The New Jersey State Bar Association urged the Supreme Court to reconsider the Advisory Committee on Professional Ethics’ (ACPE) Opinion 745 banning the payment of referral fees by court-certified attorneys to out-of-state attorneys. The Association appeared as amicus curiae arguing that the ACPE erroneously considers this payment a fee for legal services rendered in violation of the Rules of Professional Conduct 1.5(e). NJSBA Treasurer Diana C. Manning argued the matter on behalf of the NJSBA. Manning, Christina Vassillou Harvey and Kyle A. Valente authored the brief.
Calling the opinion a solution in search of a problem, Manning reiterated the Association’s argument that referral fees in this construct are an exception to the general rule prohibiting the division of a fee by and between lawyers who are not in the same firm. “Such a referral fee is one of the privileges granted to certified attorneys by the Supreme Court and the New Jersey Board on Attorney Certification in recognition of their ‘education, experience, knowledge and skill for each designated area of practice,’” the Association said in its brief, citing to R. 1:39-6.
The Court questioned the ACPE’s interpretation of the Rules of Professional Conduct, specifically as to the delineation between New Jersey attorneys versus out-of-state attorneys.
The NJSBA was among several entities challenging ACPE’s Opinion 745, including New Jersey Association for Justice, the Trial Attorneys of New Jersey, the American Board of Trial Advocates, Blume, Forte, Fried, Zerres & Molinari, and Bergen, Essex, Hudson and Middlesex county bar associations.
Manning asked the Court to “go back to where we were prior to March,” emphasizing that the ACPE opinion created a problem that did not exist. “Ethics rules should not be a trap for the unwary,” she said. “Attorneys should be able to rely on the plain language of the Rules.”
The Court stayed Opinion 745 pending a disposition.
Rule Amendments Require Additional Attorney Certification to Aid in Increasing Court Transparency and Public Access
The Supreme Court issued an order relaxing and supplementing Rule 1:38 regarding public access to court and administrative records and R. 2:6-9 regarding inadequate appendices or briefs. The revised rules require a party who files a document or pleading in a public court matter in the Supreme Court or the Appellate Division to certify to the court that the submission contains no confidential information or confidential personal identifiers. To support the timely posting of briefs and motion briefs in the Appellate Division, the Court relaxed rules 2:6-1(c), 2:6-6(a) and 2:8-1(a), the briefs and motion briefs “shall be filed separately from appendices.”
This order represents an Administrative Office of the Courts (AOC) effort to evaluate its operations to increase transparency and improve public access to the court system. In its announcement on Sept. 3, the AOC outlined initiatives including posting all publicly filed briefs for matters being argued before the Court on the Judiciary’s website at least five days before oral argument and to livestream oral arguments before the Appellate Division.
The AOC continues to explore ways to expand access, including to matters at the trial court level. Click here to review the announcement. Click here for a full copy of the amended court rules.