New Jersey May Revise Bona Fide Office Rule and Make it More Confusing for Out of State Practitioners

I'm supposed to lug these over the bridge to New Jersey?

I am a Philadelphia lawyer, but I’m also licensed to practice in New Jersey. I don’t have an office in New Jersey because I’m not required to. I mean, I can practically see New Jersey from my office.

Yesterday I wrote about New Jersey’s bona fide office rule, and why I think it makes some sense in its current form. New Jersey wants it to be clear to everyone where an attorney can be reached during normal business hours. When it’s not clear where a person gets their mail, disaster can happen.

The rule was a compromise of an older rule that required New Jersey lawyers to have a bricks and mortar office within the state. Later the rule was relaxed, simply requiring a New Jersey attorney to make it clear where they practice law during normal business hours.

Practitioners like Carolyn Elefant have raised valid issues with the bona fide office rule – namely that lawyers who operate out of their homes  have to make their addresses available to the public. This is particularly problematic for those who represent accused criminals, especially females, who, under the current rule, must use their home address on their letterhead and advertisements if that’s where their bona fide office is located.

Brian Tannebaum has supported the rule, stating that clients deserve to know that their files are being kept in a safe place away from children, visitors, and pets, in a location with insurance and security. Brian also argues that “state Bars are not in the business of making it easy for lawyers to define law practice just because a bunch of unemployed whiners want to practice while sipping mocha lattes at Starbucks.”

Both make good points.

However, I understand Carolyn’s concern with the Rule, and I would not be opposed to modifications that allowed home based practitioners to enjoy a greater degree of privacy. For instance, a provision that allowed a home based practitioner to use a virtual office or a P.O. Box for mail, provided the attorney disclosed to their client that the practice is based out of their home and disclosed where their files will be kept. There is certainly nothing wrong with a home based practice, provided everyone knows what is going on and is on board with it. (which is also what Brian suggested, but I don’t think that’s how the bona fide office rule works in its current inception).

In my opinion, if a client doesn’t mind that their lawyer’s office is home based, I don’t see a problem. A lawyer should disclose to clients that their practice is home based, even if they don’t give out their home address.

However, Stephanie Kimbro writes that New Jersey is contemplating changing the bona fide office rule. While New Jersey is apparently trying to be more friendly to the realities of virtual offices, the proposed amendments create more of a problem than the Rule in its current form. According to Stephanie, the new proposed language for Rule 1:21-1(a) is:

Rule 1:21-1. Who May Practice; Attorney Access and Availability; Appearance in Court

(a) Qualifications. Except as provided below, no person shall practice law in this State unless that person is an attorney holding a plenary license to practice in this State, has complied with the Rule 1:26 skills and methods course requirement in effect on the date of the attorney’s admission, is in good standing, and complies with the following requirements, except as provided in paragraph (d) of this Rule, maintains a bona fide office for the practice of law. For the purpose of this section, a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time. For the purpose of this section, a bona fide office may be located in this or any other state, territory of the United States, Puerto Rico, or the District of Columbia (hereinafter “a United States jurisdiction”). An attorney who practices law in this state and fails to maintain a bona fide office shall be deemed to be in violation of RPC 5.5(a).

(i) An attorney need not maintain a fixed, physical location, but must structure his or her practice in such a manner as to assure prompt and reliable communication as set forth in RPC 1.4 with, and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice; provided, that an attorney must designate one or more fixed, physical locations in New Jersey where client files, and business and financial records, may be inspected on short notice by duly authorized regulatory authorities, where mail or hand-deliveries may be made and promptly received, and where process may be served upon the attorney for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto, in the event service cannot be effectuated pursuant to the appropriate Rule of Court.

(ii) An attorney who is not domiciled does not maintain a fixed physical location for the practice of law in this State [and does not have a bona fide office in this State], but who meets all the other qualifications for the practice of law set forth herein must designate the Clerk of the Supreme Court as agent upon whom service of process may be made for the purposes set forth in subsection (a)(i) of this Rule. [all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto, in the event that service cannot otherwise be effectuated pursuant to the appropriate Rules of Court.] The designation of the Clerk as agent shall be made on a form approved by the Supreme Court.

A person not qualifying to practice pursuant to the first paragraph of this rule shall nonetheless be permitted to appear and prosecute or defend an action in any court of this State if the person (1) is a real party in interest to this action or the guardian of the party; or (2) has been admitted to speak pro hac vice pursuant to R. 1:21-2; (3) is a law student or law graduate practicing within the limits of R. 1:21-3; or (4) is an in-house counsel licensed and practicing within the limitations of R. 1:27-2.

Attorneys admitted to the practice of law in another United States jurisdiction may practice law in this state in accordance with RPC 5.5(b) and (c) as long as they maintain a bona fide office.

No attorney authorized to practice in this State shall permit another person to practice in this State in the attorney’s name or as the attorney’s partner, employee or associate unless such other person satisfies the requirements of this rule

The first part of Section (a)(i) states: “An attorney need not maintain a fixed, physical location, but must structure his or her practice in such a manner as to assure prompt and reliable communication as set forth in RPC 1.4 with, and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice.”

Makes sense.

