an introductory clause permitting exceptionsas otherwise provided by the Court Rules. This is consistent with therecommendation made by the NJSBA in its written comments submitted to theCourt. As noted in those comments, “[t]he addition of the prefatory languagewould specifically provide for charitable and legal services corporations as set outin R. 1:21-1(d).” See also RPC 1.5.

RPC 5.5 Unauthorized Practice of Law

A lawyer shall not: (a) practice law in a jurisdiction where doing soviolates the regulation of the legal profession in that jurisdiction; or (b) assista person who is not a member of the bar in the performance of activity thatconstitutes the unauthorized practice of law.


COMMENT TO RPC 5.5

The Court has adopted ABA Model Rule 5.5 (“Unauthorized Practice ofLaw”). This rule was added to the ABA Model Rules of Professional Conductsubsequent to the completion of the Debevoise Committee report; thus thatcommittee neither reviewed this rule nor made any recommendation as to it. RPC5.5 (“Restrictions on Right to Practice”), as contained in the DebevoiseCommittee report, is here renumbered, consistent with the ABA Model Rules, asRPC 5.6.

RPC 5.6 Restrictions on Right to PracticeA lawyer shall not participate in offering or making: (a) a partnership or

employment agreement that restricts the rights of a lawyer to practice aftertermination of the relationship, except an agreement concerning benefitsupon retirement; or (b) an agreement in which a restriction on the lawyer’sright to practice is part of the settlement of a controversy between privateparties.

COMMENT TO RPC 5.6

As recommended by the Debevoise Committee, the Court has adopted ABAModel Rule 5.6 (although that rule was numbered as RPC 5.5 by the DebevoiseCommittee; see above Comment to RPC 5.5).

RPC 6.1 Public Interest Legal ServiceA lawyer should render public interest legal service. A lawyer may

discharge this responsibility by providing professional services at no fee or areduced fee to persons of limited means or to public service or charitablegroups or organizations, by service in activities for improving the law, thelegal system or the legal profession, and by financial support fororganizations that provide legal services to persons of limited means.

COMMENT TO RPC 6.1

The Court has adopted ABA Model Rule 6.1, rather than the versionrecommended by the Debevoise Committee (which would have put a minimumlimit on the amount of financial support to a legal services organization that wouldsatisfy the attorney’s public interest legal service obligation). The Court retitledthis rule so as to reflect its content more accurately. This rule has no counterpartin the prior Disciplinary Rules.

RPC 6.2 Accepting AppointmentsA lawyer shall not seek to avoid appointment by a tribunal to represent a

person except for good cause, such as: (a) representing the client is likely toresult in violation of the Rules of Professional Conduct or other law; (b)representing the client is likely to result in an unreasonable financial burdenon the lawyer; or (c) the client or the cause is so repugnant to the lawyer as tobe likely to impair the client-lawyer relationship or the lawyer’s ability torepresent the client.

COMMENT TO RPC 6.2

As recommended by the Debevoise Committee, the Court has adopted ABAModel Rule 6.2. It should be stressed that in no way will the client’s indigency beused as a basis for avoiding such appointments; to the extent that the ABAcomment to this rule reads otherwise, it is disapproved.

RPC 6.3 APPENDIX A2

RPC 6.3 Membership in Legal Services OrganizationA lawyer may serve as a director, officer or member of a legal services

organization, other than the law firm with which the lawyer practices,notwithstanding that the organization serves persons having interestsadverse to a client of the lawyer if: (a) the organization complies with RPC5.4 concerning the professional independence of its legal staff; and (b) whenthe interests of a client of the lawyer could be affected, participation isconsistent with the lawyer’s obligations under RPC 1.7 and the lawyer takesno part in any decision by the organization that could have a material adverseeffect on the interest of a client or class of clients of the organization or uponthe independence of professional judgement of a lawyer representing such aclient.

COMMENT TO RPC 6.3The Court had adopted the recommendation of the Debevoise Committee

rather than the ABA version of this rule. This follows more closely the earlierKutak Commission version of RPC 6.3. This rule recognizes the need for privatelawyers to serve in legal services organizations, so long as no conflicts of interestare involved and so long as the professional independence of the legal staff ispreserved. See also RPC 6.4.

