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The drive to rid New Jersey of the appearance of conflict standard gained ground last week with the publication of an ABA ethics overhaul that ignores the stricture. Last year, the New Jersey State Bar Association asked the supreme court to abolish the standard, New Jersey’s Rule of Professional Conduct 1.7 (c)(2), on the grounds that it is a fuzzy anachronism, but the justices deferred action to see what the ABA would do. Now that the report of the Ethics 2000 Commission has been released with no mention of the standard, opponents are likely to press the high court to conform to the opinion of the national ethicists’ panel. New Jersey is the only state that still requires lawyers to avoid the appearance of impropriety. “There’s certainly no support in the Ethics 2000 report for New Jersey’s maintenance of the appearance of impropriety test,” says Nancy Moore, chief reporter for Ethics 2000, shorthand for the Commission on Evaluation of the Rules of Professional Conduct. “It’s not something we would be favorably disposed to adopt.” In the works for three years, the Ethics 2000 report recommends changes to the Model Rules of Professional Conduct. When it adopted that 1984 model code, now the rules in 41 states, New Jersey added the appearance of impropriety rule. Ethics 2000 highlights include calls for written fee agreements, written waivers of conflicts of interest, limited disclosure of client confidences when there are threats of substantial harm, law firm discipline, and restrictions on sexual relationships between lawyers and clients. The 300-page report will be presented for final adoption to the ABA delegates in August, but the findings are already buoying critics of the standard. State Bar trustee Michael Griffinger, an advocate of eliminating the rule, says the report may be discussed at the next meeting on Friday. Griffinger, of Newark’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione, says the New Jersey state supreme court justices “had a thorough briefing on this issue and they sort of punted.” “Maybe the state Bar may wish to say now, with the issuance of this report, there’s no necessity of waiting for action from the ABA,” Griffinger says. That’s not going to happen. Judiciary spokeswoman Beatrice Kellum says the supreme court “will not embark on consideration of those ethics rules until the ABA issues its final report.” Critics of New Jersey’s appearance-of-impropriety rule say it’s vague and sometimes used frivolously by opponents who seek to gain tactical advantage. The Court’s Professional Responsibility Rules Committee asked the justices in December 1999 to eliminate the appearance of impropriety standard in private civil litigation. That committee, chaired by retired state Supreme Court Justice Robert Clifford, said the standard should be eliminated as “surplusage.” In an appearance before the Clifford committee, Israel Dubin, Secretary to the Advisory Committee on Professional Ethics, testified that 25 percent of calls to the state ethics hotline and 55 percent of written complaints to the state ethics committee dealt with conflicts of interest and the appearance of impropriety. Dubin attributed many of the inquiries to “paranoia” caused by the vague nature of RPC 1.7(c)(2). Dubin also said that many calls were from attorneys seeking to disqualify their opponents from representation on a specific matter. But in an administrative determination on Feb. 15, the court shelved consideration of the request. To explain why it deferred action on the appearance of impropriety, the court wrote in the determination that it “must soon undertake a complete review of its ethics-disciplinary rules in light of anticipated revisions to be recommended by the ABA’s Ethics 2000 Commission. “That review will necessarily require that the court consider the application of the appearance of impropriety in both the public and private sectors,” the court said. The court reached a similar conclusion on May 3 when it issued an order deferring the impact of State v. Clark, 162 N.J. 201, on firms in which a member is a municipal prosecutor. In Clark, the court said municipal prosecutors could not represent criminal defendants in Superior Court or in any other municipal court in the county where the prosecutor serves. But when asked whether the restriction on municipal prosecutors extended to the rest of the prosecutor’s firm, the court cited the pending Ethics 2000 report as the reason for delaying its decision. Michael Ambrosio, a professor at Seton Hall University School of Law, favors retaining it, although he says he’s in a distinct minority. He sees efforts to scrap it as part of a trend toward “black letter law” replacing law “as a series of broad guides.” “I do see the groundswell, but I think it’s a problem that’s more apparent than real,” Ambrosio says. “I don’t see it as problematic as other people do.” But fellow Seton Hall professor Howard Erichson has a different view. “Real conflicts of interest are a serious problem that require a serious analysis as to whether there is a problem. The appearance of impropriety makes it too easy for judges to fudge the serious analysis by saying even if there is no real conflict, you can still disqualify a lawyer based on the appearance of conflict,” Erichson says. New Jersey’s rule also flies in the face of the Ethics 2000 goal of greater uniformity nationwide on ethics issues, Erichson says. “To the extent that New Jersey is out of step, it makes it harder for lawyers to practice in multiple jurisdictions. If New Jersey is going to have an ethics doctrine different from the rest of the country’s, there ought to be a very good reason to do so,” he adds. The Ethics 2000 report also called for: � Recognition that a law firm, not just individual lawyers in the firm, can be subject to discipline if the firm fails to create adequate internal systems to identify and avoid conflicts of interest. � Introduction of the concept of screening, or isolating a lawyer from participating in matters where a law firm represents a client whose interests conflict with those of a former client of the screened lawyer. � A prohibition on lawyers engaging in sex with clients, unless a consensual sexual relationship predated the lawyer-client relationship. � A prohibition on unreasonable charges and fees. � Greater discretion to lawyers in disclosing client confidences when the client may commit a crime or fraud that is certain to result in substantial financial injury.

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