NJ ATTORNEY ETHICS DEFENSE
When facing an ethics grievance or complaint, an attorney needs an attorney.
An Experienced and Nuanced Approach to Defending Attorneys Accused of Violating the Rules of Professional Conduct
The Nissenbaum Law Group has a robust practice defending attorneys accused of violating the Rules of Professional Conduct. This includes everything from allegations of minor misconduct such as letterhead and signage issues through more serious trust account misappropriation that could lead to disbarment.
Mr. Nissenbaum was a member of the District XII Ethics Committee for five years. Ultimately, he was appointed Vice Chairman, and later Chairman, of the Committee (2006/2007). During his tenure on the Committee, Mr. Nissenbaum gained experience investigating ethics grievances; supervising grievance investigations; and conducting hearings relating to grievances that had reached the complaint stage. These hearings involved allegations of serious ethical infractions. As of September 1, 2007, Mr. Nissenbaum completed his term with the District XII Ethics Committee and over the following decade developed a significant practice defending attorneys accused of ethical infractions.
FAQs — Frequently Asked Questions About Defending Against an Ethics Grievance or Complaint
Is there a standard way that the ethics grievance process proceeds?
Yes and no The framework is generally the same, though there are a number of points at which the process can deviate from the norm. Essentially, the grievance is usually submitted on an Office of Attorney Ethics form that allows for attachments. It is sent to the attorney accused of an ethics infraction for a written response. Thereafter, the investigator will normally meet with both the grievant and the respondent (and their respective counsel, if any) to get both sides of the story. Also, the investigator will request the underlying documents. Finally, the investigator may interview third party witnesses.
Once the investigator has a full record, they will prepare and issue their report. It may indicate that there is a finding that an ethical lapse cannot be proven by clear and convincing evidence. That means the matter is generally at an end. Otherwise, the matter will proceed to the complaint stage, and the investigator normally will take on the role of presenter.
Can I plea bargain?
No There is no plea bargaining in the ethics system. The general concept is that this is not an adversarial system in which the aim is for the Office of Attorney Ethics to win a civil judgment or criminal conviction. Under those circumstances, a civil settlement or a criminal plea bargain would make sense. In this context, the aim is to protect the public from attorneys who are not meeting the minimum ethical requirements in their practice. Therefore, the aim is not for the OAE to win and the attorney to lose, so much as for the truth to come out as to whether or not there is a need to discipline the attorney.
Having said that, there is a procedure in which certain minor disciplinary matters can be diverted and resolved at the very beginning of the process in a manner similar to the pre-trial intervention procedure in the criminal context. It is called “diversion” and once again, must be done at the outset–another reason that it is so important to bring in defense counsel, if at all, at the earliest point possible.
Will the Office of Attorney Ethics take into account the fact that the grievant has it in for me, that half the things they are saying are exaggerations and the other half are simply untrue?
Yes and no Once again, you need to orient yourself away from thinking about all this as a variant of a civil or criminal matter in which motive and lack of objectivity is more of a factor. While credibility is always important, that has to be viewed in the context that the grievant’s state of mind or hidden agenda is simply not the issue. Regardless of how and why the grievance was filed, if it states a legitimate basis to investigate whether or not ethical rules were violated, that will be investigated and ultimately, if warranted, pursued.
Another way of saying the same thing is to look at the discovery and pleading process for ethics complaints versus civil litigation. In ethics matters, the respondent is required to be forthright and complete in responding to the Office of Attorney Ethics or District Ethics Committee. This is not a situation in which one is trying to give the least information required by the prevailing rules and law, but instead, the response is required to be comprehensive without any sophistry or misdirection. In re Gavel, 22 N.J. 248, 263 (1956); R. 1:20-4(e)
Given that imperative, it is absolutely essential that the respondent tell one, holistic story that will be consistent throughout the grievance and complaint stages. It is critical that all key documents and other evidence be provided as early in that process as possible. Although it might seem counter-intuitive from a litigation perspective, it is critical to give the most information one can–albeit, from the respondent’s perspective–rather than engage in stripped down notice pleading and one word answers to factually-based questions.
Is there a major difference between being the subject of an ethics investigation by a representative of the District Ethics Committee versus the Office of Attorney Ethics?
No They are connected in the sense that the local volunteer District Ethics Committees are overseen by the Office of Attorney Ethics in Trenton (which in turn is overseen by the Supreme Court of New Jersey). The investigations and hearings for lower level ethics matters are generally handled at the committee level, while the more significant matters, such as for example when the potential quantum of discipline is higher, are handled directly by the OAE. A more detailed list of those categories is set forth in R. 1:20-2(b).
The committee investigators are generally volunteer attorneys who are members of that committee. If the matter reaches the level of a complaint and consequent hearing, the hearing panel is generally made up of volunteer members of the same committee. On the other hand, the investigators at the Office of Attorney Ethics are generally salaried employees, many of whom have a background in law enforcement. The hearings are usually conducted by ethics masters who are appointed by the OAE.
The long and the short of it is that the substance is the same, in that the law and rules do not vary between the two alternate approaches.
My trust account is about to be audited. Is there a chance that will end up becoming an ethics grievance?
Yes It is surprising how many experienced attorneys do not know what a “triple reconciliation” of a trust account means, or what the court rules mandate concerning the name used for the trust account or even whether one is allowed to wire funds out of a trust account. The amount of nuance and detail respecting how a trust account must be maintained is truly daunting for attorneys who are trying to focus on building their practice and serving their clients.
Yet, these trust accounting rules apply regardless of whether or not the attorney is as familiar with them as they should be. This is another reason that it is important to have counsel when facing a trust account audit: what may seem like a straightforward process can easily blindside even the most well-meaning attorney. And that can end up becoming an ethics grievance, as well.