RPC 6.4 Law Reform Activities Affecting Client InterestsA lawyer may serve as director, officer or member of an organization

involved in reform of the law or its administration notwithstanding that thereform may affect the interests of a client of the lawyer. When the lawyerknows that the interests of a client may be materially benefited by a decisionin which the lawyer participates, the lawyer shall disclose that fact but neednot identify the client, except that when the organization is also a legalservices organization, RPC 6.3 shall apply.

COMMENT TO RPC 6.4The Court has adopted the recommendations of the Debevoise Committee,

which had recommended adoption of ABA Model Rule 6.4 with language addedat the end so that “except when the organization is also a legal servicesorganization, RPC 6.3 shall apply.” See also RPC 6.3.

RPC 7.1 Communications Concerning a Lawyer’s Services(a) A lawyer shall not make false or misleading communications about the

lawyer or the lawyer’s services. A communication is false or misleading if it:(1) contains a material misrepresentation of fact or law, or omits a fact

necessary to make the statement considered as a whole not materiallymisleading;

(2) is likely to create an unjustified expectation about results the lawyercan achieve, or states or implies that the lawyer can achieve results by meansthat violate the Rules of Professional Conduct or other law;

(3) compares the lawyer’s services with other lawyer’s services; or(4) relates to legal fees other than: (i)a statement of the fee for an initial

consultation; (ii) a statement of the fixed or contingent fee charged for aspecific legal service, the description of which would not be misunderstood orbe deceptive; (iii) a statement of the range of fees for specifically describedlegal services, provided there is a reasonable disclosure of all relevantvariables and considerations so that the statement would not bemisunderstood or be deceptive; (iv) a statement of specified hourly rates,provided the statement makes clear that the total charge will vary according


to the number of hours devoted to the matter, and in relation to the varyinghourly rates charged for the services of different individuals who may beassigned to the matter; (v) the availability of credit arrangements; and (vi) astatement of the fees charged by a qualified legal assistance organization inwhich the lawyer participates for specific legal services the description ofwhich would not be misunderstood or be deceptive.

COMMENT TO RPC 7.1This is renumbered DR 2-101, which the Court revised and adopted on January

16, 1984. What follows is the comment that accompanied that revision (see 113N.J.L.J. 91 (1984)).

This rule governs all communications about a lawyer’s services, includingadvertising and direct personal contact with potential clients permitted by RPC 7.2and RPC 7.3. Whatever means are used to make known a lawyer’s services,statements about them should be truthful. The prohibition in paragraph (a) (2) ofstatements that may create “unjustified expectations” would ordinarily precludeadvertisements about results obtained on behalf of a client, such as the amount ofa damage award or the lawyer’s record in obtaining favorable verdicts oradvertisements containing client endorsements. Such information may create theunjustified expectation that similar results can be obtained for others withoutregard to the specified factual and legal circumstances.

Under this rule, any complaints regarding objectionable attorney advertisingwould be channeled through the existing disciplinary structure. The Court willestablish a committee to assist lawyers who have questions as to the propriety ofparticular advertisements.

The inclusion of a requirement of “accuracy” was also considered but wasdeemed unnecessary. While mere technical inaccuracies will not necessarilyrender a communication ‘misleading,” any significant inaccuracy that worksagainst the interest of consumers would probably not survive the application of the“misleading” standard.

This rule contains a prohibition on advertising that compares the attorney’sservices with other lawyer’s services. Comparative advertising, if not inherentlymisleading, has a substantial probability for misleading consumers. This problemstems from the highly individualized nature of all but the most routine legalproblems. Just as the U.S. Supreme Court in Bates v. State Bar of Arizona, 433U.S. 350 (1977), limited price advertising to routine, standardized servicesbecause of the risk of misleading consumers, so does the Court here prohibitcomparative advertising. While the very nature and function of advertising maymake self-laudation unavoidable, comparisons are avoidable. The public will notbe served by advertising that denigrates others.

RPC 7.2 Advertising(a) Subject to the requirements of RPC 7.1 a lawyer may advertise services

through public media, such as a telephone directory, legal directory,newspaper or other periodical, radio, or television, or through mailed writtencommunication. All advertisements shall be predominantly informational.No drawings, animations, dramatizations, music, or lyrics shall be used inconnection with televised advertising. No advertisements shall rely in anyway on techniques to obtain attention that depend upon absurdity and thatdemonstrate a clear and intentional lack of relevance to the selection ofcounsel: included in this category are all advertisements that contain an

RPC 7.2 APPENDIX A2

extreme portrayal of counsel exhibiting characteristics clearly unrelated tolegal competence.

