New Jersey to allow disbarred lawyers to apply for reinstatement after five years

What is the worst type of (or highest level of) discipline?   If you thought "disbarment" you would be wrong.  The correct answer is permanent disbarment, because in most jurisdictions disbarred lawyers can be reinstated after a period of time.  

And last week, New Jersey decided to join that majority of jurisdictions.  As reported in the ABA Journal, according to a recent order of the state's supreme court "New Jersey lawyers who are disbarred will in most cases be allowed to apply for reinstatement after five years."  New Jersey now joins 41 other states and the District of Columbia in allowing disbarred attorneys to seek readmission. 

Having said that, the NJ supreme court retained the authority to impose permanent disbarment in future egregious cases and to block successive applications for reinstatement for particular attorneys on a case by case basis.  

Is it justified to impose disciplinary sanctions if the lawyer has received a presidential pardon?

 Is it justified to impose disciplinary sanctions if the lawyer has received a presidential pardon?  New Jersey thinks so.  Here is the story, as reported in the Legal Profession Blog.  

New Jersey finds that practicing law remotely is not unauthorized practice of law

New Jersey’s Committee on the Unauthorized Practice of Law joined with the Advisory Committee on Professional Ethics to issue Joint Opinion 59/742 which holds that lawyers who work remotely from a state in which they are not admitted do not necessarily engage in the unauthorized practice of law.  You can read the opinion here, and comments on it here and here.

New Jersey Supreme Court on arbitration clauses in attorney retainer agreements

Late last year, the New Jersey state supreme court held that law firms that want to include mandatory arbitration provisions in their client engagement agreements must explain to the client the benefits and disadvantages of arbitrating a prospective dispute.  The case is called Delaney v. Dickey, and you can read it here.

The Law for Lawyers Today has a comment here.

NJ Supreme Court validates use of mandatory arbitration clauses in retainer agreements

The New Jersey Supreme Court in Delaney v. Sills has validated the use of retainer agreements that provide that all disputes between attorney and client shall be subject to arbitration. On the other hand, the court emphasizes that the fiduciary nature of the attorney-client tie requires candid explanation to the client of the advantages and disadvantages of the arbitral forum.

In my opinion, mandatory arbitration agreements are inherently bad for consumers and lawyers should not be allowed to impose them on their clients.  I am glad that the court says lawyers have an obligation to explain the pros and cons of arbitration, but what good does that do when prospective clients are all but forced to accept it if they want the lawyer of their choice?  

The court summarized its decision as follows:

For an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. . . . That information can be conveyed in an oral dialogue or in writing, or by both, depending on how the attorney chooses best to communicate it. The Court refers the issues raised in this opinion to the Advisory Committee on Professional Ethics (ACPE), which may propose further guidance on the scope of an attorney’s disclosure requirements. The new mandate will apply prospectively, except as to Delaney, who must be allowed to proceed with his malpractice action . . .. 

George Conk (a member of the ACPE) has a detailed comment on the decision here.  The Louisiana Legal Ethics Blog has a comment comparing the decision with the current state of the law in Louisiana.

New Jersey considers adopting exception to duty of confidentiality to prevent or remedy wrongful convictions

Long time readers of this blog might remember an incident reported a few years ago out of Chicago that involved two lawyers who came forward to disclose that they knew that a man named Alton Logan had been convicted (and sentenced to life) 26 years earlier for a crime he did not commit.  The lawyers had not disclosed the information sooner because they had obtained the information from one of their own clients, who had confessed to them that he had committed the crime for which Alton Logan had been convicted.

At the time of the confession, the lawyers tried to obtain consent from their client to disclose the confidential information, but they were only able to get him to consent to disclose after his death...  and then he proceeded to live for another 26 years.

When the lawyers finally came forward, the incident got national coverage (including a segment in the TV show 60 minutes) and sparked a debate on whether states should recognize an exception to the duty of confidentiality to allow lawyers to disclose information when reasonably necessary to prevent or remedy a wrongful conviction.

