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Lawyers are not permitted to scare up business by criticizing municipal prosecutors, police or judges without a factual basis, as such behavior not only violates rules on attorney advertising but also constitutes conduct prejudicial to the administration of justice, say two state Supreme Court committees. The strictures are laid out in a joint opinion of the Advisory Committee on Professional Ethics and the Committee on Attorney Advertising. Though prompted by direct mail solicitations, they apply to all advertising. The opinion, ACPE 698/CAA 34, focuses on statements that the prosecutor’s job is to convict or “find you guilty,” and urging people to hire a lawyer because “cops and prosecutors will not tell you everything you need to know to protect your rights,” or the town that issued the ticket relies on court revenues. Those “baseless aspersions,” the committees said, suggest that law enforcement personnel regularly violate Rule of Professional Conduct 3.8, which bars prosecutors from pursuing meritless charges and requires them to disclose exculpatory evidence. Such advertisements flout last year’s Committee on Attorney Advertising Opinion 29, which prohibits misstatements about the role of municipal prosecutors and judges. Opinion 29 also requires lawyers to verify the facts first, to send mailings only to named individuals over 18 and to avoid raising unjustified hopes or fears or implying that the lawyer can achieve a better outcome because of who or what he knows. The advertising committee chairman, George Kenny, says his panel had many complaints, and one committee member even received 10 solicitation letters after getting a traffic ticket. Realizing that the issues transcended advertising, the committee teamed up with the ethics panel to address the problem. Kenny, of Roseland’s Connell Foley, says he hopes the opinion will “serve as a reminder to the bar generally and a wake-up call” that lawyers “cannot make unwarranted statements solely for the purpose of scaring people and pulling them into the particular lawyer’s office.” Cathy Waldor, an ethics committee member, criminal defense attorney and author of the opinion, says it is meant to protect the public from overreaching lawyers. Municipal court is most people’s first exposure to the justice system and “you can’t hustle them into believing there is not equal justice available,” says Waldor, of Manasquan’s Waldor & Carlesimo. She says her experience is that municipal judges “generally do look out for litigants’ rights.” James Maynard, who says he makes extensive and effective use of direct mail, agrees on the need to get the facts straight, but believes the letters serve a purpose in letting potential clients know about the process and the ramifications of a guilty plea. Maynard says he worries that television crime shows have bred misperceptions about prosecutors and police. “The prosecutor is not your lawyer,” asserts Maynard, of Morristown’s Maynard & Truland. Still, in his view, the opinion strikes a good balance between the need to inform and the need to protect against misleading and coercive content. Also praising the opinion is Lawrence Lustberg, who says it rightfully condemns statements that unfairly paint all police and prosecutors with a negative brush. Although the opinion is directed at lawyers, it also serves as “a warning shot across the bow for prosecutors and police,” with its reference to RPC 3.8, says Lustberg, of Newark’s Gibbons Del Deo Dolan Griffinger & Vecchione. “It is always a good thing to remind law enforcement of their duty to do justice as opposed to getting a conviction.” TAX LAWYERS Though prompted by municipal court matters, the opinion addresses similar abuses by tax lawyers who offer to help file an offer of compromise with the Internal Revenue Service to reduce a client’s debt. It cites one letter, captioned “Confidential Special Report,” that contains “extreme statements” such as “you will always be looking over your shoulder for the IRS!” The letter is also misleading in saying the IRS will “simply seize your assets and sell them at auction,” states the opinion. In addition, a reference to clients abating IRS penalties by telling the agency that their basement flooded implies “lies can save the day.” The advertising committee attempted to set similar limits on bankruptcy lawyers last year in Opinion 30 but the Supreme Court decided the committee should have used the guidelines process instead, which allows for input from the bar. George Conk, who filed the challenge to Opinion 30 on behalf of a group of bankruptcy lawyers, says the new opinion shares the same flaw. He agrees that most, if not all, of the statements quoted are inappropriate, but says the advertising committee should employ guidelines to set general standards and file ethics charges against the offending lawyers. Instead, the Committee on Attorney Advertising is “issuing what’s effectively a report in the form of an advisory opinion without there being any adversarial process, and without safeguards of notice and opportunity to respond,” says Conk, of South Orange, N.J.’s Tulipan & Conk.

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