Glossary of Attorney Discipline Terms
Agreement in Lieu of Discipline - the vehicle used to accomplish diversion of "minor" unethical conduct matters where an attorney admits "minor" unethical conduct has been committed and that attorney qualifies for diversionary treatment. See R. 1:20-3(i)(2)(B).
Board or Disciplinary Review Board - the intermediate appellate tribunal in disciplinary matters.
Complaint - the written document formally charging the respondent with specific violations of unethical conduct. A complaint is issued after completion of an investigation if it meets the standard of R. 1:20-4(a).
Consent Matter -the appellate process before the Disciplinary Review Board and the Supreme Court by which the extent of discipline to be imposed as the result of discipline by consent is reviewed, without oral argument. See R. 1:20-15(g) and R. 1:20-16(e).
Director - the Director of the Office of Attorney Ethics, who administers the Office of Attorney Ethics, Ethics Committees, Fee Committees, the Random Audit Program, the Annual Attorney Registration Statement, and the Trust Overdraft Notification Program.
Disciplinary Oversight Committee - the Disciplinary Oversight Committee reviews the annual disciplinary system budget and makes recommendations to the Supreme Court concerning the disciplinary system.
Discipline by Consent - a procedure whereby a respondent may agree with an investigator, presenter or ethics counsel to admit facts constituting unethical conduct and recommend specific discipline or a range of specific discipline, subject to review by the Disciplinary Review Board. See R. 1:20-10(b).
Diversion - a non-disciplinary treatment by consent for attorneys who admit they have committed "minor" unethical conduct and who otherwise qualify for diversionary treatment. Diversion is accomplished through an "Agreement In Lieu of Discipline." See R. 1:20-3(i)(2)(A) and (B).
Ethics Committee(s) - one or more district ethics committees throughout the state that screen, investigate, prosecute, and hear disciplinary and disability-inactive matters.
Ethics Counsel - an attorney of the Office of Attorney Ethics. See R. 1:20-2(a).
Fee Committee(s) - one or more district fee arbitration committees throughout the state that screen, hear, and decide disputes by clients over legal fees.
Grievance - any allegation of unethical conduct made against an attorney. A grievance, if docketed, is assigned for investigation by the Director or by an Ethics Committee.
Minor Unethical Conduct - minor types of unethical conduct which, if proved, would not warrant discipline greater than an admonition. Minor unethical conduct matters are eligible for diversionary treatment. R. 1:20-3(i)(2).
Presenter - the attorney who is appointed to prosecute a complaint. R. 1:20-4(g)(1).
Respondent - the attorney who is the subject of disciplinary charges.
Trier of Fact - refers to an ethics committee hearing panel or single member adjudicator or special ethics master.
Unethical Conduct - all ethics violations that would subject an attorney to discipline are referred to as unethical conduct. R. 1:20-3(i)(1).
Note: Adopted January 31, 1995 to be effective March 1, 1995; "Agreement In Lieu of Discipline," "Complaint," "Discipline By Consent," "Diversion," "Ethics Counsel," "Grievance," "Minor Misconduct," and "Presenter" modified, "Misconduct" deleted, and "Board or Disciplinary Review Board," "Director," "Disciplinary Oversight Committee," "Ethics Committee(s)," "Fee Committee(s)," "Respondent," and "Unethical Conduct" added July 28, 2004 to be effective September 1, 2004.
1:20-1. Disciplinary Jurisdiction; Annual Fee and Registration
(a) Generally. Every attorney and business entity authorized to practice law in the State of New Jersey, including those attorneys specially authorized for a limited purpose or in connection with a particular proceeding, shall be subject to the disciplinary jurisdiction of the Supreme Court as set forth in the Constitution of 1947, Article 6, Section 2, Paragraph 3. Attorneys who have resigned without prejudice pursuant to Rule 1:20-22 shall also be subject to such jurisdiction in respect of conduct undertaken prior to the acceptance of the resignation by the Court.
To assist in the administration of its disciplinary function, the Supreme Court shall establish, in accordance with these Rules, district ethics committees (hereinafter referred to as the Ethics Committees or the Ethics Committee), district fee arbitration committees (hereinafter referred to as the Fee Committee or the Fee Committees), a Disciplinary Review Board (hereinafter referred to as the Board or Disciplinary Review Board), a Disciplinary Oversight Committee (hereinafter referred to as the Oversight Committee), and an Office of Attorney Ethics and a Director thereof (hereinafter referred to as the Director).