Attempts to amend the ABA Model Rules for this purpose have never progressed very far within the ABA, but there are two states that currently recognize such an exception (Massachusetts, and Alaska).  Soon there may be three.  (North Carolina has a rule imposing a duty to disclose information but, oddly, it does not operate as an exception to the duty of confidentiality because it does not allow disclosure if the disclosure is against the interest of a client or former client.)

The New Jersey Supreme Court recently published a task force report with a recommendation to adopt an exception to the duty of confidentiality to require lawyers to disclose information that demonstrates that an innocent person has been wrongly incarcerated.

The recommendation, however, was not unanimous and there is a strong dissenting opinion. Also, the task force members who were in the majority were divided on whether the exception should be mandatory or permissive.

You can read the report here.

Recognizing that lawyers who reveal client confidences to remedy a wrongful incarceration necessarily harm their own client, the majority concludes that that disclosure of such information strongly serves the interest of justice and enhances public confidence in the criminal justice system. "On balance," the report states, "an exception for this purpose is justified because the suffering of the wrongly incarcerated person is great, while the universe of confessing clients is likely to be exceptionally small."

The exception to the duty of confidentiality related to wrongful convictions in two of the three states that currently have such an exception is permissive.  In North Carolina, there is a mandatory duty to disclose, but it has such restrictions that make the duty a very limited one.  As stated above, the rule does not allow disclosure if it is against the interest of a client or former client, which means that the disclosure is not allowed as an exception to the duty of confidentiality.

Interestingly, the New Jersey task force members who support the adoption of a new exception to the duty of confidentiality were divided on whether the new rule should be mandatory or permissive.  The majority proposed a mandatory duty to disclose, but again, this was not a unanimous position.

In contrast, a strong minority of the task force, including representatives of the Offices of the Attorney General and Public Defender, opposes a new exception to the duty of confidentiality arguing that lawyers should not disclose (much less be forced to disclose) information that is likely to expose their clients to criminal liability because the proposed exception would require lawyers not only to betray their clients, but also to inflict direct harm on them.

This is a very difficult question for me because I can see the strengths in both sides of the argument and, for that reason I have changed my mind back and forth thinking about it over time.

Given the inadequacies of our criminal justice system, I find the argument for an exception compelling but I can also see the obvious clash with one of the most fundamental values that we hold as a profession.

So, help me decide.  What do you think?

New Jersey Supreme Court reiterates generally accepted notion that even if information is available to the public it is confidential if it is not generally known

As I am sure you know, subject to some exceptions that are not relevant here, lawyers have a duty to keep confidential information secret.  Yet, students and lawyers sometimes have a hard time defining what is considered to be "confidential information."  In particular, sometimes they think that if the information is "public," it is by definition not confidential.

The problem is that it is not that simple.  It depends on what you mean by "public." One thing is to say that the information is "public" because it is widely known to the public; but is a different thing to say that information is "public" because it is contained in a public record that is available to the public.

For this reason, the generally accepted definition of confidential information does not use the adjective "public."  According to this definition, confidential information is information related to the representation that is not generally known.  (A couple of years ago, the ABA issued an ethics opinion clarifying the notion of generally known information.)

Thus, information can be public (in the sense that it is available to the public) but not generally known, in which case, the fact that the information is public does not change the fact that it is still confidential.  

I am writing about this today because a recent decision by the New Jersey Supreme Court, again reiterates that this distinction is important and can result in problems for lawyers, often when the lawyers discuss information about former clients.  

The case is called In the Matter of Calpin, and the facts are similar to many other cases that have raised this issues in recent years.  A client (or former client at the time) wrote a negative review about the lawyer in Yelp! and the lawyer decided to reply by, among other things, disclosing some information about the client.  The information was "public" in the sense that it was available in public records, but is was not generally known and for that reason the court held that the lawyer violated the duty of confidentiality.

You can read more about the case here; and you can read the opinion here.

To my knowledge, only on case (Hunter v Virginia State Bar, 744 S.E.2d 611 (Va. 2013)) has held that the state can not discipline a lawyer who discloses public information that is not generally known.