(b) A copy or recording of an advertisement or written communicationshall be kept for three years after its dissemination along with a record ofwhen and where it was used.

(c) A lawyer shall not give anything of value to a person for recommendingthe lawyer’s services, except that a lawyer may pay the reasonable cost ofadvertising or written communication permitted by this Rule and may paythe usual charge of a not-for-profit lawyer referral service or other legalservice organizations. (Amended effective January 1, 1987.)


16, 1984. What follows is the comment that accompanied that revision (see 113N.J.L.J. 91, 91-92 (1984)).

To assist the public in obtaining legal services, lawyers should be allowed tomake known their services not only through reputation but also through organizedinformational campaigns in the form of advertising.

Television is now one of the most important media for getting information tothe public, particularly persons of low and moderate income. Prohibitingtelevision advertising, therefore, would impede the flow of information aboutlegal services to many sectors of the public.

Advertising involves an active quest for clients, contrary to the tradition that alawyer should not seek clientele. However, the public’s need to know about legalservices can be fulfilled in part through advertising. This need is particularly acutein the case of persons of moderate means who have not made extensive use of legalservices. The interest in expanding public information about legal services oughtto prevail over considerations of tradition. Nevertheless, advertising by lawyersentails the risk of practices that are misleading or over-reaching.

This rule permits public dissemination of information concerning a lawyer’sname or firm name, address and telephone number; the kinds of services thelawyer will undertake; the basis on which the lawyer’s fees are determined,including prices for specific services and payment and credit arrangements; alawyer’s foreign language ability; names of references and, with their consent,names of clients regularly represented; and other information that might invite theattention of those seeking legal assistance.

Paragraph (a) permits communication by mail to a specific individual as wellas general mailings, but does not permit contact by telephone or in-person deliveryof written material except through the postal service or similar delivery service.

The rule requires that all advertisements about a lawyer or the lawyer’s servicesbe presented in a dignified manner, and prohibits certain modes of presentationsuch as music, animations, and the like. These devices would add little, if any,consumer-useful information to a communication, and are more likely to attractclients for reasons other than those that are relevant to the selection of appropriatecounsel. Any consumer-useful fact that might be conveyed by the use of jingles,lyrics, cartoons and the like can be communicated freely and explicitly via thewritten and spoken word.

This rule does not prohibit communications authorized by law, such as noticesto members of a class action litigation.

Paragraph (b) requires that a record of the content and use of advertising bekept in order to facilitate enforcement of this rule. It does not require thatadvertising be subject to review prior to dissemination. Such a requirement would


be burdensome and expensive relative to its possible benefits, and may be ofdoubtful constitutionality.

A lawyer is allowed to pay for advertising permitted by this rule, but otherwiseis not permitted to pay another person for channeling professional work. Thisrestriction does not prevent an organization or person other than the lawyer fromadvertising or recommending the lawyer’s services. Thus, a legal aid agency orprepaid legal services plan may pay to advertise legal services provided under itsauspices. Likewise, a lawyer may participate in not-for-profit lawyer referralprograms and pay the usual fees charged by such programs. Paragraph (c) does notprohibit paying regular compensation to an assistant, such as a secretary, or to apublic relations firm, to prepare communications permitted by this rule. Nopayment, however, shall be made to anyone, including a public relations firm, toobtain publicity in news articles or news broadcasts.

RPC 7.3 Personal Contact with Prospective Clients(a) A lawyer may initiate personal contact with a prospective client for the

purpose of obtaining professional employment, subject to the requirementsof paragraph (b).

(b) A lawyer shall not contact, or send a written communication to, aprospective client for the purpose of obtaining professional employment if:(1) the lawyer knows or reasonably should know that the physical, emotionalor mental state of the person is such that the person could not exercisereasonable judgement in employing a lawyer or (2) the person has madeknown to the lawyer a desire not to receive communications from the lawyeror (3) the communication involves coercion, duress or harassment; or (4) thecommunication involves direct contact with a prospective client concerning aspecific event when such contact has pecuniary gain as a significant motive.