I also agree with Stephanie that the Committee has the right idea: “the rule’s underlying purpose – ensuring ‘that attorneys are available and can be found by clients, courts, and adversaries’ – are still paramount.”  The Committee report also states that they made the decision not to try to define “bona fide office” and “virtual law office” but instead to focus on “access and availability”.

In my opinion, the Rule’s focus should be two fold: (a) where can a lawyer be reached during normal business hours?; and (b) do clients know where their files are being kept? That’s all.

However, the second part of Section (a)(i) confuses me. An attorney apparently now must designate a physical location in New Jersey so that their files can be inspected on short notice, mail can be received, and papers can be hand delivered.

That doesn’t make sense…

First, the proposal undermines the purpose of the rule.  Under the proposed amendments, now out of state New Jersey attorneys must be responsible not only for their actual mailing address, but a second address in New Jersey. This could create confusion, sort of like what I wrote about about yesterday. Ironically, it also forces out of state New Jersey practitioners to acquire a virtual office within the state, which will, among other things, drive up the cost of legal services. I say this is ironic because the The Advisory Committee on Professional Ethics (ACPE) and Committee on Attorney Advertising (CAA) issued a joint advisory opinion expressing concerns about virtual offices. Specifically, the Committees said that clients were likely to divulge confidential information to employees not employed by the law firm. However, this proposed rule change now seems to encourage the use of virtual offices by out of state practitioners.

Second, what is a practitioner who isn’t located close to New Jersey supposed to do? For instance, I haven’t always been kind to Rachel Rodgers (a New Jersey / New York lawyer living in Arizona) on this blog, but if she were to complain about this revision to the Rule, I would agree with her. Does the bar expect someone like Rachel to fly from Arizona to New Jersey at their whim? This revision forces New Jersey practitioners to live close to the state. Of course, one could make an argument that an attorney should at least have some access to a state where they purport to practice.

Finally, practically speaking, how is this Rule actually supposed to work? Is a Philadelphia practitioner like myself supposed to throw a filing cabinet into my car and drive it to New Jersey if the bar wants to perform an audit…? My files are kept here at my bona fide office in Philadelphia. What is the point of having to take them into a virtual conference room in New Jersey? I do not like the idea of having to worry about getting paperwork in two different locations, especially considering that receiving mail at my office in Philadelphia works just fine, thanks.

While I appreciate the point of New Jersey’s bona fide office rule, I don’t think this new approach works. It might not even be constitutional. What the New Jersey bar ought to do is reserve the right to audit someone’s files anywhere in the country, while adopting the first section of (a)(i) to ease the restrictions on virtual offices. The state bar’s focus should be on making sure that it’s clear where an attorney can be contacted, as well as ensuring that clients know where their files are being stored. This proposal just creates issues and expenses for out of state practitioners.

(Thanks to Antonin Pribetic for sending me this article. And a big shout out to Stephanie Kimbro for her article).

3 Responses to New Jersey May Revise Bona Fide Office Rule and Make it More Confusing for Out of State Practitioners

  1. shg says:

    One consideration for the rule is that when clients are unable to contact a lawyer who is “practicing” in one state while their physical presence is elsewhere, they may find themselves in a quandary. What if no one answers the phone or returns calls? What if they are unhappy with the lawyer and seek to exercise their unfettered right to discharge, and need their file back to provide to new counsel with deadlines looming?

    Rules aren’t made for when things go well, but for when problems occur. Nor are they made for the convenience of the lawyer, but for the welfare of the client. This remains the nagging problem with many of the arguments for “new ways,” that presume everything goes fine but work to the client’s detriment when they don’t.

    Remember, it’s always about the client, and that’s the responsibility and sacrifice lawyers make when they join the profession.

    • Here is my beef with that. The current bona fide office rule works pretty well. Right now a New Jersey lawyer simply has to disclose where their actual office is to the courts, adversaries, and clients. That office can be a Starbucks, provided everyone knows about it and that’s where you can be contacted.

      However, as Brian put it, the Slackoisie complained. Some lawyers didn’t like the idea of giving their home office address out. The New Jersey bar listened, and now they’re accommodating use of virtual offices at the expense of out of state practitioners, most of whom have bona fide offices. None of this is good for clients, as the cost of maintaining a second office will be passed onto them.

      I agree with the sentiment of your post, but I just don’t see a need to change the current bona fide office rule. The focus should be on accountability, accessibility, and disclosure. If the bar wanted to allow virtual offices, what they should have done is modified the current rule to allow home based practitioners to use a PO box or something, provided the attorney discloses that client files will be stored (at home / in a trunk, in the cloud, whatever). Instead, they imposed a new rule on all out state practitioners.

      What’s particularly bothersome is how close my bona fide office is to New Jersey. I can see Camden from there. However, I need to have a second location over the bridge now if the Rule goes through. So that people can have virtual offices.

  2. Henry says:

    Re: the argument for the rule: “Clients deserve to know that their files are being kept in a safe place away from children, visitors, and pets, in a location with insurance and security.”

    The rule accomplishes none of these things, because it does not require any of these things.

    Re: the inappropriate and unprofessional comment: “a bunch of unemployed whiners want to practice while sipping mocha lattes at Starbucks.”

    If they were unemployed, there would be no issue and no clients to worry about. Considering almost half of the bar consists of solo practitioners, this comment is way off base.

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