How not to (start the) practice of law -- UPDATED

Original post: March 22, 2020

It has been a while since I posted a story to our running count of "how not to practice law" category, so I here is one.  Unfortunately, this is not the first time I have seen a case with the same or similar facts.

So you say you want to start working as a lawyer in a good firm.  Presumably a great firm, even.  But your resume is not quite up to par.  Here is what not to do:  Lie.  Cheat.  Alter your transcripts.

Yes, folks, once again, we have another winner in our ranks.  This wanna be lawyer altered the law school transcripts 26 times to make it look better. The lawyer falsified the transcript to reflect, among other things, grades that were higher than he had received, high grades in courses that he had never taken, and a cumulative GPA of 3.825, rather than the 3.269 that he had actually achieved.

For that he was charged with multiple violations of rule 8.4, and the Disciplinary Review Board recommended a two year suspension.  The New Jersey Supreme Court, however, lowered the sanction to one year.  Which penalty would you have voted for?

The case is In re Seth Asher Nadler (March 13, 2020).  The Legal Profession blog has more details.


UPDATE March 24, 2020:  Above the Law has a comment on the case here.

Should a public defender be protected by a state torts immunity act?

Just a few days ago, the New Jersey Supreme Court heard oral arguments in a case that should be called Chaparro Nieves v. Office of the Public Defender (but is being mistakenly identified as Nieves v. Office of the Public Defender)** in which the Court has been asked to decide whether the Office of the Public Defender should be covered by the state's Torts Claims Act.

In this case, the plaintiff had been incarcerated for twelve years on serious charges, including first-degree aggravated sexual assault, when the charges against him were dismissed on his petition for post-conviction relief.  At some point thereafter, he filed a legal malpractice complaint against the public defender's office and an individual lawyer.  The trial judge denied defendants' motion for summary judgment as to the legal malpractice claim but the Appellate Division reversed, holding, among other things, that it is clear that the office of the public defender is a public entity and public defenders are public employees that come within the Tort Claims Act’s immunities and defenses.  You can read that opinion here.

The case is now before the Supreme Court where Professor George W. Conk, of the Louis Stein Center for Law & Ethics at Fordham University School of Law, argued on behalf of the New Jersey State Bar Association urging the Court to affirm the Appellate Division’s decision to apply the TCA to the legal malpractice claims.  The Bar Association's statement concludes that "[c]ompetent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs. Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill served."

You can read the full statement of the Bar Association here.


** I say the case "should be called" that because I have seen it referred to everywhere as just Nieves v.  Office of the Public Defender, which shows ignorance about the use of two last names in the Latin American tradition.  The plaintiff's name is Antonio Chaparro, not Antonio Nieves.  But that is just a pet peeve of mine and I will leave it at that.

New Jersey Supreme Court rejects mandatory malpractice insurance, embraces disclosure of coverage

George Conk, of Professional Responsibility: A Contemporary Approach, is reporting that the New Jersey Supreme Court has issued a "Notice to the Bar" adopting only some of the  recommendations of its Ad Hoc Committee on Attorney Malpractice Insurance.  Among its conclusions, it rejects the notion that all private practitioners should be obligated to have malpractice insurance. However, the court decided to retain a rule that all limited liability firms must carry insurance. Also, the Court announced that it will revisit at an unspecified date whether attorneys who lack coverage should be required to disclose that fact.

NJ Supreme Court rejects request to review opinion on Avvo legal services -- UPDATED

About year ago, the Advisory Committee on Professional Ethics, the Committee on Attorney Advertising, and the Committee on the Unauthorized Practice of Law of the Supreme Court of New Jersey issued an opinion holding, among other things, that it would be unethical for New Jersey lawyers to participate in Avvo Legal Services.

In response, Consumers for a Responsive Legal System, an organization that represents Avvo and other online companies providing lawyer referrals, petitioned the NJ Supreme Court to review the order.  But earlier this month, the court denied the petition.

Responsive Law executive director Tom Gordon said in a statement that, “by summarily declining to review the decision … [the court] has abrogated its responsibility to engage in active supervision of the bar’s anti-competitive conduct.”