(b) Annual Fee. Every attorney admitted to practice law in the State of New Jersey, including all persons holding a plenary license, those admitted pro hac vice in accordance with Rule 1:21-2, those holding a limited license as in-house counsel under Rule 1:27-2, those registered as multijurisdictional practitioners under RPC 5.5(b), and those certified as Foreign Legal Consultants under Rule 1:21-9, shall pay annually to the Oversight Committee a sum that shall be determined each year by the Supreme Court. All sums so paid shall be used for the attorney-discipline and fee-arbitration systems. This assessment shall be collected administratively in the same manner as and subject to the same exemptions provided under Rule 1:28-2, except that plenary-licensed attorneys who are in their second calendar year of admission shall pay a partial fee, as determined by the Supreme Court. The names of all persons failing to comply with the provisions of this Rule shall be reported to the Supreme Court for inclusion on its Ineligible to Practice Law List.
(c) Annual Registration Statement. To facilitate the collection of the annual fee provided for in paragraph (b), every attorney admitted to practice law in this state, including all persons holding a plenary license, those admitted pro hac vice, those holding a limited license as in-house counsel, those registered as multijurisdictional practitioners, and those certified as Foreign Legal Consultants, shall, on or before February 1 of every year, or such other date as the Court may determine, pay the annual fee and file a registration statement with the New Jersey Lawyers' Fund for Client Protection (hereinafter referred to as the Fund). The registration statement shall be in a form prescribed by the Administrative Director of the Courts with the approval of the Supreme Court. As part of the annual registration process, each attorney shall certify compliance with Rule 1:28A. All registration statements shall be filed by the Fund with the Office of Attorney Ethics, which may destroy the registration statements after one year. Each lawyer shall file with the Fund a supplemental statement of any change in the attorney's billing address and shall file with the Office of Attorney Ethics a supplemental statement of any change in the home and primary bona fide law office addresses, as well as the main law office telephone number previously submitted and the financial institution or the account numbers for the primary trust and business accounts, either prior to such change or within thirty days thereafter. All persons first becoming subject to this rule shall file the statement required by this rule prior to or within thirty days of the date of admission.
The information provided on the registration statement shall be confidential except as otherwise directed by the Supreme Court.
(d) Remedies for Failure to Pay or File. Any person who fails to complete and file the annual registration statement required by paragraph (c) on or before February 1 of each year or such other date as the Court may determine, or to make payment as required by paragraph (b) within 30 days after the due date each year shall be declared to be ineligible to practice law and shall be included on the Ineligible To Practice Law List of the Supreme Court. A person who makes payment after February 1 of the billing year, or such other due date as the Court may establish, but before being placed on the Ineligible List, shall be subject to a late fee of $40. These late fees shall be shared equally between the Oversight Committee and the Fund. Such person shall be reinstated automatically to the practice of law without further order of the Court on filing with the Fund the completed annual registration statement for the current year together with the annual payment, the late fee, any arrears due from prior years, and full compliance with the Rule 1:28-2 requirements of the Fund. Pursuant to Rule 1:28-2(c), failure to complete and file the annual registration statement for seven consecutive years shall result in the administrative revocation of the attorney's license to practice in this State.
Note: Adopted February 23, 1978, to be effective April 1, 1978. Any matter pending unheard before a County Ethics Committee as of April 1, 1978 shall be transferred, as appropriate, to the District Ethics Committee or the District Fee Arbitration Committee having jurisdiction. Any matter heard or partially heard by a County Ethics Committee by April 1, 1978 shall be concluded by such Ethics Committee and shall be reported on in accordance with these rules; amended July 16, 1981 to be effective September 14, 1981. Caption amended and first two paragraphs amended and redesignated as paragraph (a); new paragraphs (b), (c) and (d) adopted January 31, 1984 to be effective February 15, 1984; paragraph (c) amended November 5, 1986 to be effective January 1, 1987; paragraph (d) amended June 29, 1990 to be effective September 4, 1990; paragraph (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (c) amended September 15, 1992, to be effective January 1, 1993; caption added to all paragraphs and paragraphs (a), (b), (c), and (d) amended February 8, 1993 to be effective immediately; paragraphs (a), (b) and (c) amended January 31, 1995, to be effective March 1, 1995; paragraph (a) amended July 10, 1998, to be effective September 1, 1998; paragraph (b) amended July 12, 2002 to be effective September 3, 2002; paragraphs (a), (b), (c) and (d) amended July 28, 2004 to be effective September 1, 2004; paragraph (c) amended July 9, 2008 to be effective September 1, 2008.