(c) A lawyer shall not knowingly assist an organization that furnishes orpays for legal services to others to promote the use of the lawyer’s services orthose of the lawyer’s partner, or associate, or any other lawyer affiliated withthe lawyer or the lawyer’s firm as a private practitioner, if: (1) thepromotional activity involves use of a statement or claim that is false ormisleading within the meaning of RPC 7.1; or (2) the promotional activityinvolves the use of coercion, duress, compulsion, intimidation, threats,unwarranted promises of benefits, overreaching, or vexatious or harassingconduct.

(d) A lawyer shall not compensate or give anything of value to a person ororganization to recommend or secure the lawyer’s employment by a client, oras a reward for having made a recommendation resulting in the lawyer’semployment by a client except that the lawyer may pay for publiccommunications permitted by RPC 7.1 and the usual and reasonable fees ordues charged by a lawyer referral service operated, sponsored, or approvedby a bar association.

(e) A lawyer shall not knowingly assist a person or organization thatfurnishes or pays for legal services to others to promote the use of the lawyer’sservices or those of the lawyer’s partner or associate or any other lawyeraffiliated with the lawyer or the lawyer’s firm except as permitted by RPC7.1. However, this does not prohibit a lawyer or the lawyer’s partner orassociate or any other lawyer affiliated with the lawyer or the lawyer’s firmfrom being recommended, employed or paid by or cooperating with one ofthe following offices or organizations that promote the use of the lawyer’sservices or those of the lawyer’s partner or associate or any other lawyer

RPC 7.3 APPENDIX A2

affiliated with the lawyer or the lawyer’s firm if there is not interference withthe exercise of independent professional judgement in behalf of the lawyer’sclient:

(1) a legal aid office or public de fender office: (i) operated or sponsoredby a duly accredited law school. (ii) operated or sponsored by a bona fide non-profit community organization. (iii) operated or sponsored by agovernmental agency. (iv) operated, sponsored, or approved by a barassociation.

(2) a military legal assistance office.

(3) a lawyer referral service operated, sponsored, or approved by a barassociation.

(4) any bona fide organization that recommends, furnishes or pays forlegal services to its members or beneficiaries provided the followingconditions are satisfied: (i) such organization, including any affiliate, is soorganized and operated that no profit is derived by it from the furnishing,recommending or rendition of legal services by lawyers and that, if theorganization is organized for profit, the legal services are not rendered bylawyers employed, directed, supervised or selected by it except in connectionwith matters when such organization bears ultimate liability of its memberor beneficiary; (ii) neither the lawyer, nor the lawyer’s partner or associate orany other lawyer or nonlawyer affiliated with the lawyer or the lawyer’s firmdirectly or indirectly who have initiated or promoted such organization shallhave received any financial or other benefit from such initiation orpromotion; (iii) such organization is not operated for the purpose ofprocuring legal work or financial benefit for any lawyer as a privatepractitioner outside of the legal services program of the organization; (iv) themember or beneficiary to whom the legal services are furnished, and not suchorganization, is recognized as the client of the lawyer in the matter; (v) anymember or beneficiary who is entitled to have legal services furnished or paidfor by the organization may, if such member or beneficiary so desires, and atthe member or beneficiary’s own expense except where the organization’splan provides for assuming such expense, select counsel other than thatfurnished, selected or approved by the organization for the particular matterinvolved. Nothing contained herein, or in the plan of any organization thatfurnishes or pays for legal services pursuant to this section, shall be construedto abrogate the obligations and responsibilities of a lawyer to the lawyer’sclient as set forth in these Rules; (vi) the lawyer does not know or have causeto know that such organization is in violation of applicable laws, rules ofcourt and other legal requirements that govern its legal service operations;(vii) such organization has first filed with the Supreme Court and at leastannually thereafter on the appropriate form prescribed by the Court a reportwith respect to its legal services plan. Upon such filing, a registration numberwill be issued and should be used by the operators of the plan on allcorrespondence and publications pertaining to the plan thereafter. Suchorganization shall furnish any additional information requested by theSupreme Court.

(f) A lawyer shall not accept employment when the lawyer knows or it isobvious that the person who seeks the lawyer’s services does so as a result ofconduct prohibited under this Rule.



16, 1984, with erroneous cross-references in paragraph (c) deleted. What followsis the comment that accompanied that revision (see 113 N.J.L.J. 91, 92 (1984)).