This statement is, of course, a reference to the holding of the U.S. Supreme Court's decision in North Carolina State Board of Dental Examiners v. Federal Trade Commision, in which the Court found regulation of a profession is subject to antitrust regulation if it is exercised by market participants unless there is active supervision by a government agency.  In other words, the organization (and Avvo) are gearing up to argue that the system of self regulation used by the legal profession violates antitrust principles.

On the other hand, the NJ State Bar Association issued a statement stating, in part, that “The court’s decision to let stand the joint opinion is an important . . . provides clarity for New Jersey lawyers and protects consumers" and that “[t]he association has increasingly grown concerned about the number of organizations that have sought to open the door to fee sharing, which could interfere with a lawyer’s independent professional judgement, and with the concept of organizations providing legal services when they are not bound by the same ethics rules that guide attorneys.”

I am not sure that both statements are entirely accurate.  The fact that the court denied the petition does not mean it did not exercise supervision.  If it reviewed the petition, it exercised supervision.  Avvo just doesn't like the result.  That does not make the review insufficient; it just makes it unfavorable to its position.

On the other hand, the statement by the Bar Association, is not entirely convincing either.  It suggests that Avvo is "providing legal services," which it does not do.

For more on the court's denial of the petition, go here.

UPDATE 7/6/18:  Lawyer Ethics Alert Blogs has an update here.

Avvo responds to NJ Opinion

Last month I reported (here) that three committees of the New Jersey Supreme Court issued a joint opinion concluding that it would be unethical to participate in Avvo Legal Services.  A few days ago, Avvo's Chief Legal Officer posted a reply to the opinion in the blog Socially Awkward.  The reply is short and, in my opinion, weak.  All it does is repeat some of the arguments the opinion rejected.  It also gets the constitutional standard that applies to the commercial speech doctrine wrong (as I have pointed out in the past).

For some of my previous posts on Avvo go here, here, here, here, here, here, here, here, here, and here.

Three committees of the New Jersey Supreme Court issue opinion holding that it is unethical to participate in Avvo Legal Services; also affects Legal Zoom and Rocket Lawyer but for different reasons

The Advisory Committee on Professional Ethics, the Committee on Attorney Advertising, and the Committee on the Unauthorized Practice of Law of the Supreme Court of New Jersey recently issued an opinion holding, among other things, that it would be unethical to participate in Avvo Legal Services.  You can read the opinion here.

This comes as no surprise to me since I have argued both here and in a law review article (available here), that under the current regulatory system, Avvo Legal Services puts lawyers in positions to violate a number of rules and that Avvo's arguments to the contrary are not convincing.  All the opinions addressing the question so far have reached the same conclusion.  See here.

The opinion from the New Jersey committees is short and well written and addresses most, if not all, the arguments I have been discussing regarding Avvo's claims.  And it reaches pretty much the same conclusions I reached in my article, concluding that New Jersey lawyers may not participate in Avvo legal service programs because the programs improperly require the lawyer to share a legal fee with a non-lawyer in violation of Rule of Professional Conduct 5.4(a), and to pay an impermissible referral fee in violation of Rule of Professional Conduct 7.2(c) and 7.3(d).

Interestingly, Avvo was able to respond to the inquiry addressed by the committees before the opinion was issued and it seems it made the same arguments it has been making elsewhere and that I have discussed before.  The opinion rejects them all for pretty much the same reasons I described in my article.

For example, Avvo argued that its fee scheme does not constitute sharing fees with a non-lawyer because it is a "marketing fee."  About this, the opinion concludes that the fact that Avvo refers to its fee as a “marketing fee” does not determine the purpose of the fee or negate the fact that paying it constitutes sharing a fee with a non-lawyer.

Similarly, I have argued that the fact that Avvo’s fee varies depending on the value of the legal fee creates the impression that  the  lawyer  is  paying  Avvo  a  percentage  of  the  legal  fee,  which  is precisely what the ban on sharing fees with a non lawyer prohibits.