1:20-2. Office of Attorney Ethics
(a) Appointment. The Supreme Court shall appoint a Director of the Office of Attorney Ethics and such assistant and deputy ethics counsel and staff as it may from time to time determine are necessary to perform properly the functions prescribed by these rules. Neither the Director, ethics counsel nor staff shall be permitted to otherwise engage in the practice of law nor to be otherwise employed except as may be provided by the Code of Conduct for Judiciary Employees, these rules and R. 1:17.
(b) Authority. The Director shall have the discretion and the authority to:
(1) exercise exclusive jurisdiction over the investigation and prosecution of the following:
(A) any case in which the Director determines the matter involves serious or complex issues that must be immediately addressed or one that requires emergent action;
(B) all cases in which an attorney is a defendant in any criminal proceedings;
(C) any case in which the Ethics Committee requests intervention;
(D) any case in which an Ethics Committee has not resolved a matter within one year of the filing of a grievance;
(E) any case in which the Board or the Supreme Court determines the matter should be assigned to the Director;
- (F) any case involving multijurisdictional practice or practice as in-house counsel.
(2) investigate any information coming to the Director's attention, whether by grievance or otherwise, which, in the Director's judgment, may be grounds for discipline or transfer to disability-inactive status;
(3) dispose of, by investigation or dismissal, all matters involving alleged unethical conduct , by transfer to disability-inactive status, by agreement in lieu of discipline in minor unethical conduct cases, or by the prosecution of formal charges before a duly constituted hearing panel or special ethics master, all in accordance with these Rules;
(4) prosecute ethics proceedings before the Disciplinary Review Board;
(5) prosecute all ethics proceedings before the Supreme Court, unless the Court or the Director requests the assistance of Board Counsel to do so;
(6) seek from the Supreme Court judicial review of any final determination of the Board within the time and in the manner prescribed by the Rules of the Court;
(7) transfer any matter pending before an Ethics Committee or Fee Committee to another district;
(8) maintain records of all ethics and fee arbitration matters;
(9) administer the programs of the Fee Committees in accordance with R. 1:20A-1 et seq., of the Ethics Committees in accordance with R. 1:20-3 et seq., and to render to both of them appropriate legal and administrative advice;
(10) administer the Random Audit Compliance Program in accordance with R. 1:21-6(c);
(11) prepare annually, jointly with Counsel for the Disciplinary Review Board, a proposed budget for the attorney disciplinary system of the state;
(12) hire and discharge secretaries of Ethics Committees and Fee Committees and recommend and pay their compensation;
(13) recommend to the Supreme Court the appointment and replacement of members of Ethics Committees and Fee Committees;
(14) recommend the creation of new Ethics Committees and Fee Committees and the reorganization and termination of existing Ethics Committees and Fee Committees;
(15) recommend to the Supreme Court rules and guidelines governing the procedures to be followed in all ethics and fee arbitration proceedings in this state;
(16) hire and discharge all staff of the Office of Attorney Ethics consistent with personnel policies of the judiciary and subject to the approval of the Chief Justice, and to recommend the hiring of all ethics counsel to the Supreme Court;
(17)select attorneys and non-attorneys from among former Ethics and Fee Committee members to act as hearing panel members; and
(18) approve additional volunteer attorneys who are not members of an Ethics Committee to act as investigators or presenters.
In all actions the Director shall exercise all of the investigative and prosecutorial authority of an Ethics Committee in addition to any authority invested in the Director under these rules.
- (c) Advisory Opinions Prohibited. The Office of Attorney Ethics shall not render advisory opinions of any kind, either orally or in writing.
(d) Exemption From Costs. As an agency of the Supreme Court, the Office of Attorney Ethics and any lawfully appointed designee shall be exempt from the payment of any Court costs required by rule of law of the State of New Jersey including, but not limited to, the filing or docketing of any document, deposit for costs or service of process.
