Differences from ABA Model Rules
| Rule 1.2(c) Limited Scope | Same as Model Rule |
| Rule 5.4(a) Fee-Sharing | Significant Changes |
| Rules 5.4(b)-(d) Non-Lawyer Ownership | Significant Changes |
| Rule 5.5. Unauthorized Practice of Law | Significant Changes |
| Rule 5.7 Law Related Services | Does Not Have |
| Rule 6.5 Limited Scope | Same as Model Rule |
| Rule 7.2(b) Lawyer Referral | Significant Changes |
| Cloud Computing Advisory | Yes |
| Technology Competency Rules | No |
ABA Rule 1.2(c) (Limited Scope)
Same as Model Rule.
Modified By:
N.J. Ethics Op. 699 (2005)
New Jersey Supreme Court Advisory Committee on Professional Ethics Op. 713 (2008)
(Limited Representation is fully permissible as long it follows the requirements of RPC 1.2 (c). Disclosure of limited assistance is not required if part of a non-profit program designed to provide legal assistance to people of limited means, or if it represents an effort by a lawyer to aid someone who is otherwise unable to afford an attorney. Disclosure of limited assistance is required in other situations such as when a used as a tactic to gain advantage in litigation or when a lawyer effectively controls the final form and wording of pleadings and the conduct of litigation.)
Lerner v. Laufer, 819 A.2d 471 (N.J. Super. Ct. App. Div. 2003) (lawyer retained specifically to review sufficiency, but not fairness, of marital property settlement agreement arrived at after mediation had no duty to investigate so as to advise on agreement’s reasonableness); aba
ABA Rule 5.4(a) (Fee-sharing)
RPC 5.4 Professional Independence of a Lawyer
Except as otherwise provided by the Rules of Court:
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer;
(3) lawyers or law firms who purchase a practice from the estate of a deceased lawyer, or from any person acting in a representative capacity for a disabled or disappeared lawyer, may, pursuant to the provisions of RPC 1.17, pay to the estate or other representative of that lawyer the agreed upon price;
(4)a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
(5)a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter
ABA Rule 5.4(b – d) Non-lawyer ownership
RPC 5.4 Professional Independence of a Lawyer
…
(d)A lawyer shall not practice with or in the form of a professional corporation, association, or limited liability entity authorized to practice law for profit, if:
(1)a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
ABA Rule 5.5 (UPL)
RPC 5.5 Lawyers Not Admitted to the Bar of This State and the Lawful Practice of Law
(a)A lawyer shall not:
(1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(2) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.
(b) A lawyer not admitted to the Bar of this State who is admitted to practice law before the highest court of any other state, territory of the United States, Puerto Rico, or the District of Columbia (hereinafter a United States jurisdiction) may engage in the lawful practice of law in New Jersey only if:
(1) the lawyer is admitted to practice pro hac vice pursuant to R. 1:21-2 or is preparing for a proceeding in which the lawyer reasonably expects to be so admitted and is associated in that preparation with a lawyer admitted to practice in this jurisdiction; or
(2) the lawyer is an in-house counsel and complies with R. 1:27-2; or
(3) under any of the following circumstances:
(i) the lawyer engages in the negotiation of the terms of a transaction in furtherance of the lawyer’s representation on behalf of an existing client in a jurisdiction in which the lawyer is admitted to practice and the transaction originates in or is otherwise related to a jurisdiction in which the lawyer is admitted to practice;
(ii) the lawyer engages in representation of a party to a dispute by participating in arbitration, mediation or other alternate or complementary dispute resolution program and the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which prohac vice admission pursuant to R. 1:21-2 is required;
(iii)the lawyer investigates, engages in discovery, interviews witnesses or deposes witnesses in this jurisdiction for a proceeding pending or anticipated to be instituted in a jurisdiction in which the lawyer is admitted to practice;
(iv) the out-of-state lawyer’s practice in this jurisdiction is occasional and the lawyer associates in the matter with, and designates and discloses to all parties in interest, a lawyer admitted to the Bar of this State who shall be held responsible for the conduct of the out-of-State lawyer in the matter; or
(v)the lawyer practices under circumstances other than (i) through (iv) above, with respect to a matter where the practice activity arises directly out of the lawyer’s representation on behalf of an existing client in a jurisdiction in which the lawyer is admitted to practice, provided that such practice in this jurisdiction is occasional and is undertaken only when the lawyer’s disengagement would result in substantial inefficiency, impracticality or detriment to the client.
(c)A lawyer admitted to practice in another jurisdiction who acts in this jurisdiction pursuant to paragraph (b) above shall:39
(1) be licensed and in good standing in all jurisdictions of admission and not be the subject of any pending disciplinary proceedings, nor a current or pending license suspension or disbarment;
(2) be subject to the Rules of Professional Conduct and the disciplinary authority of the Supreme Court of this jurisdiction;
(3) consent in writing on a form approved by the Supreme Court to the appointment of the Clerk of the Supreme Court as agent upon whom service of process may be made for all actions against the lawyer or the lawyer’s firm that may arise out of the lawyer’s participation in legal matters in this jurisdiction, except that a lawyer who acts in this jurisdiction pursuant to subparagraph (b)(3)(ii) or (b)(3)(iii) above shall be deemed to have consented to such appointment without completing the form;
(4)not hold himself or herself out as being admitted to practice in this jurisdiction;
(5)comply with R. 1:21-1(a)(1); and
(6) except for a lawyer who acts in this jurisdiction pursuant to subparagraph (b)(3)(ii) or (b)(3)(iii) above, annually register with the New Jersey Lawyers’ Fund for Client Protection and comply with R. 1:20-1(b) and (c), R. 1:28-2, and R. 1:28B-1(e) during the period of practice.
