Source: OTHERWISE: Opinion 745 -New Jersey Ethics Committee bars referral fees to out of state lawyers

The New Jersey Supreme Court’s Advisory Committee on Professional Ethics has faced a recurring question: may a New Jersey Certified Trial Attorney pay a referral fee to an out of state lawyer? Opinion 745 answers the question.  Mostly in the negative.

Bounded by New York and Pennsylvania, with many citizens andy members of the State Bar part-time residents of Florida, the question arises frequently..

 The Rules of Professional Conduct generally  New Jersey lawyers from paying referral fees. RPC 7.2(c) (lawyers shall not “give anything of value to a person for recommending the lawyer’s services”) and RPC 7.3(d) (lawyers “shall not compensate or give anything of value” to a person for recommending the lawyer’s employment by a client or “as a reward for having made a recommendation resulting in the lawyer’s employment by a client”). Referral fees are a division of the legal fee not reflective of work participation.

But the state’s 35 year old system of certification of specialists has from the first treated Certified Trial Attorneys differently.  New Jersey lawyers who are certified trial lawyers under Court Rule 1:39-1 through 1:39-9 may pay a referral fee.  Certification is achieved by demonstration of substantial trial experience, peer recognition, and passage of a written test on the Rules of Evidence.  Certified trial lawyers may and do advertise their readiness to pay referral fees regardless of work participation, and without the referring attorney assuming joint professional liability.

Under New Jersey’s Rules of Court published Opinions of the seventeen member ACPE bind members of the bar.  But any lawyer and any bar association may petition the Supreme Court for review.

– GWC

OPINION 745 Referral Fees 

The Advisory Committee on Professional Ethics and the attorney ethics research assistance hotline have received inquiries about out-of-state lawyers seeking payment of referral fees from New Jersey certified attorneys. Some states, such as Florida, host seasonal New Jersey residents who present local lawyers with legal issues that involve New Jersey law; out-of-state lawyers in our neighboring states may also have local clients with New Jersey matters. For the reasons set forth in this Opinion, certified lawyers generally may not pay referral fees to out of-state lawyers. 

Certified lawyers also may not pay referral fees to New Jersey lawyers who cannot accept a case, or must withdraw from a case, due to a conflict of interest. Certified lawyers may, however, pay referral fees to New Jersey lawyers who referred a case when they were eligible to practice but were thereafter suspended or disbarred when the case resolved and the referral fee was payable.

****** 

Opinion 745 concludes:

In sum, certified lawyers may not pay referral fees to out-of-state lawyers unless those out-of-state lawyers are licensed and eligible to practice law in New Jersey. In addition, certified lawyers may not pay referral fees to a lawyer who 6 cannot handle a matter due to a conflict of interest, though they may pay referral fees to lawyers who referred a case when they were eligible to practice but were suspended or disbarred at the time the case resolved and the referral fee was payable. 

Source: OTHERWISE: ABA Issues Paper on RPC 5.5 Multi-jurisdiction licensing

Center for Professional Responsibility Working Group on ABA Model Rule of Professional Conduct 5.5:  Issues Paper For Comment: Regulatory Issues Associated With Possible Amendments to ABA Model Rule of Professional Conduct 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law) 

The American Bar Association Professional Responsibility Working Group on Rule 5.5 Multi-jurisdiction practice on January 16, 2024 issued a discussion paper on Model Rule 5.5 . The ABA paper responds warmly to a proposal by the Association of Professional Responsibility Lawyers. At its heart the APRL proposal [slides] is to permit anyone admitted in any state to practice before any court in the country. 

States would retain their disciplinary authority, lawyers suspended in one state or jurisdiction would not be permitted to practice in any jurisdiction.

The ABA set a short deadline of March 1 for comments.

• George Conk
• 2/242024
• gconk@fordham.edu

Source: OTHERWISE: Ilana Diamond Rovner, 1st woman on 7th Circuit Appeals Court takes senior status

Happy 2024! Here’s my list from the Legal Ethics Roundup for the “Top Ten Legal Ethics Stories of 2023.” Highlights below and full post is at this link.