Note: Former rule redesignated R. 1:20-3 and new rule adopted January 31, 1984 to be effective February 15, 1984; paragraph (b)(15) amended and new paragraph (16) adopted November 5, 1986 to be effective January 1, 1987; paragraph (b)(8) amended June 29, 1990 to be effective September 4, 1990; paragraphs (a) and (b) amended, subparagraphs (b)(1) (i) (ii) (iii) (iv) (v) amended and redesignated (b)(1) (A) (B) (C) (D) and (E), new subparagraph (b)(17) added, paragraphs (c) and (d) adopted January 31, 1995 to become effective March 1, 1995; paragraph (b)(1) amended, subparagraph (b)(1)(E) amended, new subparagraph (b)(1)(F) adopted, new subparagraph (b)(2) added, former subparagraphs (b)(2) and (b)(3) renumbered as (b)(3) and (b)(4) and amended, former subparagraphs (b)(4) to (b)(9) renumbered as (b)(5) to (b)(10), former subparagraphs (b)(10) and (b)(11) renumbered as (b)(11) and (b)(12) and amended, former subparagraph (b)(12) renumbered as (b)(13), former subparagraph (b)(13) renumbered as (b)(14) and amended, former subparagraphs (b)(14) to (b)(17) renumbered as (b)(15) to (b)(18), and new last sentence added to paragraph (b) July 28, 2004 to be effective September 1, 2004; subparagraphs (b)(16) and (b)(17) amended July 9, 2008 to be effective September 1, 2008.
1:20-3. District Ethics Committees; Investigations
(a) Disciplinary Districts. The Supreme Court shall establish, and may from time to time alter, disciplinary districts consisting of defined geographical areas and shall appoint in each such district a District Ethics Committee which shall consist of such number of members, not fewer than eight, as the Court may determine, at least four of whom shall be attorneys of this state, at least two of whom shall not be attorneys, all of whom shall either reside or work in the district or county in which the district is located.
(b) Appointments. Members of Ethics Committees shall be appointed by, and shall serve at the pleasure of the Supreme Court for a term of four years. With the approval of the Supreme Court, a member who has served a full term may be reappointed to one successive term. A member serving in connection with an investigation pending at the time the member's term expires may continue to serve in such matter until its conclusion. In order that, as nearly as possible, the terms of one-quarter of the members shall expire each year, the Supreme Court may, when establishing a new Ethics Committee, appoint members for terms of less than four years and members so appointed shall be eligible for reappointment to a full successive term.
(c) Officers; Organization. The Supreme Court shall annually designate a member of each Ethics Committee to serve at its pleasure as chair and another member to serve as vice-chair. Whenever the chair is absent or unable to act or disqualified from acting due to a conflict, the vice-chair shall perform the duties of the chair. The chair shall be responsible for administering the Ethics Committee. Under the chair's direction, the vice-chair, or another Ethics Committee member designated by the chair, shall be responsible for administering all matters where a complaint has been filed.
Each Ethics Committee shall hold an organization meeting in September of each year and shall meet thereafter at least monthly except that, with the approval of the Director, an Ethics Committee may meet less frequently. The Ethics Committee shall also meet at the call of the Supreme Court, the chair, the Board or the Director.
The Director shall, after consultation with the chair, appoint a secretary who shall not be a member of the Ethics Committee but who shall be a member of the bar maintaining an office within the district or county in which the district is located. The secretary shall continue to serve at the pleasure of the Director and shall be paid an amount annually set by the Supreme Court to reimburse the secretary for costs and expenses. The secretary shall keep full and complete records of all Ethics Committee proceedings, shall maintain files with respect to all inquiries and grievances received and investigations undertaken, shall transmit copies of all documents filed immediately on receipt thereof to the Director and shall promptly notify the latter of each final disposition. Reports with respect to the work of the Ethics Committee shall be filed by the secretary with the Director as instructed by the Director.
(d) Office. Each Ethics Committee shall receive grievances at the office of its secretary and at such additional places as shall be designated by the Director.
(e) Screening; Docketing. The secretary shall evaluate inquiries and grievances in accordance with this rule and shall docket, decline, or dismiss the matters within 45 days of their receipt. The secretary shall not conduct an investigation of a grievance.
