The president of the New Jersey State Bar Association said on Wednesday he agrees with the state judiciary's advisory opinion warning lawyers they violate New Jersey's bona fide office rule when they list and advertise space rented on a periodic basis as their primary place of business.
"I don't think that's sufficient," Bar chief Allen Etish says about offices lawyers rent by appointment only, with phones that are answered by receptionists shared among multiple tenants.
But a leading advocate for New Jersey women lawyers says the rubric might discriminate against them, since their juggling of family and professional responsibilities sometimes requires nontraditional office arrangements.
The Advisory Committee on Professional Ethics and the Committee on Attorney Advertising said on March 26 in a joint opinion, ACPE 718/CAA41, that Rule 1:21-1(a), requiring bona fide offices, is violated by what the opinion identified as 'virtual offices."
Those are defined as offices that are available by appointment only, usually staffed by "a receptionist with a list of all lessees who directs visitors to the appropriate room at the appointed time. Depending on the terms of the lease, the receptionist may also receive and forward mail addressed to lessees or receive and forward telephone calls to lessees."
Steven Mannion of DeCottis Fitzpatrick Cole & Wisler in Teaneck, N.J., who chairs the ethics panel, says the opinion -- prompted by inquiries from lawyers -- reflected the need for attorneys to be truthful in advertising. It also was based on an accurate interpretation of the rule as written. "The ACPE is not in a position to rewrite the court rules," he said.
Any lawyer or group of practitioners can ask the Supreme Court to review such opinions. The State Bar has no plans to do so, though the subject merits further study by the association's Committee on Professional Responsibility and Unlawful Practice, Etish says.
Emerging technology permits lawyers to communicate in new ways, Etish says. Given that, he adds, "I believe that the idea of a virtual office needs more study. It's something that's not totally wild-eyed or preposterous."
But he says, "The need for a bona fide office is necessary." For example, a lawyer without an office is hard to tie down, in terms of service of process. At the very least, the lawyer should appear regularly -- even if just once a month or once a week, the hours should be posted for all to see and a receptionist should be available to answer calls, he says.
A handful of women lawyers say, however, they are troubled by the opinion's potential impact, particularly in what it says about the relationship between home offices and the timeshare arrangements the committees call virtual offices.
The purpose behind the bona fide office rule is to ensure that lawyers have a place to keep client records secure and separate, a place where clients can meet the lawyer in privacy and a place where someone is available to take a message if the lawyer is absent.
Under the joint opinion, these criteria can be met in home offices, which are popular among women solos with children who want the flexibility to segue from lawyering to child care by merely going from room to room in the house. The standard office of this type has no secretary: just an answering machine with a remote access feature or call forwarding to the lawyer's cell phone.
Carolyn Elefant, a Washington D.C., practitioner whose blog at MyShingle.com is a popular site for solos, says the New Jersey opinions discriminate against women because they would require a lawyer who has a home office and a convenience office to list the home office as the bona fide office, creating security and privacy problems for the family.
Indeed, she works mostly at home to keep tabs on her two small children but obtained a "virtual" office as defined by the New Jersey committees for those security reasons, as well as to present a more professional face.
Bennett, the New Jersey Women Lawyers Association president, says these kinds of offices are "the best way for a woman to raise her practice to the next level." She says her group will look into the issue and find a way to give its perspective, "which wasn't thought of in these opinions."
Mary Cece, whose husband died seven years ago, has a solo practice in her home in East Hanover, N.J., to be available to her children and keep down costs. But when she wants to meet clients and doesn't want to have them come to her home, she sees them in restaurants and other public places.
She says it's impossible for attorney regulators in New Jersey to know whether home offices comply with the rule. Is anyone listening to phone messages? Are client files kept separate and under lock and key?
She says it's ironic that a home office of any kind is a bona fide office, but a time share that has a receptionist able to reach lawyers and the ability to keep files locked and separate is not.
"It seems like outdated, elitist nitpicking," she says of the joint opinion.