Friday, October 21, 2005

Increased publicity of ethics complaints against lawyers in New Jersey

In a ruling by the New Jersey Supreme Court, clients who file grievances about their attorneys are now free to publicly discuss the grievances prior to review by an ethics grievance committee. Only the grievance committee can file a formal complaint, and in 9 out of 10 cases, no formal complaint is filed. In freeing clients to talk about complaints, the New Jersey Supreme Court declared one of its own rules unconstitutional.

Justice James Zazzali wrote: Protecting the reputations of attorneys and the bar does not justify restricting a grievant's speech, and, in fact, such restrictions breed resentment rather than respect.

Previously, in New Jersey, clients complaining about attorneys were told they could not publicly disclose their grievances until an ethics committee had reviewed them and determined they warranted a formal complaint. Among 70 regulated occupations in New Jersey, only lawyers enjoyed this freedom from disclosure.

The specific case involved the right of Randee Massler of Basking Ridge, to disclose that she had filed an ethics complaint in 2001 against Warren lawyer Michele D'Onofrio for her handling of Massler's divorce. D'Onofrio did not return calls to her office. According to the ruling, D'Onofrio, identified only as "Jane Doe," admitted "specific acts of misconduct" that the ethics committee chairman found were "minor." Accordingly, D'Onofrio was allowed to enter "diversion" and Massler was told she could never disclose her complaint. Massler decided to fight the gag order and hired Richard Gutman of Montclair, who specializes in free speech and open records cases. The ruling has only prospective impact; those clients who filed against their attorneys, which filing did not lead to a formal complaint, are still preventing from disclosing.

In the November 2005 issue of Intellectual Property Today, I write about ethics rules in Oregon. I take issue with Professor Tom Lininger who in 39 Willamette L. Rev. 1031 (2003) noted that “the public has become disillusioned efficacy of lawyers’ self-regulation” [true] but that “our state [Oregon] may place a higher premium on honesty than other states [false].

In the New Jersey matter, John Paff, who runs "The New Jersey Bartender," a Web site on disciplined lawyers, said he expects the ruling to shed light on whether ethics committees routinely downgrade serious charges to minor ones.

"We're going to be able to see if the ethics system is actually working as advertised," Paff said.

The Oregon system does not work as advertised.

One way around "unauthorized practice of law" complaints has been to invoke RPC 5.5 which states in pertinent part

A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

Note however Birbrower et al. v Superior Court of Santa Clara, 949 P.2d 1 (1998) about New York lawyers in California.

John McGuckin Jr. wrote an article about Birbrower which included text:

Under Birbrower, a New York lawyer who attends a meeting in San Francisco for a California client (and probably a non-California client as well), and faxes or e-mails an opinion letter or form to a California client (or even gives oral advice to a California client by phone) is probably engaging in the unauthorized practice of law.

The Birbrower analysis has a broad implication for any lawyer with a mobile, multi-state practice. If other states follow the Birbrower rule (and Oregon already has), a New York attorney who responds to an e-mail from a Boston client has committed UPL in Massachusetts. A Philadelphia estate planner who answers e-mails on her laptop at Chicago's O'Hare airport, enroute to Santa Fe to meet with a client may be committing UPL both in Illinois and in New Mexico. A Washington, D.C., patent lawyer or Atlanta employment expert who builds up a national practice may be committing UPL in other states every time she provides legal services to her clients.

In the California decision, Justice Ming Chin went on to describe how engaging in the unauthorized practice of law did not necessarily depend on the unlicensed lawyer’s physical presence in California. "Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated Section 6125, but it is by no means exclusive," Chin wrote. "For example, one may practice law in the state ... although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer or other modern technological means." See Birbrower, 17 Cal.4th 119, 128-129.

In part, the California case relied on a North Dakota decision. In Ranta v. McCarney, 391 N.W. 2d 161, 164 (N.D. 1986), the North Dakota Supreme Court held that a Minnesota lawyer could not recover any fees for legal work performed in North Dakota.


A different RIchard Gutman (of Exxon):

Richard E. Gutman
Co–Chair Committee on Corporate Counsel


The Business Law Section of the New York State Bar Association appreciates the Commission's invitation in Release No. 33-8150 (the "Release") to comment on proposed rules (the "Proposed Rules") to implement § 307 of the Sarbanes-Oxley Act of 2002 (the "Act").


The definition of "appearing and practicing before the Commission" should be confined to attorneys who provide legal services related to an issuer's compliance with the securities laws

The definition of "appearing and practicing before the Commission" in §205.2(a) is vastly broader than the definition in existing Rule 102(f) of the Commission's Rules of Practice and sweeps in, intentionally or unintentionally, any person who happens to have a law degree and has any contact, no matter how remote or immaterial, with the registration or disclosure process. When read in conjunction with other provisions of the rules, the definition of "appearing and practicing" sweeps in a company's patent attorney whose firm has been requested by securities counsel to review one section of a business description contained in a registration statement or periodic report because it has represented the company in areas of patent applications.


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