On this, the New Jersey opinion concludes that the fee lawyers pay to Avvo is not for marketing because "it is a fee that varies with the cost of the legal service provided by the lawyer, and is paid only after the lawyer has completed rendering legal services to a client who was referred to the lawyer by Avvo."   Further, it states:

Avvo claimed that the “marketing fee” is not a referral fee but an advertising cost, and because the “marketing fee” is a separate transaction, there is no improper fee sharing. The label and timing of the fee does not transform it into an advertising cost. This fee varies depending on the cost of the legal service provided, which is inconsistent with the essential elements of an advertising cost. Avvo defended the varying amounts of its “marketing fees” by stating that in the online market, bigger-ticket services should have bigger-ticket fees. It stated that it spends more to advertise the range of services and takes a bigger payment processing risk for more expensive services. The Committees are not convinced that the sliding scale of fees for legal services rendered bear any relation to marketing.

Moreover, as I pointed out in my article, according to the drafters of the Comment to Model Rule 7.2, a fee paid to a non lawyer for a client lead should not be contingent on a person’s use of the lawyer’s service because “[s]uch a fee would constitute an  impermissible  sharing  of  fees  with  non lawyers  under  Model  Rule 5.4(a).”  Since a lawyer does not have to pay a fee to Avvo unless a client chooses the lawyer, the fee seems to be “contingent on a person’s use of the lawyer’s  service.”  Thus,  paying  the  fee  to  Avvo arguably constitutes  a violation of the ban on fee sharing and, as a consequence, of Model Rule 7.2.

Once again, the New Jersey opinion agrees with my analysis when it concludes that "[w]hen the lawyers pay a fee to the company based on the retention of the lawyer by the client or the establishment of an attorney-client relationship, the answer to the inquiry is simple: the company operates an impermissible referral service."

Finally, the opinion addressed Avvo's contention that fee sharing with non-lawyers is not inherently unethical.  According to this argument it is unethical only if it results in an interference with the lawyer's independent professional judgment.

In my article I explained that Avvo's argument is wrong because, at least as far as the text of the Model Rule is concerned, unless allowed by one of the specific exceptions, splitting fees with a non lawyer is inherently unethical. The rule does not say that sharing a fee with a non lawyer is unethical only if it interferes with the attorney’s independent professional judgment; it says sharing a fee is unethical because it is a threat to an attorney’s independent professional  judgment. Clearly,  part  of  the  policy  behind  the  rule  is  to protect the attorney’s independent professional judgment, but that does not mean that the interference needs to be shown in order for the rule to apply.

And, again, the New Jersey opinion agrees:

Avvo further asserted that fee sharing is only unethical if it compromises the lawyer’s professional judgment. The Committees acknowledge that concerns about independent professional judgment undergird the prohibition on sharing legal fees with nonlawyers. But the precedent in New Jersey, in case law, opinions, and the language of the Rule of Professional Conduct itself, do not restrict the prohibition to situations where there is a clear connection between the fee sharing and the lawyer’s professional judgment. . . .  Sharing fees with a nonlawyer is prohibited, without qualification.

The opinion also addressed certain services offered by LegalZoom and Rocket Lawyer.  It found they also violate the rules, but for other, easy to address, reasons.  The opinion held that these programs are different than Avvo's because they operate as legal service plans and that, therefore, New Jersey lawyers may not participate in the plans until they are registered with the Administrative Office of the Courts.  This is a setback for LegalZoom and Rocket Lawyer, but one that should be easy to solve by registering the programs accordingly.

Simple Justice has a comment on the New Jersey opinion here.  (He agrees with me.)
My Shingle has a comment here.  (She does not.)
Above the Law comments here.
The Law for Lawyers today comments here.

Now back to the issues related to Avvo Legal Services, I want to reiterate something else I have stated in the past.  Saying that participating in Avvo Legal Services would violate the rules is not the end of the debate.  The more interesting question is whether the rules should be changed to accommodate what Avvo wants to do.  That is not addressed by the New Jersey opinion.  As I reported recently, though, it is under review in North Carolina and, perhaps in Oregon.