Solicitation generally is not harmful. For example, lawyers have been andshould continue to be permitted to make a personal contact (1) if the prospectiveclient is a close friend, relative, former client or one whom the lawyer reasonablybelieves to be a client; (2) under the auspices of a public or charitable legalservices organization; or (3) under the auspices of a bona fide political, social,civic, fraternal, employee or trade organization whose purposes include but are notlimited to providing or recommending legal services, if the legal services arerelated to the principal purposes of the organization. Similarly, this rule would notprohibit a lawyer from contacting representatives of organization or groups thatmay be interested in establishing a group or prepaid legal plan for its members,insureds, beneficiaries or other third parties for the purpose of informing suchentities of the availability of and details concerning the plan or arrangement whichthe lawyer or the lawyer’s firm is willing to offer. This form of communication isnot directed to a specific prospective client known to need legal services related toa particular matter. Rather, it is usually addressed to an individual acting in afiduciary capacity seeking a supplier of legal services for others who may, if theychoose, become prospective clients of the lawyer. Under these circumstances theactual activity which the lawyer undertakes in communicating with suchrepresentatives and the type of information transmitted to the individual can becompared favorably with advertising permitted under RPC 7.2.

Unrestricted solicitation, however, involves definite social harms. Among theseare harassment, overreaching, provocation of nuisance litigation and schemes forsystematic fabrication of claims, all of which were experienced prior to adoptionof restrictions on solicitation. Measures reasonably designed to suppress theseharms are constitutionally legitimate. At the same time, measures going beyondrealization of such objectives would appear to be invalid under relevant decisionsof the United States Supreme Court.

In determining whether a contact is permissible under RPC 7.3(b), it is relevantto consider the time and circumstances under which the contact is initiated. Forexample, a person undergoing active medical treatment for traumatic injury isunlikely to be in an emotional state in which reasonable judgment aboutemploying a lawyer can be exercised.

RPC 7.4 Communication of Fields of PracticeA lawyer may communicate the fact that the lawyer does or does not

practice in particular fields of law. However, when the Supreme Court hasdesignated areas of speciality certification, only those attorneys so certifiedmay advertise that they are specialists in or limit their practice to those areas.Uncertified attorneys may nevertheless list these areas as among the areas inwhich they practice.


16, 1984. What follows is the comment that accompanied that revision (see 113N.J.L.J. 91, 92-93 (1984)).

The public has a legitimate interest in knowing in what areas of the law alawyer practices.

RPC 7.5 APPENDIX A2

This rule permits a lawyer to indicate areas of practice in communicationsabout the lawyer’s services, for example, in a telephone directory or otheradvertising. If a lawyer practices only in certain fields, or will not accept mattersexcept in such fields, the lawyer is permitted so to indicate. Stating that thelawyer’s practice is “limited to” or “concentrated in” particular fields is permittedexcept where the Court has designated areas of speciality certification. In thoseareas, only certified attorneys may list their practice as limited to the designatedspeciality.

RPC 7.5 Firm Names and Letterheads(a) A lawyer shall not use a firm name, letterhead or other professional

designation that violates RPC 7.1. Except for nonprofit legal aid or publicinterest law firms, the name under which a lawyer or law firm practices shallcontain only the full or last names of one or more of the lawyers in the firmor office or the names of a person or persons who have ceased to be associatedwith the firm through death or retirement.

(b)A law firm with offices in more than one jurisdiction may use the samename in each jurisdiction. In New Jersey, identification of all lawyers of thefirm, in advertisements, on letterheads or anywhere else that the firm nameis used, shall indicate the jurisdictional limitations on those not licensed topractice in New Jersey. Where the name of an attorney not licensed topractice in this State is used in a firm name, any advertisement, letterhead orother communication containing the firm name must include at least onelicensed New Jersey attorney who is responsible for the firm’s New Jerseypractice or the local office thereof.

(c) A firm name shall not contain the name of any person not activelyassociated with the firm as an attorney, other than that of a person or personswho have ceased to be associated with the firm through death or retirement.

(d) Lawyers may state or imply that they practice in a partnership or otherorganization only when that is the fact.

(e) In any case where a nonprofit legal aid or public interest law firmpractices under a trade name as permitted by paragraph (a) above, the nameor names of one or more of its principally responsible attorneys, licensed topractice in this State, shall be displayed on all letterheads, signs,advertisements and cards or other places where the trade name is used.


16, 1984. What follows is the comment that accompanied that revision (see 113N.J.L.J. 91, 93 (1984)).

