The most recent "State of the Attorney Disciplinary System Report," released on Aug. 14, should be read by all attorneys. It reveals that 179 attorneys received some form of discipline in the year 2012 (including 40 temporary suspensions and 139 orders of final discipline), eight more than in the prior year, and that both new investigations and formal complaints decreased.
Of course, in making statistical comparisons, it must be recognized that complaints are not all disposed of in the year of filing, but more cases satisfied both Office of Attorney Ethics investigative time goals and district ethics committee disposition time goals. The report further reflects the work of the fee arbitration committees that arbitrated or settled cases totaling almost $11.3 million in legal fees.
The report also contains a well-stated description of the disciplinary process and procedure and the types of discipline authorized and imposed. Fifteen attorneys were disbarred by order of the Supreme Court and 16 others were disbarred by consent. There were 26 suspensions, 13 censures, 31 reprimands and 38 admonitions.
Most of the discipline stemmed from "gross and patterned neglect." A single act of negligence is not a violation of Rule of Professional Conduct 1.1, but "gross negligence or a pattern of neglect" may be. The second most frequent form of discipline was for knowing misappropriation of trust funds, which can be reported as a result of the random audit program or by a bank as a result of the trust overdraft notification requirement. Those were followed by "other money offenses," such as negligent or reckless misappropriation and record-keeping deficiencies which do not require disbarment as does knowing misappropriation. The other bases for discipline imposed included "dishonesty, fraud, receipt and misrepresentation," "conflict of interest" and "lack of communication" with clients.
The report once again reminds attorneys of the need to establish procedures for compliance with the record-keeping requirements of R. 1:21 (violations of which may be discovered by random audits), to stay on top of matters and to respond to clients' communications. The need for retainer agreements, and clear ones, and the need to frequently review the Rules of Professional Conduct also come through.
It can be debated whether the total quantum of discipline and number of disciplinary sanctions imposed are good or bad with a New Jersey bar now totaling over 90,000 members. But it can't be debated that attorneys should be well versed in the ethical requirements of the RPCs and the disciplinary process, and should frequently review the rules. The ethics course requirement of mandatory continuing education helps but does not itself suffice.
We appreciate the dedicated work of the staff of the OAE, but we also thank the members of the bar and public who provide their time and effort, as volunteers, on the 17 fee arbitration committees, the 18 district ethics committees and the Disciplinary Review Board. Without their help and support, a process designed to maintain confidence in the bar cannot survive and work as well as ours does.