In other words, I think Avvo is going at this all wrong.  It should not be arguing that participating in its services does not constitute a violation of the rules.  Given the current rules, that argument is weak.  What it should be doing is arguing that the rules should be changed to allow it to do what it wants to do and to allow lawyers to participate.  That is a better approach, which may yield better results for Avvo.  What happens in North Carolina will tell.

Court of Appeals for the Third Circuit declares unconstitutional NJ rule banning use of quotes from court opinions

Back in 2012, in response to a complaint filed by a judge, the New Jersey Supreme Court approved a new ruled that stated that an attorney “may not include, on a website or other advertisement, a quotation or excerpt from a court decision (oral or written) about the attorney’s abilities or legal services.” The attorney whose ad had initiated the whole discussion on the issue challenged the rule in federal court and the Court of Appeals for the Third Circuit recently declared the rule unconstitutional.  I agree with the result.  Lawyer Ethics Alerts Blog has a good summary of the case here.

Court of Appeals for the Third Circuit finds that NJ rule regarding advertising is unconstitutional

In a case called Dwyer v. Cappell, the Court of Appeals for the Third Circuit has found that a certain rule adopted in New Jersey to ban attorneys from quoting judges (saying good things about the lawyers) in the lawyers' ads violates the First Amendment.  The opinion is available here.

In this case, a lawyer had posted on his website quotes from judicial opinions in which judges praised the lawyer's work. After the lawyer refused a request by a judge to remove a quote from his website, the state adopted a new rule that prohibits quotes from judges, but that allowed posting a full opinion.

As I understand it, the new rules was based on several arguments:  (1) that statements in an opinion discussing a lawyer’s work do not constitute an endorsement; (2) that the use of the quotes could make judges could appear biased in favor of certain attorneys and (3) that quotes taken from opinions could be taken out of context.  For this reason, and to avoid operating as a complete ban on speech, the rule allowed the use of the full opinion.

In sum, the three arguments are just expressions of the most common argument used by states that want to limit attorneys' speech: that the speech is "misleading."  And this is the most common argument because misleading speech is not protected speech.

Yet, the Court was not persuaded.  Because the use of the quotes is at worst "potentially misleading," the validity of the rule should be analyzed under the standard used for commercial speech as developed by the Supreme Court starting in Bates and Zauderer.  And using that analysis, the rule fails.  

On the other hand, the Court did not leave the state empty handed.  It suggested that because the information could be potentially misleading, the state could impose the use of a disclaimer to explain the origin of the quote and to state that the quote does not necessarily constitute an endorsement by a particular judge.

New Jersey Appellate Court holds that a convicted criminal defendant does not have to show innocence to support a malpractice claim (if the defendant pleaded guilty)

As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime.  However, there are a few jurisdictions (last time I checked it was four) that have decided there is no need to show actual innocence.

A new case from New Jersey addressed the issue and found no need to show actual innocence while suggesting the requirement should still apply to most cases.  The court tries to make a distinction; but I don't buy it.

In this case, Cortez v. Gindhart, the defendant pleaded guilty to criminal charges but later brought a malpractice claim based on his trial counsel's alleged failure to follow up on the government's suggestion of a possible plea deal.  The lower court dismissed the complaint based on precedent cases in the jurisdiction that required the showing of actual innocence.  The Appellate Court, however found that those cases did not apply and held that the actual innocence requirement is not a requirement in all cases.

The court found that the issue was different because in the older cases, the plaintiffs (former criminal defendants) had claimed they were wrongfully convicted as a result of their public defenders' negligence while in Cortez the plaintiff had admitted his guilt.

According to the court, the claimed injury in Cortez is different because as a result of the alleged negligence, Cortez was deprived of an opportunity to accept a more favorable plea offer and, as a result of that deprivation, he received a harsher sentence.  Based on this, the court then concluded that there is no need for proof of innocence because “negligence in the discharge of duties for a client who pleads guilty may result in actual injury to a client even if guilty.”

I don't find the distinction convincing.  What the court is suggesting is that if a person is guilty of the charged crime, and they get convicted, they got what they deserved.  But what they deserved was a negligent free representation and if they can show that they would not have been convicted but for the negligence then they did suffer an actual injury even if they were guilty.

