in new jersey overcoming the conflct when a lawyer examines a client as an adverse witness

Can a lawyer examine a client as an adverse witness?

This scenario was squarely addressed in ABA Formal Opinion 92-367 ( Lawyer Examining a Client as an Adverse Witness, or Conducting Third Party Discovery of the Client ).

What is the attorney witness rule in New Jersey?

In this post I examine the attorney witness rule incorporated in New Jersey Rule of Professional Conduct (“RPC”) 3.7, and how the Rule can be used to disqualify a lawyer representing a party in litigation when the lawyer possesses factual knowledge of contested issues that go to the heart of the case.

Does New Jersey conflicts of interest law apply to former state attorneys?

46 (2007), the Court deferred to the Legislature in the spirit of comity and held that the post-government employment restrictions imposed by the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-17, apply in the context of former State attorneys. The 2008 amendment to paragraph (c) implements that decision. Note:

When does the rule of adversarial proceedings apply in New Jersey?

468, 472 (D.N.J. 1997). In the criminal context, the rule ordinarily applies only after adversarial proceedings have begun by arrest, complaint, or indictment on the charges that are the subject of the communication. See State v. Bisaccia

What Qualifies As A Conflict Of Interest?

Lawyers often represent many different clients. Occasionally, the interests of the lawyer or of different clients will overlap or be adverse to those of another client. In legal terms, this presents a potential conflict of interest. Specific scenarios include:

Expert Witness Services

Andrew Rubin has been qualified by New Jersey courts as an expert witness on the standard of care for lawyers, including trial practice and also as to conflicts of interests.

The Next Step

Although our law offices are located in the Essex County city of Montclair, our firm handles legal malpractice claims on behalf of clients throughout the state of New Jersey.

What is a state agency?

“State agency” means any of the principal departments in the Executive Branch of the State Government, and any division, board, bureau, office, commission, or other instrumentality within or created by such department, the Legislature of the State, and any office, board, bureau, or commission within or created by the Legislative Branch, and, ...

What does "member of the immediate family" mean?

“Member of the immediate family” of any person means the person’s spouse, domestic partner, civil union partner, child, parent, or sibling residing in the same household.

What does "cause, proceeding, application or other matter" mean?

“Cause, proceeding, application or other matter” means a specific cause, proceeding or matter and does not mean or include determinations of general applicability or the preparation or review of legislation which is no longer pending before the Legislature or the Governor. i.

What does "person" mean in a sentence?

f. “Person” means any natural person, association or corporation.

What does "member of the legislature" mean?

c. “Member of the Legislature” means any person elected to serve in the General Assembly or the Senate.

What is a special state officer?

“Special State officer or employee” means: (1) any person holding an office or employment in a State agency, excluding an interstate agency, for which office or employment no compensation is authorized or provided by law, or no compensation other than a sum in reimbursement of expenses, whether payable per diem or per annum, is authorized or provided by law; (2) any person, not a member of the Legislature, holding a part-time elective or appointive office or employment in a State agency, excluding an interstate agency; or (3) any person appointed as a New Jersey member to an interstate agency the duties of which membership are not full-time.

What does "state officer" mean?

b. “State officer or employee” means any person, other than a special State officer or employee: (1) holding an office or employment in a State agency, excluding an interstate agency, other than a member of the Legislature; or (2) appointed as a New Jersey member to an interstate agency. c. “Member of the Legislature” means any person elected ...

What is RPC 3.7?

In this post I examine the attorney witness rule incorporated in New Jersey Rule of Professional Conduct (“RPC”) 3.7, and how the Rule can be used to disqualify a lawyer representing a party in litigation when the lawyer possesses factual knowledge of contested issues that go to the heart of the case. Because courts generally are reluctant to disqualify a party’s choice of counsel, a motion brought pursuant to RPC 3.7 requires the moving party to bear the burden of proof by demonstrating that the attorney’s continued representation would violate the Rule. J.G. Ries & Sons, Inc. v. Spectraserv, Inc. ,384 N.J. Super. 216 (App. Div. 2006).

What is the purpose of RPC 3.7?

For purposes of RPC 3.7, a witness is truly “necessary” if there are no documents or other witnesses that can be used to introduce the relevant evidence. The purpose of RPC 3.7 (a) is “to prevent a situation in which at trial a lawyer acts as an attorney and a witness, creating the danger that the factfinder (particularly if it is a jury) ...

What is the burden of disqualifying an attorney?

The party seeking disqualification bears the burden of showing that continued representation by the lawyer would violate the disciplinary rules. In addition, the party seeking to disqualify an attorney must do more than simply make representations that a lawyer is a necessary witness for the attorney to be disqualified.

What is the resolution of a motion to disqualify?