(1) The secretary shall evaluate all information received by inquiry, grievance or from other sources alleging attorney unethical conduct or incapacity by an attorney maintaining an office in that district. If the attorney is subject to the jurisdiction of the Court and the grievance alleges facts which, if true, would constitute unethical conduct as defined by the Rules of Professional Conduct, case law or other authority, or incapacity, the matter shall be docketed and investigated.
(2) The secretary shall decline jurisdiction if:
(A) the attorney is not subject to the jurisdiction of the Supreme Court of New Jersey, in which case the matter shall be declined and referred to the appropriate entity in any jurisdiction in which the attorney is admitted;
(B) the matter involves an inquiry or grievance regarding advertising or other related communications within the jurisdiction of the Committee on Attorney Advertising (R. 1:19A-2(a)), in which case the matter shall be sent to that committee unless the matter has been referred by the Advertising Committee in accordance with R. 1:19A-4(e) or (h);
(C) the facts stated in the inquiry or grievance involve circumstances which the Supreme Court has determined through the adoption of court rules or administrative guidelines will not be entertained, in which case the matter shall be declined;
- (D) the grievance involves aspects of a substantial fee dispute and a charge of unethical conduct, unless so directed by the Director or unless the matter is referred by the Fee Committee in accordance with Rule 1:20A-4.
(3) The secretary, with concurrence by a designated public member, shall decline jurisdiction if the facts stated in the inquiry or grievance, if true, would not constitute unethical conduct or incapacity.
(4) If a grievance is not in writing and if the secretary concludes that the grievance must be declined under subsection (e)(2) or that the grievant alleges facts that, even if true, would not constitute unethical conduct or incapacity, the secretary shall so advise the grievant and that if the grievant wishes further consideration the secretary will provide a written attorney grievance form for completion. Unless declination is mandatory under subparagraph (e)(2), on receipt of a properly completed attorney grievance form the secretary will have the grievance reviewed by one or more public members of the Ethics Committee designated by the secretary. If a designated public member agrees with the secretary, the matter shall be declined. Otherwise, the matter shall be docketed and assigned for investigation.
(5) If a matter is declined, the secretary shall furnish a concise written statement to the grievant of the reasons therefor and shall enclose a copy of the court rule or written guideline for declination approved by the Supreme Court.
- (6) There shall be no appeal from a decision to decline a grievance made in accordance with this rule. An appeal may be taken from dismissal of a grievance after docketing in accordance with R. 1:20-3(h).
(f) Related Pending Litigation. If a grievance alleges facts that, if true, would constitute unethical conduct and if those facts are substantially similar to the material allegations of pending civil or criminal litigation, the grievance shall be docketed and investigated if, in the opinion of the secretary or Director, the facts alleged clearly demonstrate provable ethical violations or if the facts alleged present a substantial threat of imminent harm to the public. All other grievances involving such related pending civil and criminal litigation may be declined and not docketed. If the matter has already been docketed when the related pending litigation is discovered, the matter may be administratively dismissed, provided the matter is still in the investigative stage. The grievant shall be informed in writing of any decision, together with a brief statement of the reasons therefor and a copy of any Court Rule or written guideline supporting declination. Once a formal complaint has been filed, the matter shall not be dismissed nor held in abeyance pending completion of the related litigation, unless so authorized by the Director. Whenever an attorney is a defendant in any criminal proceeding, the Director shall docket the matter and may, in the Director's discretion, investigate and prosecute the disciplinary case.
(g) Investigation.
(1) Generally. Except in those districts in which the Director assigns investigators, the chair of the Ethics Committee shall assign an attorney member to each docketed case to conduct such investigation as may be necessary in order to determine whether unethical conduct has occurred or whether the respondent is disabled or incapacitated from practicing law.
(2) Notice to Respondent. No disposition other than dismissal, declination or designation as untriable shall be taken without first notifying the respondent in writing of the substance of the matter and affording the respondent an opportunity to respond in writing. Notice to the respondent shall be given by mail addressed to the address listed either in the current edition of the New Jersey Lawyer's Diary and Manual or with the Lawyers' Fund for Client Protection.
(3) Duty to Cooperate. Every attorney shall cooperate in a disciplinary investigation and reply in writing within ten days of receipt of a request for information. Such reply may include the assertion of any available constitutional right, together with the specific factual and legal basis therefor. Attorneys shall also produce the original of any client or other relevant law office file for inspection and review, if requested, as well as all accounting records required to be maintained in accordance with R. 1:21-6. Where an attorney is unable to provide the requested information in writing within ten days, the attorney shall, within that time, inform the investigator in writing of the reason that the information cannot be so provided and give a date certain when it will be provided.