Assume for example that a criminal defendant is guilty of possession of an illegal substance.  He is guilty because he did, in fact, had the drugs in his possession, but for whatever reason decided to plead not guilty and goes to trial.  But also assume that the police obtained the drugs during an illegal search in violation of the defendant's constitutional rights.  Then assume that the defendant's lawyer negligently failed to file a motion to suppress the evidence which would have been granted and which would have resulted in the exoneration of the defendant or the dropping of the charges because there was no other evidence.  Wasn't the defendant convicted but for the negligence of the lawyer?  Didn't the guilty person suffer an actual injury?

Even if guilty, the criminal defendant in this case claim that that the attorney's negligence resulted in actual injury, just as much as the criminal defendant in Cortez could. I think the underlying argument on which both defendants are basing their claims is the same, and that the analysis of the court should be the same.  In fact, I think the court reached the correct result in Cortez, but it is wrong in holding that the result does not apply to other cases.  It should.  There should be no requirement to show actual innocence; period.

Having said all that, it should be noted that in Cortez the court affirmed summary judgment for the lawyer for a different reason.  The plaintiff could not establish that but for the lawyer's substandard performance the government would have offered—and the client would have accepted—a deal better than the one he eventually took.  In other words, the plaintiff's argument that he would have gotten a better result had it not been for the lawyer's negligence was based on speculation, not on an actual fact.  Had the state made a better offer and the attorney had failed to tell the client, then the client would have had a claim; but since no alternative offer was made, the client could not show that the negligent conduct was the cause in fact of the claimed injury.

New Jersey Supreme Court fails again

I have complained in the past about New Jersey's repeated failures to properly sanction unethical conduct.  See here and here, for example.  Today's example adds to the state's reputation for lax standards.  In this case, the attorney was disbarred in New York in 2011 for commingling and record keeping violations that were deemed not small nor isolated.  The attorney was  later was also disbarred in Colorado, Pennsylvania and in Connecticut.  But when it came to New Jersey, the New Jersey Supreme Court ordered a three-month suspension.  The Legal Profession blog has more here.

NJ Advisory Committee on Professional Ethics recommends to abolish the notion of an attorney's retaining lien

Otherwise is reporting that The New Jersey Supreme Court has invited public comment on a proposal to abolish “common law retaining lien.”  The recommendation comes from the Court's Advisory Committee on Professional Ethics.  The Advisory Committee found the lien to be obsolete and destructive of client relations. The Notice, Report and statement of the State Bar Association are available here.  The Legal Ethics Forum adds a comment here.

The New Jersey approach to sanctions

As Mike Frisch of the Legal Profession Blog recently stated, "there was a time when New Jersey had the reputation for being tough on attorney misconduct. That time has obviously long since passed."  His comment was prompted by a couple of new cases that display what he called "the forgiving nature of attorney discipline in New Jersey."

In the first case, an attorney had been suspended for three months but failed to file the required affidavit demonstrating compliance with the suspension order. He then failed to participate in the ensuing bar proceedings. The Office of Attorney Ethics sought a three-month suspension but the Disciplinary Review Board concluded that no further suspension was appropriate.

In the second case, the attorney was censured for "engaging in the practice of issuing trust checks against uncollected funds" which resulted in negligent misappropriation. He had been reprimanded in 1998 for filing false unemployment insurance claims and again in 2009 for a conflict of interest and failure to withdraw from representation. As a result, while claiming that the attorney's "cavalier attitude toward the disciplinary system cannot be tolerated," the imposed sanction was merely a reprimand.

What do you have to do to get disbarred in New Jersey?!

The Legal Profession blog has a short report on a recent case in which the Supreme Court of New Jersey decided not to disbar an attorney even though the attorney had already faced eight ethics complaints in the past, half of which had resulted in suspensions. To make it worse, it appears that the attorney did not even care to respond to the charges in four of those cases. To its credit, the Disciplinary Review Board had recommeded disbarment. I understand the value in providing second chances but after 4 suspensions and a recommendation by the Board to disbar... C'mon!