Modified By:
New Jersey Unauthorized Practice of Law Op. 47 (2011) (unlike nonlawyers generally, certified public accountants may advise clients on drafting certificates of incorporation)
In re Educ. Law Ctr. Inc., 429 A.2d 1051 (N.J. 1981) (nonprofit corporation acting as public interest law firm would not be engaged in unauthorized practice under certain conditions that minimize possibility of interference by nonlawyer members of board of directors with provision of legal services by corporation’s lawyers)
In re Op. No. 24 of Comm. on Unauthorized Practice of Law, 607 A.2d 962 (N.J. 1992) (lawyer must maintain direct relationships with clients and must supervise and remain responsible for paralegals’ work)
In re Op. No. 26 of Comm. on Unauthorized Practice of Law, 654 A.2d 1344 (N.J. 1995) (per curiam) (ban against unauthorized practice of law protects against unskilled legal advice)
New Jersey State Bar Ass’n v. Divorce Ctr. of Atlantic County, 477 A.2d 415 (N.J. Super. Ch. Div. 1984) (although sale of do-it-yourself legal kits is permissible, even with related textual instructions, “[w]hen the purveyor of a legal kit goes beyond the mere sale of printed material and begins to engage in activity which includes explaining or recommending particular forms and making judgments as to how a particular individual should fill them out, that person is engaging in conduct which falls within the traditional definition of the practice of law”).
State v. Rogers, 705 A.2d 397 (N.J. Super. Ct. App. Div. 1998) (criminal statute prohibiting unauthorized practice of law not unconstitutionally vague merely because it lacked definition of term, since meaning was readily ascertainable)
Other Definitions:
In re Jackman, 761 A.2d 1103 (N.J. 2000) (The practice of law in New Jersey is not limited to litigation. State v. Rogers, 308 N.J.Super. 59, 67-70, 705 A.2d 397 (App.Div.), certif. denied, 156 N.J. 385, 718 A.2d 1214 (1998). One is engaged in the practice of law whenever legal knowledge, training, skill, and ability are required. Id. at 66, 705 A.2d 397. Other jurisdictions have adopted a similar definition. See Kennedy v. Bar Ass’n, 316 Md. 646, 561 A.2d 200, 208 (1989)(using legal education, training, and experience to apply legal analysis to client’s problems constitutes practice of law).
In re Opinion 33 of Committee on Unauthorized Practice of Law, 733 A.2d 478 (N.J. 1999)(In In re Opinion 26, supra, 139 N.J. at 340, 654 A.2d 1344, we described that standard in simple and pragmatic terms:)
Practically all of the cases in this area are relatively recent. They consistently reflect the conclusion that the determination of whether someone should be permitted to engage in conduct that is arguably the practice of law is governed not by attempting to apply some definition of what constitutes that practice, but rather by asking whether the public interest is disserved by permitting such conduct. The resolution of the question is determined by practical, not theoretical, considerations; the public interest is weighed by analyzing the competing policies and interests that may be involved in the case; the conduct, if permitted, is often conditioned by requirements designed to assure that the public interest is indeed not disserved.
Our earliest precedents are faithful to that formulation. In Auerbacher v. Wood, 142 N.J.Eq. 484, 59 A.2d 863 (E. & A.1948), . . . observing that “[w]hat constitutes the practice of law does not lend itself to precise and all-inclusive definition.” Id. at 485, 59 A.2d 863
New
ABA Rule 5.7 (Law Related Services)
Does not adopt
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
Same as Model Rule.
Modified By:
N.J. Ethics Op. 712 (2008) (impossible to disclaim lawyer-client relationship when hotline lawyers provide short-term limited legal services to members of nonprofit trade association);
In re Op. 17-2012 of Advisory Comm. on Prof’l Ethics, 107 A.3d 666 (N.J. 2014) (lawyer in Volunteer Lawyers for Justice pro bono bankruptcy program representing low-income debtor in no-asset Chapter 7 bankruptcy does not have material-limitation conflict under Rule 1.7(a) merely because her firm represents client’s creditors in unrelated matters; contrary ethics opinion overturned aba
ABA Rule 7.2(b) (Lawyer referral)
RPC 7.2 Advertising
…
(c)A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that: (1) a lawyer may pay the reasonable cost of advertising or written communication permitted by this Rule; (2) a lawyer may pay the reasonable cost of advertising, written communication or other notification required in connection with the sale of a law practice as permitted by RPC 1.17; and (3) a lawyer may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.
Modified By:
N.J. Advertising Ethics Op. 43 (2011)(discussing characteristics of permissible internet lawyer marketing and referral programs);
Cloud Computing
Opinion #701 https://www.njcourts.gov/notices/ethics/ACPE_Opinion701_ElectronicStorage_12022005.pdf
Reasonable Care Standard
Specific Recommendations
- Vendor must have an enforceable obligation to preserve confidentiality and security.
- Use available technology to guard against foreseeable attempts to infiltrate data..
Technology Competency
Does not require.