Are ethics hearings conducted in a manner that is similar to an administrative hearing? Do the Rules of Evidence apply? Is there an appeal process?
Yes Once a complaint is filed and the pre-hearing procedure has been completed, the hearing will likely proceed in an available local courtroom. The Rules of Evidence are a guide, but are not strictly enforced. In the parlance of the court rule, they are “relaxed”. R. 1:20-7(a). The burden of proof is not the normal civil litigation standard of a preponderance of the evidence, but the heightened standard of clear and convincing evidence. R. 1:20-6(c)(2)(B). The appeal process involves an initial review of appropriate matters by the Disciplinary Review Board (DRB). R. 1:20-15. After that, the Supreme Court of New Jersey will issue a corresponding order or take other action as it deems necessary. R. 1:20-16.
The Firm’s Approach to Defending Attorneys Accused of Ethical Infractions
Although ethics matters can reach disposition at the District Ethics Committee level, if they are serious enough, they may instead be handled directly by the Office of Attorney Ethics. Over the years, the Nissenbaum Law Group has defended attorneys at various points from initial submissions at the investigatory stage; to filing verified answers at the ethics complaint stage; to handling full-blown contested hearings and even providing oral argument before the Disciplinary Review Board and ultimately, the Supreme Court of New Jersey.
There is more than one way to defend against accusations of ethical infractions. The initial grievance should be seen not as an opportunity to provide the least amount of information possible, but instead as a means of telling the entire story in a robust and thoughtful way that can potentially convince the investigator and/or those supervising him or her that it is appropriate to drop the matter. If that is not availing, there are sometimes other points in the investigatory stage at which the matter may still be resolved. However, if it cannot be resolved and instead, proceeds to the hearing stage before a Special Ethics Master or
The key is that each case is unique and requires a customized approach. That is the hallmark of how the firm represents attorneys facing an accusation of ethical wrongdoing.
The Firm’s Approach to New Jersey Ethics Matters Regarding Attorney Advertising
Attorney advertisements are not allowed to contain statements or claims that are false or misleading. RPC 7.1(a)(1). While that seems fairly straightforward, the attorney advertising restrictions contained in RPC 7.1 through RPC 7.3 are surprisingly complex. For example,
- An advertisement may not contain statements that are reasonably likely to create an unjustified expectation about results the lawyer can achieve. RPC 7.1(a)(2).
- An advertisement may not compare the lawyer’s services with the services of other lawyers unless the name of the comparing organization is stated; the basis for the comparison can be substantiated; and the following disclaimer is included in a discernible manner: “No aspect of this advertisement has been approved by the Supreme Court of New Jersey.” RPC 7.1(a)(3).
- In the case of a written solicitation by mail, the word “ADVERTISEMENT” must be both on the first page of the letter and on the outside of the envelope; must advise the person that “if a lawyer has already been retained the letter is to be disregarded”; and contain the following notice at the bottom of the last page of text: “Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision.” RPC 7.3(b)(5).
The Nissenbaum Law Group stands ready to assist attorneys both in seeking to comply with these and other advertising restrictions and in defending attorneys accused of violating them.
The Firm’s Approach to Random Audits of IOLTA Attorney Trust Accounts
Sometimes, an ethics representation begins innocuously as a random audit of an IOLTA Attorney Trust Account. Accordingly, it is critical that an attorney being audited view that process as one that may evolve into an ethics grievance.
The Nissenbaum Law Group’s approach to such audits is proactive. It interviews the client to elicit the responses they would give to the auditor. This allows the firm to assess the problem areas that the client may be overlooking. Thereafter, it analyzes client files, bookkeeping
The Nissenbaum Law Group views random trust account audits as serious matters that require a defense team to assess the problem areas and proceed to address them ahead of the curve.
Trust Account Advisory Audit
Indeed, rather than being in the position of trying to correct trust accounting procedures after those procedures are deemed deficient by the Office of Attorney Ethics, undoubtedly it would be far better to review those procedures before the random audit request is issued. The truth is that most attorneys are caught off-guard when the Office of Attorney Ethics requests a random audit. For some, that might be the first time their law firm carefully reviews its trust accounting procedures to ascertain whether or not they comport with the Rules of Professional Conduct. It’s an example of closing the barn door after the horse has bolted; the consequences not just for the attorneys, but also their clients, can be devastating.
Accordingly, we offer a flat fee consultation in which our attorneys (and, as appropriate, a well-known forensic accounting firm) will review a law firm’s trust accounting procedures, retainer agreements, client intake
Venue for Ethics Grievances and Complaints
One of the more interesting nuances of this practice area is that the investigations and hearings do not necessarily take place where the attorney respondent is located. While that is the aim, there are various factors that come into play. For example,
- If the attorney has significant connections to members of the local District Ethics Committee, the matter may be moved to a committee in a different county entirely.
- A grievance may begin to be investigated at the local district ethics committee level and because it develops into a more significant matter, be transferred to the Office of Attorney Ethics in Trenton
- A hearing may need to be conducted in a courthouse in a different county, due to availability issues.
Accordingly, this is truly a statewide area practice.
The Nissenbaum Law Group has handled matters throughout New Jersey, from Bergen County (District IIA) to Union County (District XII); from Mercer County (District VII) to Burlington County (District IIIB); from Camden and Gloucester (District IV) to Middlesex County (District VII). It has also handled a number of matters before the Office of Attorney Ethics in Trenton (District XIV).
PUBLICATIONS & PRESENTATIONS
Gary D. Nissenbaum, Esq.
- Presented Seminar, Attorney Ethics Grievances: 20 Insights from the Trenches, Wilshire Grand Hotel, December 2016
- Presented Seminar, Attorney Ethics Grievance Process, Union County Bar Association, 2011
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