(4) Failure to Cooperate. If a respondent fails to cooperate either by not replying in writing to a request for information or by not producing the attorney's client and/or business file or accounting records for inspection and review, the Office of Attorney Ethics may file and serve a motion for temporary suspension with the Supreme Court, together with proof of service. The failure of a respondent to file a response in opposition to the motion may result in the entry of an order of temporary suspension without oral argument until further order of the Court. An attorney temporarily suspended under this rule may apply to the Court for reinstatement on proof of compliance with subsection (3) of this paragraph on notice to the Office of Attorney Ethics.
(5) Notice to Grievant. The substance of respondent's written response shall be communicated to the grievant, who shall be afforded an opportunity to respond in writing within 14 days of receipt of the communication.
- (6) Investigative Subpoena. During the investigation of any matter, a subpoena may be issued in accordance with R. 1:20-7(i) in the name of the Supreme Court of New Jersey.
(h) Dismissal and Appeal; Administrative Dismissal. The investigator shall report in writing to the chair, providing a copy to the secretary. The report shall set forth the facts, together with a recommendation for action. If the chair concludes that there is no reasonable prospect of proving unethical conduct or incapacity by clear and convincing evidence, the matter shall be dismissed. Written notice of the facts and reasons for dismissal shall be provided to the respondent, the Director, and the grievant, who shall be advised of the right of appeal to the Board within 21 days as provided by Rule 1:20-15(e)(2).
The Director may authorize that a grievance be declined or administratively dismissed where either the attorney has been disciplined and the Director determines that the processing of additional matters against the respondent would not likely result in the imposition of substantially different discipline, or the attorney, although not yet disciplined, is already the subject of disciplinary proceedings and the nature or time periods covered by the additional grievances are similar to other unethical conduct already being pursued, so that the results would be likely to be merely cumulative. If so approved, the secretary shall give notice of declination or administrative dismissal to any grievant, together with an explanation of the reasons supporting the action.
(i) Determination of Unethical Conduct.
(1) Generally. If the chair determines that there is a reasonable prospect of a finding of unethical conduct by clear or convincing evidence, a further determination shall be made as to whether such conduct is either unethical conduct or minor unethical conduct.
(2) Minor Unethical Conduct.
(A) Defined. Minor unethical conduct is conduct, which, if proved, would not warrant a sanction greater than a public admonition. Unethical conduct shall not be considered minor if any of the following considerations apply: (i) the unethical conduct involves the knowing misappropriation of funds; (ii) the unethical conduct resulted in or is likely to result in substantial prejudice to a client or other person and restitution has not been made; (iii) the respondent has been disciplined in the previous five years; (iv) the unethical conduct involves dishonesty, fraud or deceit; (v) or the unethical conduct constitutes a crime as defined by the New Jersey Code of Criminal Justice (N.J.S.A. 2C:1-1 et seq.). Classification of unethical conduct as minor unethical conduct shall be in the sole discretion of the Director.
(B) Agreements in Lieu of Discipline.
(i) If, as a result of investigation, the chair concludes that minor unethical conduct has occurred, the chair may request that the Director, or his designee, divert the matter and approve an agreement in lieu of discipline. Such request shall be accompanied by any initial grievance, the respondent's response, an investigative report, the written agreement signed by the respondent, and a letter to any grievant enclosing a copy of the agreement. The letter shall give ten days notice to the grievant that the Director is being asked to approve the disposition and that any comments must be sent to the Director within that time. Diversion shall not be available subsequent to the filing of a complaint.
(ii) There shall be no appeal from the Director's decision.
(iii) An agreement in lieu of discipline may contain an agreement to meet, within a specified period (usually no more than six months), stated conditions addressed, to the extent practicable, to the remediation of the cause of the unethical conduct. Such conditions may include, but are not limited to, reimbursement of fees or costs, completion of legal work, participation in alcohol or drug rehabilitation program, psychological counseling or satisfactory completion of a course of study and such other programs as are developed. If approved, the Director shall monitor the terms of agreement. If the respondent fulfills the terms, the matter shall be dismissed.
