An ethics charge against a lawyer was thrown out by the New Jersey Supreme Court last week, according to Thomson Reuters. But lawyers should still look at this decision as a caution, rather than an excuse to breathe a sigh of relief.
In the New Jersey case, a lawyer was accused of violating the state Supreme Court's rules prohibiting "conduct involving dishonesty, fraud, deceit or misrepresentation," for displaying the seal of the New Jersey Board on Attorney Certification, even though the attorney had not been certified. The seal appeared on numerous pages on the site, and was apparently in place for two years before he found out that the Supreme Court Committee on Attorney Advertising had received a grievance about it.
The ethics hearing panel concluded that a reprimand was warranted because the attorney had a duty to monitor his website and ensure that it contained no improper content, but the Disciplinary Review Board disagreed, stating that inclusion of the seal on the website was unintentional and inadvertent, and that the attorney took it down immediately upon learning of its presence on the site.
The Disciplinary Board did caution that attorneys who inappropriately displayed the seal in the future would be disciplined - and this is what lawyers should expect in all jurisdictions.
The ABA Model Rules of Professional Responsibility are the rules upon which many states base their ethical rules.
ABA Model Rule 8.4 Misconduct states in part:
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
ABA Model Rule 7.1 (Communications Concerning A Lawyer's Services) provides:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
ABA Model Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants) provides that lawyers are responsible for making "reasonable efforts" to ensure that the conduct of nonlawyers employed or retained by or associated with a lawyer "is compatible with the professional obligations of the lawyer"
"a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if" the lawyer directs the conduct, ratifies it afterward, or has direct supervisory authority over the individual and knows of the conduct "at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action."
Most, if not all states (including New York - See the New York Rules of Professional Conduct, Rules 7.1, 5.3 and 8.4) have similar rules.
While the attorney may not have actually known that the seal was in place on his website, based upon the wording of the Rules, this ignorance should not be an excuse. Lawyers are responsible for the conduct of the people they hire and in this age of the internet, lawyers must be aware of the activities undertaken on their behalf to promote their practice online. According to the Reuters article, the seal in question appeared on 16 different pages for two whole years on the attorney's site.
Even if the attorney was actually unaware of the presence of the seal, under these facts, he most certainly should have been aware - and he could not have made "reasonable efforts" to ensure that the individual he hired to develop his website (who happened to be a cousin residing in another state who 'assumed' that all attorneys in New Jersey were certified) complied with the Rules.