Story #1 — SCOTUS Adopts (an Unenforceable) Ethics Code
Story #2 — Election Fraud Lawyers – Eight Lawyers Indicted with the Former President; Some Sanctioned/Disbarred
Story #3 News from Texas — The Impeachment/Acquittal of AG Ken Paxton; Bankruptcy Judge Resigns Over Romance; Texas Access to Justice Commission Rejects Non-Attorney Ownership Proposal
Story #4 — All Things Generative AI
Story #5 — The Judicial Conference and (Lack of) Ethics Reform
Story #6 — Lawyer Well-Being and the Duty of Competence
Story #7 — Diversity and the Courts
Story #8 — Litigation Pushing for Nonlawyer Advocates Continues
Story #9 — Judge Pauline Newman Remains
Story #10 — So MANY Headlines on Lawyer and Judicial Ethics

Source: OTHERWISE: TWO Down – Stefanik gloats as Harvard President steps down

https://blackstonetoday.blogspot.com/2024/01/two-down-stefanik-gloats-as-harvard.html

Not a typical legal ethics post…But a warning about how thin are the legal protections against abuse of emergency powers, and how thin is the line that preserves any professional independence of the Department of Justice.

• GWC

Source: OTHERWISE: ‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives – POLITICO

Five non-party amicus briefs were filed in Brown v. Board of Education.  Six if you count the United States of America.  The personal computer so facilitated the preparation, filing, and production of legal briefs that it transformed the practice of law before the United States Supreme Court – ultimately unleashing rafts of advocacy briefs financed by a network of non-profits, many of which have close connections to the man who is likely the most influential lawyer in the country today – Leonard Leo. After all, the Federalist Society stalwart and prodigious fund-raiser picked the most recent three lawyers to join the high court: Associate Justices Neil Gorsuch, Brett Kavanaugh, and Amy Barrett.

keep reading

By George Conway, Michael Luttig, and Barbara Comstock

Standing up for the principles of constitutional governance

Source: NY Times Op-Ed: “Building a Pro-Democracy Conservative Legal Movement” – Society for the Rule of Law 

Read our guest essay in The New York Times by J. Michael Luttig, Barbara Comstock, and George Conway: “America Needs a Pro-Democracy Conservative Legal Establishment.”

In it they write:

“American democracy, the Constitution and the rule of law are the righteous causes of our times, and the nation’s legal profession is obligated to support them. But with the acquiescence of the conservative legal movement, these pillars of our system of governing are becoming increasingly imperiled, and the dangers will only grow should Donald Trump be returned to the White House next November …

We must rebuild a conservative legal movement that supports and defends American democracy, the Constitution and the rule of law.”

As the authors write, the events of the past several years have shown that many of the existing players and institutions have “failed to respond in this period of crisis.” That’s why we started the Society, to push back on these failures and create a pro-Constitution alternative.

Read the entire piece here.

On my blog Otherwise I have linked some of the flood of commentary about the Supreme Courts announcement of a guiding Code of Conduct.

Below are teaching materials I have prepared for my class which you may find helpful.

• George Conk

Source: OTHERWISE:

Source: OTHERWISE: Supreme Court Adopts First Code of Judicial Conduct for Itself

Spurred by reports of personal favors and luxury travel funded by wealthy benefactors, the United States Supreme Court, for the first time since the passage of the Judiciary Act of 1789,  has adopted a Code of Conduct governing its own members.   The new code closely resembles that of the Code of Conduct for United States Judges.  But contrary to the maxim that noone should be a judge in their own cause no procedure has been adopted for enforcement of the new Code. That is unlike the states, each of which has an established procedure for enforcing judicial discipline .

