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 Ethical Infractions.
The Nissenbaum Law Group accepts engagements involving New Jersey attorneys accused of breaching the Rules of Professional Conduct.
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 has thereafter defended a large number of attorneys accused of ethical infractions.
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 other finder of fact, the Nissenbaum Law Group will vigorously defend it.
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 discernable 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 and bank account information to see if there are ways to address any problem areas proactively. Moreover, if there are gaps or errors that need to be addressed in the bookkeeping and account reconciliation process, the firm may suggest that a forensic accounting firm be added to the mix.
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 and declination procedures, attorney advertising and bookkeeping procedures. To be clear, we limit this to a review of the procedures; it is not a formal financial audit. We will then issue a report (governed by the attorney/client privilege) that will detail our findings. Any additional services—such as an actual legal or financial audit—would be subject to a separate fee arrangement.
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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