There are a number of misconceptions about the New Jersey ethics process relating to the fact that the attorney responding to an ethics grievance may not be familiar in advance with its nuances. Indeed, one of the more obscure aspects of the ethics process is that otherwise acceptable approaches in civil or criminal matters may be precluded. The following are five of the more notable examples.

Five Misconceptions About the New Jersey Ethics Process

1.First, plea bargaining is not allowed. That is one of the seminal differences between the ethics process and criminal law (in which plea bargaining comports with public policy).

2. Second, if the grievance relates to payment of money, remitting the amount in dispute does not end the matter. (However, it can be taken into account as a mitigating factor respecting the quantum of discipline.)

3. Third, in an ethics matter relating to inadequate compliance with trust account procedures, whether a check bounced is not dispositive of a finding that the respondent breached their ethical duties. An example of this would be if the reason the check did not bounce was that one client’s funds were used to cover a check drawn for a different client.

4. Fourth, the fact that the grievant was in a compromised emotional state when they asserted that their attorney violated ethics is generally irrelevant.

5. Fifth, the fact that the grievant unsuccessfully stated a basis to conclude that an ethical violation occurred does not preclude the investigator from finding that it did, i.e. that there were violations that the grievant failed to assert, but, that the investigator may have learned thereafter.

The key to successfully navigating the ethics grievance and complaint procedure is to remember that it is a marathon, not a sprint. While admittedly, it is offensive to be accused of failing to abide by the Rules of Professional Conduct, that has to be set aside. The attorney must approach the matter dispassionately.

For this reason, it is advisable to hire outside counsel to defend the respondent. That is true notwithstanding the fact that the client also happens to be a lawyer. That may seem contradictory, but it is generally the best practice.

Publications & Presentations

Gary D. Nissenbaum, Esq.

• J.D., Rutgers School of Law, Newark, New Jersey, 1984
• B.A., Sarah Lawrence College, Bronxville, New York, 1980
• Presented Seminar, Four Aspects of Attorney Ethics Enforcement by the NJ, NY, & PA Bars and the EOIR That You May Not Have Heard About Before, Lawline, March 2025
• Augmented Reality: Gotta Protect That IP, by Gary D. Nissenbaum, Esq. and Laura J. Magedoff, Esq., Apptentive, September 22, 2016
• Profiled in: Gary D. Nissenbaum: Ace Gaming Attorney, by David Radd, Gamesauce.biz, September 10, 2016
• The Increasing Pace of Digital Change: Why Does Our Culture Always Seem so Blindsided?, Huffingtonpost.com, August 4, 2016
• The Intriguing Legal Ramifications of Pokémon GO, Brettterpstra.com, July 25, 2016
• Potential Legal Approaches to a Cyberbullying (Co-author), The Young Lawyer, American Bar Association Young Lawyers Division, 2013
• Wrongful Posting on the Internet: The Privacy You Save Could be Your Own, NJ Lawyer Magazine, April, 2008
• The Legal Ramifications of Computer Outsourcing, Legal Tech Newsletter, December, 1994
• 900 Numbers Come of Age, Communications Managers Association Review, Winter, 1994
• How to Sharpen Your Contract Clauses, Telemarketing Magazine, May, 1994

Podcasts:

• 3/1/18 Interview of Mr. Nissenbaum, Systematic, “The Psychodynamics of Lawyering with Gary Nissenbaum”
• 1/22/18 Interview of Mr. Nissenbaum, Game Dev Unchained, “The Indie Legal Guide With Gary Nissenbaum”
• 11/21/17 Interview of Mr. Nissenbaum, Gamesindustry.biz Podcasts, “Licensing Your Intellectual Property”
• 11/3/17 Interview of Mr. Nissenbaum, Developer Tea Podcast, “The Future (and Past) of Legal for Developers w/Gary Nissenbaum (part 1)”
• 11/3/17 Interview of Mr. Nissenbaum, Developer Tea Podcast, “The Future (and Past) of Legal for Developers w/Gary Nissenbaum (part 2)”
• 10/19/17 Interview of Mr. Nissenbaum, Complete Developer Podcast, “Developers and the Law”
• 10/13/17 Interview of Mr. Nissenbaum, Hansel Minutes Podcast, “Latest Developments in App and Website Law Regarding Clickable Terms and Conditions”

Anthony C. Gunst, Esq.

• J.D., Washington and Lee School of Law, Lexington, VA, 2018
• B.A., magna cum laude, Seton Hall University, South Orange, NJ, 2014
• Presented Seminar, Mastering Digital Legal Marketing: Practice, Ethics and the AI Landscape in 2026, New Jersey Institute for Continuing Legal Education, May 2026
• Presented Seminar, Tuning into Music Law, National Business Institute, Inc., April 2025
• Presented Seminar, Four Aspects of Attorney Ethics Enforcement by the NJ, NY, & PA Bars and the EOIR That You May Not Have Heard About Before, Lawline, March 2025
• Presented Seminar, Mastering Ethical Challenges in Social Media Use, New Jersey State Bar Association, November 2024
• Presented Seminar, Mastering Digital Legal Marketing – Practice and Ethics, New Jersey State Bar Association, October 2024
• Presented Seminar, How to Avoid Serious Mistakes When Facing an Attorney Ethics Matter, New Jersey Association of Legal Administrators, April 2023