New Jersey Law Journal Publishes Hanan M. Isaacs’s Critique of Outmoded Legal Ethics Rule

Friday, April 9, 2010

Dear Editor:

A recent joint opinion of two state Supreme Court committees challenges lawyers’ convenience offices as “not bona fide.” In 2010, that is like enforcing a law requiring every licensed auto driver to carry a buggy whip.

With all the technology available to lawyers today, we stay in constant communication with our clients. To coin a phrase, “Our office is us.” When I am driving, I am in my mobile office; in my home, my home office; and on vacation, in my vacation office (but only sometimes).

When clients call many “real” law firms, no one knowledgeable picks up the phone, ever, because calls are passed directly to voicemail. Is that bona fide? Many weeks, I am out of the office much more than I am in it. Does that render my dedicated space no longer bona fide? Only partially bona fide? Bona fide one week, but not the next? These are distinctions without differences.

By comparison, for over 20 years, lawyers admitted to and practicing in the U.S. District Court for the District of New Jersey have not been required to maintain bona fide law offices. All such federal practitioners need is a New Jersey law license. Has anyone heard of a groundswell of ethics violations coming from federal bar members who do not have bona fide New Jersey law offices? How about for 20 years?

The Supreme Court should change Rule 1:21-1(a) to reflect modernity. Once a lawyer is licensed by the State of New Jersey, s/he should be permitted to practice law here, period. Any additional burdens on his or her practice are protectionist and class-based, and not designed to improve ethical conduct.

Right now, the only lawyers who commit ethical infractions are the ones with “real” offices. Surely, lawyers with convenience offices get the same ethics instruction as the rest of us, along with the same mandatory CLE. The lack of physical committed space is irrelevant to one’s moral compass. I predict the rate of ethical infractions will be constant, regardless of the bona fide office rule’s demise.

It is time for New Jersey to join the majority of jurisdictions that have abolished the bona fide office rule. We should replace it with one whose legitimate requirements (maintenance of client records, consistent communications with clients, and the like) are actually geared to client protection, not better-heeled-lawyer protection.

Hanan M. Isaacs