- (C) Other Process. If an attorney declines to agree to divert a matter to administrative disposition under subparagraph (B), or if the Director determines, as a matter of exclusive discretion, that the attorney does not qualify for diversion or has failed to comply with the terms of the diversion agreement, the matter shall proceed in accordance with subparagraph (i)(3)(A) of these rules.
(3) Unethical Conduct.
(A) Defined. All ethical violations of the Rules of Professional Conduct, case law, or other authority not determined in accordance with these rules to be minor unethical conduct shall be processed as unethical conduct.
- (B) Process. Unethical conduct may be prosecuted by the filing of a complaint under R. 1:20-4 or through Discipline by Consent under R. 1:20-10.
(j) Incapacity. If the Director or the chair conclude that there is a reasonable prospect of proving incapacity by clear and convincing evidence, the matter shall proceed as provided under R. 1:20-12.
Note: Former Rule redesignated as Rule 1:20-4 January 31, 1984 to be effective February 15, 1984. Source-Former Rule 1:20-2 adopted February 23, 1978, to be effective April 1, 1978; paragraphs (a), (h), (l) and (m) amended January 17, 1979, which were superseded on March 2, 1979, to be effective April 1, 1979; and paragraphs (n) and (o) restored on March 22, 1979, to be effective April 1, 1979; subparagraph (l)(3) deleted and new paragraph (p) adopted June 19, 1981, to be effective immediately; paragraphs (c), (h), (j) and (l)(1)(i) amended July 16, 1981, to be effective September 14, 1981; Rule redesignated as Rule 1:20-3; paragraphs (a) through (e) amended; paragraphs (f), (g) and part of (k) deleted; paragraphs (h), (i), (j), (k), (l), (m), (n), (o) and (p) amended and redesignated (f), (h), (i), (j), (k), (l), (m), (n) and (o) and new paragraphs (g)and (p) adopted January 31, 1984, to be effective February 15, 1984; paragraphs (f), (g), (h), (i), (l), (n), (o) and (p) amended November 5, 1986, to be effective January 1, 1987; paragraphs (e) and (m) amended June 26, 1987 to be effective July 1, 1987; paragraphs (i), (j) and (o) amended November 7, 1988 to be effective January 2, 1989; paragraphs (f) and (i) amended, and paragraph (n)(3) caption and text amended June 29, 1990 to be effective September 4, 1990; paragraph (f) amended July 13, 1994 to be effective September 1, 1994; paragraph (g) and (n)(2) captions and text amended August 8, 1994 to be effective immediately; paragraphs (a), (b), (c) and (d) amended, paragraphs (e) through (p) deleted and new paragraphs (e) through (j) adopted January 31, 1995 to be effective March 1, 1995; paragraphs (f), (g)(5), and (h) amended July 5, 2000 to be effective September 5, 2000; paragraph (g)(1) amended July 12, 2002 to be effective September 3, 2002; paragraphs (a), (b), (c), (e), (f), (g), (h), (i) (text and caption), and (j) amended July 28, 2004 to be effective September 1, 2004; paragraph (b) amended June 15, 2007 to be effective September 1, 2007.
1:20-4. Formal Pleadings
(a) Complaint Determination. Where the chair or Director, in his or her sole discretion, determines that there is a reasonable prospect of a finding of unethical conduct by clear and convincing evidence and where the matter is not diverted pursuant to R. 1:20-3(i)(2), a complaint shall issue.
(b) Contents of Complaint. Every complaint shall be in writing, designated as such in the caption, and brought against the respondent in the name of either the District Ethics Committee or the Office of Attorney Ethics. The complaint shall be signed by the chair, secretary or any Ethics Committee member, the Director, or the Director's designee. The complaint shall state the name of the grievant, if any, and the name, year of admission, law office or other address, and county of practice of the respondent, and shall set forth sufficient facts to constitute fair notice of the nature of the alleged unethical conduct, specifying the ethical rules alleged to have been violated. It shall also state above the caption the name, address and phone number of the presenter assigned to handle the matter.
(c) Consolidation of Charges and Respondents. A complaint may include any number of charges against a respondent. A consolidated complaint may be filed against two or more respondents if they are members of the same law firm or if the allegations are based on the same general conduct or arise out of the same transaction or series of transactions.