Resolution of a motion to disqualify requires the court to balance “the need to maintain the highest standards of the [legal] profession” against “a client’s right to freely choose his counsel.” Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 205, (1988) (internal citation omitted). This balancing involves a “painstaking analysis of the facts and precise application of precedent.” Reardon v. Marlayne, Inc., 83 N.J. 460, 469 (1980); Dewey, 109 N.J. at 205. As the New Jersey Supreme Court remarked, “ [i]f there is any doubt as to the propriety of an attorney’s representation of a client, such doubt must be resolved in favor of disqualification.” Reardon, 83 N.J. at 471.

When does RPC 3.7 take effect?

Historically, New Jersey Courts have consistently held that RPC 3.7 begins to operate as soon as the attorney knows or believes that he will be a witness at trial. See In the Matter of Cadillac V8-6-4 Class Action, 93 N.J. 412 (1983) (construing New Jersey DR 5-101 and DR 5-102). The attorney-witness takes effect before an attorney decides to accept employment from a client. Once an attorney recognizes that he is “likely” to be a witness in litigation, he must choose whether he will proceed as advocate or witness; he may not choose both. Id, at 440.

When does an attorney-witness take effect?

The attorney-witness takes effect before an attorney decides to accept employment from a client. Once an attorney recognizes that he is “likely” to be a witness in litigation, he must choose whether he will proceed as advocate or witness; he may not choose both. Id, at 440.

Can a lawyer be an advocate?

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

How to serve a subpoena?

The good news is that this conflict is generally viewed as being subject to the affected clients’ consent and waiver. But how should you proceed? Regarding the situation presented by third-party discovery against a current client, the experience of my firm and others suggests the following possible steps: 1 Advise the litigation client on whose behalf you want to serve the document subpoena that the target of the subpoena is another firm client in unrelated matters. 2 Get permission from the litigation client to inform the target of the subpoena about the subpoena and the subject matter of the request. 3 Determine if the subpoena target will be objecting to the subpoena or attempting to block production of any information called for by the subpoena. 4 If the answers to that question is “no,” then there is likely little risk of an actual conflict; but otherwise, there is a conflict that requires a waiver.

What is the problem with a punch-pulling witness?

Second, there is a “punch-pulling” problem: your interest in keeping the witness-client, or in not inconveniencing that client, may consciously or unconsciously cause you to go easier on that client, conducting a “‘soft’ or deferential” examination or document request, to the possible disadvantage of your litigation client.

What is Model Rule 1.7?

The focus is on Model Rule 1.7, which deals with current-client conflicts. It addresses representations directly adverse to existing clients and also situations where your representation of a client may be “materially limited” by your duties to another client.

What would happen if a third party was cross-examined?

The Committee concluded that cross-examining or directing third-party discovery to an existing client likely would be directly adverse to that client, and would create a disqualifying conflict of interest — unless both clients consented. The circumstances would likely “pit the duty of loyalty to each client against the duty of loyalty to the other,” said the Committee.

Can you breach a subpoena?

First, you could breach the duty of confidentiality you owe to your client who is the witness or the target of a document subpoena. After all, in these circumstances, by definition, you have information that is relevant to the litigation you are conducting on behalf of the other client.

Can you co-counsel with an unconflicted lawyer?

In that case, the ABA Ethics Committee suggests that, as an alternative to withdrawing (which presents obvious and even acute problems , depending on the stage of the litigation ), you might be able to co-counsel with an un-conflicted lawyer who would shoulder the third-party discovery . A New York City Bar Association ethics opinion endorses that course of action. But a California opinion questioned whether such co-counsel would be truly independent so as to alleviate the conflict.

What happens if you fail to defend a foreign national against criminal charges?

If you fail to meet your obligations during the defense process, your reputation is at risk, as well as your client’s ability to remain in the United States, often causing separation from their families and friends. The law firm of Ronald P. Mondello, Esq. Attorney at Law helps both individuals facing crimmigration issues and attorneys who are representing clients with potential immigration consequences. Please call today for assistance or use our online contact form.

What to do if you plead guilty to a crime?

If your criminal defense client does plead guilty or get convicted of a crime that has immigration consequences, you should immediately call a crimmigration attorney to help avoid your client’s deportation. We can help do the following and more:

What is the legal obligation of a criminal defense attorney?

Criminal defense attorneys are under the legal obligation to provide effective assistance to each and every client. What constitutes effective assistance or ineffective assistance may vary substantially from case to case depending upon each client’s specific circumstances. One particular circumstance that is extremely important is whether or not your client is a U.S. citizen. For this reason, it is highly critical to determine the citizenship status of every client early on in the case in order to approach their defense appropriately, if necessary.