Like other judges of the federal courts the Justices have Constitutional grants of life tenure and their salaries may not be reduced during their tenure.  They may be removed only by impeachment for high crimes and misdemeanors..  Impeachment requires a majority vote of the House of Representatives, and conviction a 2/3 vote of the United States Senate. The Supreme Court today announced no procedure for enforcing their newly embraced Code.  In 1980 the Judicial Conduct and Disability Act.  

In 2019 the Judicial Conference  established a procedure for complaints about judicial conduct or disability.  The disciplinary system relies on referral of complaints to the Chief Judge of a court.  There is no distinct, staffed adjudicative body for disciplinary complaints against United States Judges who are protected by the Article III Constitutional grant of life tenure and irreducible compensation.

– George Conk

November 13, 2023

Source: OTHERWISE: Trump faces cross examination today after being twice held in contempt, and his lawyers reprimanded

Former President Trump faces cross examination today in the New York civil fraud case against him and his companies after being twice held in contempt, and his lawyers reprimanded.

The Wisconsin Legislature sought to intervene in an original action in the state’s Supreme Court – a challenge to Wisconsin Legislative Districts. The Legislature moved to disqualify recently elected Associate Justice Janet Protasiewicz.  The state’s high court is sure to soon face challenges to the electoral districts in a body   drawn to the advantage of Republican candidates, who hold a near super-majority even though in the past five years a majority of Wisconsin votes have gone to Democrats.

The Legislature moved to have Protasiewicz recuse, asserting her gratitude for the Democratic party’s $9.9 million spent in support of her 11 point win  risked bias in a redistricting decision.  Some have threatened to move to impeach her before she decides a single case.  The Justice, in Wright v. Wisconsin Elections Commission refused to recuse.  IN a 47 page opinion she  declared:

Allowing politics or pressure to sway my decision would betray my oath and destroy judicial independence. As [conservative former] Justice [David T.] Prosser[,Jr.]  has warned, unjustified recusal can affect the integrity of the judicial branch: “Successful recusal motions alter the composition of the Wisconsin Supreme Court, so that, in a very real sense, a party moving for a justice’s recusal is trying to change the composition of the
court that will hear its case.”

• GWC

In 2010, I wrote a law review article called “The Supreme Court’s Increased Attention to the Law of Lawyering: Mere Coincidence or Something More?” I described what has turned out to be the high-water mark for cases involving legal ethics issues take up by the Supreme Court in a particular term. There were seventeen — seventeen! — such cases during the 2009 Term.

You can read the full article here if you want to know more about the cases from the 2009 Term. If you’re wondering what happened after 2009, I haven’t kept a perfect count. But, in the 2010 Term the Supreme Court decided eight cases involving legal ethics and opened with seven during the 2011 Term. We’ve not since seen numbers like in 2009, however.

But what about the Supreme Court’s docket for the upcoming term? So far we are nowhere near seventeen, but to be fair the Court has only granted cert to a few dozen cases to date (as of 9/29). Yet even with this small number of cases in the mix, there are several to watch involving legal ethics issues. You’ll find a comprehensive overview at the Legal Ethics Roundup.

Source: Criminal charges add twist to Trump lawyers’ disciplinary cases

When Georgia prosecutors accused former President Donald Trump of election interference in August, the outsized influence of lawyers in the alleged conspiracy veered sharply back into focus.

The indictment in Fulton County Superior Court charges 19 defendants with violations of Georgia’s Racketeer Influenced and Corrupt Organizations—RICO—Act, and 40 other charges.

Eight defendants named in the sprawling criminal case are lawyers: including Rudolph Giuliani, Jeffrey Clark, Sidney Powell, Jenna Ellis, Kenneth Chesebro, Ray Smith III, Robert Cheeley and John Eastman. Giuliani and Eastman are charged in the indictment with conspiring with the former president to push a slate of pro-Trump electors from several swing states, including Georgia, in the failed bid to reverse his 2020 election defeat. Chesebro is accused of writing several memos to support the plot to have the electors certify that Trump, not Democrat Joe Biden, was the winner.

