Every year, attorneys from across New Jersey gather for the New Jersey State Bar Association’s Hot Tips in Family Law event. Throughout the program, leading matrimonial lawyers give fast-paced advice on pertinent legal issues.
This year, Bobby is speaking about legal ethics and attorney misconduct.
MISCONDUCT UNDER RULE OF PROFESSIONAL CONDUCT 8.4
In the highly adversarial and chaotic environment of family law, we as practitioners oftentimes forget that “The privilege to practice law is [dependent] on an attorney’s ability to maintain a high moral character.” In re Hasbrouck, 140 N.J. 162, 166 (1995). We also believe that we can readily identify when one of our own has engaged in misconduct under the Rules of Professional Conduct. RPC 8.4, Misconduct, is quite specific in its definition:
It is professional misconduct for a lawyer to:
- Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
- Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
- Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
- Engage in conduct that is prejudicial to the administration of justice;
- State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;
- Knowingly assist a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct or other law;
- Engage, in a professional capacity, in conduct involving discrimination (except employment discrimination unless resulting in a final agency or judicial determination) because of race, color, religion, age, sex, sexual orientation, national origin, language, marital status, socioeconomic status, or handicap where the conduct is intended or likely to cause harm.
Discipline under 8.4(c) is often imposed where the record demonstrates intentional misconduct. In re Prothro, 208 N.J. 340 (2011) (attorney made knowingly false statements to disciplinary authority); In re Trustan, 202 N.J. 4 (2010) (attorney violated subsection (c) by making false statements to a third party and offered evidence he knew was false); In re Stahl, 198 N.J. 507 (2009) (subsection (c) violated where attorney made knowingly false statements to legal tribunal and offered evidence he knew was false); In re Tan, 188 N.J. 389 (2006) (discipline imposed where attorney made knowingly false statements on his bar application). Without intent, no discipline will be imposed under subsection (c). In re Uffelman, 200 N.J. 260 (2009) (no discipline imposed under 8.4(c) where no finding was made of intent to misrepresent).
Notably, in the matter of In re Hyderally, the 208 N.J. 453 (2011), the Supreme Court found a lack of clear and convincing evidence that the attorney “either intentionally included the New Jersey Supreme Court Attorney seal, or approved its continued presence, on the website created for him . . .Accordingly, there [was] no basis for a finding, under the applicable standard of proof, that respondent’s conduct constituted ‘dishonesty, fraud, deceit or misrepresentation.’” Considering the degree to which lawyers, especially in the family law practice, often post court seals, awards and the like on their websites, email signatures and the like, the Hyderally decision is instructive as to the potential consequences of doing so in an improper fashion.
From a more severe standpoint, disbarment ordinarily occurs under subsection (c) following a criminal conviction for conspiracy to commit several different crimes, including, but not limited to, bribery and official misconduct, theft by deception and fraud. In re Baldino, 105 N.J. 453, 456 (1987). Criminal conspiracy warrants disbarment when it evidences “continuing and prolonged, rather than episodic, involvement in crime,” is “motivated by personal greed,” and involved the use of the attorney’s professional skills in devising/implementing the criminal conduct. In re Goldberg, 105 N.J. 278 (1987).
Subsection (d) carries a heavy burden of proof, whereby the conduct at issue must be “particularly egregious”. In re Hinds, 90 N.J. 604, 632 (1982). When the rule is the “sole basis for discipline,” the conduct at issue must “flagrantly violate . . . accepted professional norms.” Id. The violation must be established by clear and convincing evidence, which calls for evidence that “’produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established,’ evidence ‘so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the precise facts in issue.’” In the Matter of Yaron Helmer, (dismissing ethics charges against a former prosecutor accused of using improper influence against an agency for which he previously worked).
Finally, the Comments section to RPC 8.4 provides that subsection (g) excludes what is referenced as purely private conduct (which could be covered by other sections of the RPC), and is designed to address a range of discriminatory conduct ranging from that occurring inside and outside of the courthouse.
At ZZiegler, Resnick & Epstein, all of our attorneys take their professional responsibilities seriously and provide trustworthy, client-first representation. We act with integrity because we believe, above all, in justice. Collectively, we have been fighting for our clients for over 100 years.
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