This rule requires that the name under which a firm operates must contain thefull or last names of one or more of the lawyers in the firm or office. Firms mayretain the names of deceased or retired members provided that the status of thosemembers is clearly set forth. Except for non-profit legal aid or public interest lawfirms, the rule does not permit the use of a name that contains anything other thanthe name or names of individual lawyers. Although “Smith and Jones” would beacceptable, “The Jones Law Clinic” or “National Legal Services” would not be.

Paragraph (b) provides that law firms from other jurisdictions with offices inNew Jersey may use, subject to paragraph (a), a firm name that includes the namesof non-New Jersey attorneys. In order to do so, the jurisdictional limitations ofpractice for those named members of the firm not admitted in New Jersey must beset forth. In addition, when the name of an attorney not licensed in New Jersey is


used in any firm name, all advertisements, letterheads or other communicationsmust include the name of at least one attorney who is licensed in New Jersey. Theperson named must be responsible for the firm’s New Jersey practice or a localoffice in this State. The intent of the rule is to make it clear that consumers areentitled to know with whom they will be dealing. Furthermore, they must knowthat legal work generated in New Jersey will be handled by lawyers admitted tothe bar of this State.

All offices maintained by multi-jurisdiction firms will have to meet the bonafide office requirements of R. 1:21-1(a) and In re Sackman, 90 N.J. 521 (1982).

RPC 8.1 Bar Admission and Disciplinary MattersAn applicant for admission to the bar, or a lawyer in connection with a bar

admission application or in connection with a disciplinary matter, shall not:(a) knowingly make a false statement of material fact; or (b) fail to disclose afact necessary to correct a misapprehension known by the person to havearisen in the matter, or knowingly fail to respond to a lawful demand forinformation from an admissions or disciplinary authority, except that thisRule does not require disclosure of information otherwise protected by RPC1.6.

COMMENT TO RPC 8.1The Court has adopted ABA Model Rule 8.1 rather than the differing language

recommended by the Debevoise Committee. The adopted rule applies toapplicants for admission to the bar as well as to attorneys in connection withadmission proceedings or disciplinary matters.

RPC 8.2 Judicial and Legal Officials(a) A lawyer shall not make a statement that the lawyer knows to be false

or with reckless disregard as to its truth or falsity concerning thequalifications of a judge, adjudicatory officer or other public legal officer, orof a candidate for election or appointment to judicial or legal office.

(b) A lawyer who has been confirmed for judicial office shall comply withthe applicable provisions of the Code of Judicial Conduct.

COMMENT TO RPC 8.2The Court has adopted the recommendations of the Debevoise Committee, but

has deleted the reference in paragraph (b)to “nomination” for judicial office. Thisdiffers from ABA Model Rule 8.2(b), which refers to “candidates for judicialoffice.”RPC 8.3 Reporting Professional Misconduct

(a) A lawyer having knowledge that another lawyer has committed aviolation of the Rules of Professional Conduct that raises a substantialquestion as to that lawyer’s honesty, trustworthiness or fitness as a lawyer inother respects, shall inform the appropriate professional authority.

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

(c) This Rule does not require disclosure of information otherwiseprotected by RPC 1.6.


Model Rule 8.3. This rule in no way reduces the present obligation to report suchjudicial and attorney ethical violations.

RPC 8.4 APPENDIX A2

RPC 8.4 MisconductIt is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, know-

ingly 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; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresenta-

tion; (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.

COMMENT TO RPC 8.4The Court has adopted ABA Model Rule 8.4, which defines “professional

misconduct.” The Debevoise Committee has recommended adoption of an earlierversion containing two additional paragraphs, but the provisions of thoseparagraphs are included in ABA Model Rule 5.5 (“Unauthorized Practice ofLaw”), which the Court has adopted as RPC 5.5.

RPC 8.5 JurisdictionA lawyer admitted to practice in this jurisdiction is subject to the

disciplinary authority of this jurisdiction although engaged in practiceelsewhere.

COMMENT TO RPC 8.5While the Debevoise Committee recommended against adoption of this rule,

the Court has adopted ABA Model Rule 8.5 because, even though it has nocounterpart in the former Disciplinary Rules, it codifies the existing New Jerseyrule in the Rules of Professional Conduct. In its written comments submitted tothe Court, the NJSBA had recommended inclusion of a jurisdictional RPCcontaining the pertinent provisions of R. 1:20-1.

appendix a2 1984 rules of professional conduct16, 1984, with minor editorial changes. they have been...

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