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.

• Panelist, New Jersey Trust and Business Accounting, New Jersey Institute for Continuing Legal Education, February 2021
• Presented Seminar, How to Avoid Serious Mistakes When Facing an Ethics Grievance or Random Trust Account Audit, Essex County Bar Association, December 2020
• Presented Seminar, “Good Grievance, Charlie Brown!” Latest Developments in NJ Ethics Law and Procedure, New Jersey Institute for Continuing Legal Education, July 2020
• Presented Seminar, How to Avoid Serious Mistakes When Facing an Ethics Grievance, Wilshire Grand Hotel, December 2019
• 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

Anthony C. Gunst, Esq.

• Presented Seminar, How to Avoid Serious Mistakes When Facing an Attorney Ethics Matter, New Jersey Association of Legal Administrators, April 2023