Meeting of October 4, 2023, 10 am
Law Center, New Brunswick
Organizational:
Subcommittees:
| Number | Description |
1. |
Minutes: |
2. |
Pending Inquiries:09-2020 RPC 1.15 (Safekeeping Property) - REPRISE The Committee discussed this matter at length in 2020 but it was then tabled. This is a 2-part suggestion from the Secretary to issue an opinion about lawyers’ obligations under RPC 1.15. The parts are: (1) lawyers’ obligations to honor liens; and (2) how long must lawyers keep monies that are disputed, sometimes in bad faith. Part 1: RPC 1.15(b) requires a lawyer to promptly deliver to the client or third person funds that the client or third person is entitled to receive, except “as otherwise permitted by law or by agreement with the client.” Some hotline callers are asking about whether they are obligated to pay certain liens that they have been made aware of, such as outstanding medical bills, child custody liens, public defender liens, or prior judgments unrelated to the case the lawyer is handling, out of settlement proceeds. The lawyers ask whether the “agreement with the client” can be such that the lawyer does not need to honor liens that have been presented. Part 2: RPC 1.15(c) requires a lawyer to keep monies separate when there is a dispute about who is entitled to those monies. There is no time frame for how long the monies must be kept, the language is “until the dispute is resolved.” Some hotline callers say that they are holding monies for lengthy periods of time because the parties have not taken any steps to resolve the dispute. It comes up frequently with regard to real estate deposits. The Committee previously agreed that lawyers are not obligated to investigate whether there are outstanding liens, as noted in the Committee’s prior informal decision. It was divided about whether the Committee should issue an opinion about lawyers’ obligations when presented with documentation of a lien (other than a statutory lien such as child support, Medicare, or Medicaid). The matter was carried to permit the Committee to consider a recent DRB case, In re Burns, in which the DRB stated that even when a lawyer is presented with documentation on a lien, the lawyer is not obligated to honor that lien. The Committee previously carried the discussion about how long a lawyer is obligated to hold monies that are in dispute. The Committee previously noted that the first sentence of RPC 1.15(c) refers to only disputes between the lawyer and client, and the second sentence has been broadly construed to concern disputes between the lawyer, client, and any third person. It was noted that if a lawyer has diligently tried to resolve a dispute and presents such documentation to a court in a Rule 4:57 action, the lawyer may be able to obtain costs from the court. The problems arise when a lawyer is disputing the matter not in good faith, and the portion in dispute is a small sum so that filing fees for a Rule 4:57 action become prohibitive. Full Committee — Ron Lieberman to report. |
| 3. |
New Inquiries The Secretary presents this inquiry and suggests that the Committee consider issuing a published opinion on whether certified lawyers may pay out-of-state lawyers referral fees for referral of New Jersey cases. The opinion can also remind lawyers of other rules on payment of referral fees. Form of Practice Subcommittee - Bill Popjoy to report. 03-2023 RPC 4.2 as Applied to Pro Se Lawyer The Secretary presents this inquiry. The ABA and our Disciplinary Review Board have construed RPC 4.2 as applying to a pro se lawyer, even though the Rule requires that the conduct be done “in representing a client.” The Secretary suggests that this construction of the Rule is counterintuitive and requests the Committee consider: (1) whether the Rule should be so construed; (2) if not, whether it should propose the Court amend the Rule to apply to pro se lawyers; and (3) whether RPC 4.2 should apply to pro se lawyers who have a low-level dispute with vendors. The Secretary suggests the Committee consider issuing an opinion on these issues. Form of Practice Subcommittee - // to report. Inquirer is a wills, trusts, and estates lawyer and has a safe deposit box with original wills. Many of the clients have died. He asks whether he is required to continue to store the wills. Form of Practice Subcommittee - // to report. |
| 4. | Next Meetings (at Law Center in New Brunswick or on Zoom):
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