On Tuesday, Aug. 22, Eastman’s mugshot and fingerprints were taken at the Fulton County jail in Atlanta. Two days later, he was back in the austere surroundings of the disciplinary courtroom in Los Angeles, seated between his attorneys, with just a few people watching from the gallery. When his disciplinary trial began in June, he was just fighting for his professional career. Now facing criminal liability, much more is at stake than just his law license.

The criminal case could overshadow his bar trial. But Michael J. Teter, the managing director of the 65 Project, a bipartisan group formed by members of the legal community to file complaints against Trump lawyers for professional misconduct, says disciplinary action is important so the same conduct “does not become part of the political arsenal in the future.”

“Lawyers take an oath, and they have a responsibility that’s not just to their client but to the larger legal community, to the profession and to democracy. When you have lawyers who are working against the rule of law [it’s important] to bring a comprehensive system of accountability,” Teter says.

65 Project Advisory Board member Renee Knake Jefferson adds that there also is a deterrent effect in disciplinary trials and says they are important for public confidence in the legal profession, which is self-regulated.

“It’s important that there are consequences in that regulatory process when a lawyer engages in this kind of behavior,” says Jefferson, a law professor and legal ethics expert at the University of Houston.

Source: OTHERWISE: 60 Years -Since the Birmingham Church Bobming Civil Discourse with Joyce Vance

Source: OTHERWISE: ABA makes changes to Model Rule 1.16 Declining or Terminating Representation

**The amended Model Rule added language that “[a] lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation.” The Model Rule was further amended to state that a lawyer shall withdraw if “the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct.”

It is surprising how little law students know about potential careers in legal ethics and professional responsibility. In an effort to spread the word about opportunities, I’ve started collecting them as part of my Legal Ethics weekly roundup. Here’s a link to current job postings, and it is updated Monday mornings.

And a new edition of the Legal Ethics weekly roundup is out! Check it out here: Legal Ethics Roundup No. 5 – (08.28.23)Lawyer Mug Shots, Duty of Competence Includes Well-Being, Paxton May Testify, Diversity in U.S. and Australia, Eastman Discipline Trial Resumes & More

If you’re teaching Professional Responsibility this semester, you’ve got an incredibly rare opportunity to show students how a disciplinary trial happens! Starting today at 10AM pacific and continuing at least through this week, the California State Bar proceedings against John Eastman are being broadcast live. The schedule is here and the link to watch is here. UPDATE: The Eastman hearings have been postponed and are now scheduled to begin Thursday to allow for his surrender today to authorities in Fulton County.

And another issue of the Legal Ethics weekly roundup is out. Highlights include:

*Top 5 Ethics Headlines: 1) Eight Lawyers Indicted; 2) Rasa Legal Lands $1.1M; 3) Judge Defends TikTok Videos; 4) More on #MeToo in Legal Academia; and 5) Mandatory Religious Training as a Sanction.

*Ethics Reform Watch: New poll shows majority of Americans want Congress to reform SCOTUS & more.

*Recommended Scholarship from Jesse Rothstein, Albert Yoon, Richard Painter, Jim Moliterno, Nancy Rapoport, and Judge Cynthia Norton

*Lawyer of the Week – Fulton County District Attorney Fani Willis

*Judge of the Week – Judge Yvette Roland

*Plus jobs, events, and more!

A new edition of the Legal Ethics roundup is out! This week we cover the continuing saga of Supreme Court v. Congress on ethics, Eastman’s request to postpone his discipline trial, the NJ Supreme Court’s expansion of its Attorney Ethics Office, Chat-GPT in law school applications, a #MeToo reckoning for the legal academy, the passing of Judge Rosemary Pooler, and much more! Regular features include job postings, ethics in history, recommended reading, and upcoming events. Read it all here! https://legalethics.substack.com/p/legal-judicial-ethics-roundup-no-3-scotus