(d) Filing and Service. The original complaint shall be filed with the secretary of the Ethics Committee or the designated special ethics master to whom the case is assigned. If the matter will be determined by an Ethics Committee, service of the complaint shall be made by the secretary; otherwise service shall be made by the Director. A copy of the complaint shall be served on the respondent and respondent's attorney, if known, in accordance with R. 1:20-7(h), together with written notice advising the respondent of the requirements of R. 1:20-4(e) and (f), the name and address of the secretary or the Director as appropriate, as well as the address and telephone number of the vice chair of the Ethics Committee or special ethics master to whom all questions and requests for extension of time to file answers shall be directed. In appropriate circumstances, the secretary or the Director shall forward a copy of every complaint to the respondent's law firm or public agency employer in accordance with R. 1:20-9(k).
(e) Answer. Within twenty-one days after service of the complaint, the respondent shall file with and serve on the secretary the original and one copy of a written, verified answer designated as such in the caption. The respondent shall also file a copy with the presenter, the vice chair or special ethics master and, in cases prosecuted by the Director, two copies with that office . The verification shall be made in the following form:
"Verification of Answer
I, (insert respondent's name), am the respondent in the within disciplinary action and hereby certify as follows:
(1) I have read every paragraph of the foregoing Answer to the Complaint and verify that the statements therein are true and based on my personal knowledge.
(2) I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment."
An answer that has not been verified within ten days after the respondent is given notice of the defect shall be deemed a failure to answer as defined within these Rules.
For good cause shown, the vice chair or the special ethics master, if one has been appointed, may, on written application made within twenty-one days after service of the complaint, extend the time to answer. The Director shall be notified of any extension granted in cases prosecuted by that office. The secretary shall forward one copy of all answers to the Director. The respondent's answer shall set forth (1) a full, candid, and complete disclosure of all facts reasonably within the scope of the formal complaint; (2) all affirmative defenses, including any claim of mental or physical disability and whether it is alleged to be causally related to the offenses charged; (3) any mitigating circumstances; (4) a request for a hearing either on the charges or in mitigation, and (5) any constitutional challenges to the proceedings. All constitutional questions shall be held for consideration by the Supreme Court as part of its review of any final decision of the Board. Interlocutory relief may be sought only in accordance with R. 1:20-16(f)(1). Failure to request a hearing shall be deemed a waiver thereof. A respondent is required to file an answer even if the respondent does not wish to contest the complaint.
- (f) Failure to Answer.
(1) Admission. The failure of a respondent to file a verified answer within the prescribed time shall be deemed an admission that the allegations of the complaint are true and that they provide a sufficient basis for the imposition of discipline. No further proof hearing shall be required.
(2) Certification to Disciplinary Review Board. If a respondent has been duly served with a complaint, but has failed to file a verified answer within the prescribed time, a certification detailing that failure may be filed with the Director by the secretary or special ethics master, or, in cases prosecuted by the Director, by ethics counsel. The Director may thereafter file that certification with the Board, which shall treat the matter as a default. A copy of the certification shall be mailed to the respondent.
- (g) Counsel.
(1) Presenter. All disciplinary and disability proceedings shall be prosecuted by an attorney presenter designated by the Director or chair.
(2) Respondent's Counsel; Assignment for Indigents. A respondent may be represented by counsel admitted to practice law in New Jersey or admitted pro hac vice by the Board, or may appear pro se. A respondent desiring representation but claiming inability to retain counsel by reason of indigency, shall promptly so notify the vice chair and special ethics master, if one is appointed, and shall, within 14 days after service of the complaint, make written application to the Assignment Judge of the vicinage in which respondent practices or formerly practiced, simultaneously serving the application on the vice chair and special ethics master, if one has been assigned, and on the presenter. The application shall be supported by a certification complying with R. 1:4-4(b), which shall contain a current statement of all assets and liabilities, any bankruptcy petition and orders, and copies of the respondent's state and federal income and business tax returns for the prior three-year period. For good cause shown, the Assignment Judge shall assign an attorney to represent the respondent without compensation, so notifying the respondent, the secretary, the vice chair and special ethics master, if one has been assigned, and the Office of Attorney Ethics of any decision.
- (3) Grievant's Counsel. A grievant may be represented by a retained attorney. Such attorney shall be limited to consulting with the grievant and may not be designated as the presenter in the matter.
