Link to original WordPerfect Document
3 N.J.L. 1821
September 19, 1994
138 N.J.L.J. 286
September 19, 1994
COMMITTEE ON ATTORNEY ADVERTISING
Appointed by the New Jersey Supreme Court
OPINION 19
Bona Fide Offices
This opinion is occasioned by the Committee's recent
consideration of a grievance concerning, among other things, a
member of this bar's failure to maintain a bona fide office for the
practice of law in this State, as required by R. 1:21-1. Although
the matter resulted in a recommendation of private discipline after
formal hearing, the Committee determined that given the pervasive
nature of this problem, particularly in the southern part of the
State, a formal advisory opinion was warranted.
While associated with a Philadelphia law firm Respondent, who
is admitted to the New Jersey and Pennsylvania bars, represented a
client in a medical malpractice action. Although the matter was
venued in a southern New Jersey county, and the firm had a New
Jersey office, Respondent met with his clients and performed all
legal work out of the firm's Philadelphia office.
Respondent ultimately left the firm and opened his own
practice in a small Pennsylvania suburb outside of Philadelphia.
At his client's request, he was formally substituted in as counsel
of record. At the time, Respondent did not have or intend to open
a New Jersey office, although he did have an "arrangement" with a
law firm in Camden County. His letterhead listed only a post
office box in a different Pennsylvania suburb and his office
telephone number. He did not open or maintain business or attorney
trust accounts in an approved New Jersey financial institution or,
as a Pennsylvania resident, file any forms designating the Clerk of
the New Jersey Supreme Court as agent upon whom service of process
may be made for all actions.
Upon receiving a letter from the Committee inquiring as to the
location of his New Jersey office and bank accounts, Respondent
answered a classified advertisement in a newspaper of general
circulation offering space to attorneys in need of a New Jersey
bona fide office. After a brief discussion with the attorney who
had placed the advertisement, Respondent rented space, sight
unseen, for $250 per month. He also opened business and trust
accounts in an approved New Jersey depository.
Respondent's oral lease afforded him part-time usage of an
office in a suite of offices occupied by the attorney who had
placed the advertisement. Under the terms of the lease, Respondent
had access to an empty office as needed and use of a receptionist,
fax machine, coffee services, conference rooms, library and other
such amenities. Secretarial services, photocopying and telephone
lines were not included and were to be provided by Respondent. It
was also his responsibility to contact the building's owner in
order to have his name placed in the building directory and on the
door to the suite. Respondent was not provided with a key to the
building or suite of offices.
On-site inspection by the Committee's investigator revealed
that Respondent's name was not listed in the building's directory
or on the door to the suite. The suite itself contained nothing to
suggest Respondent maintained a presence there. Absent were office
supplies, files, diplomas or personal belongings. The individual
offices to which Respondent would have had access were empty or
used for storage. The secretaries with whom the investigator spoke
had never seen, and some had never heard of, Respondent.
R. 1:21-1(a) provides, in pertinent part, as follows:
Except as provided below, no person shall practice
law in this State unless that person ... maintains
a bona fide office for the practice of law in this
State regardless of where the attorney is
domiciled. For the purpose of this section, a bona
fide office is a place where the attorney or a
responsible person acting on the attorney's behalf
can be reached in person and by telephone during
normal business hours. A bona fide office is more
than a maildrop, a summer home that is unattended
during a substantial portion of the year, or an
answering service unrelated to a place where
business is conducted.
In adopting this rule, the Supreme Court sought to protect the
public from those attorneys unfamiliar with local substantive and
procedural law due to sporadic and irregular practice of law in
this State.
Prior to 1969, the Court had required all attorneys practicing
in New Jersey to be domiciliaries of the State. However, the
source rule imposed an unnecessary burden upon those attorneys who
maintained their law offices here but preferred to live in another
state. A proposed alternative requirement, "regular attendance" at
a law office in this State, was deemed unlikely to impair the
policy of the source rule of "preventing occasional practice in
this State by an attorney once admitted here but who has since
moved to and practices in another state, losing his familiarity
with the law and its development in this State." However, the
alternative was, among other things, ambiguous, and would not
necessarily have prevented practice in this State by an attorney
whose principal offices were in a neighboring state but was present
in a New Jersey office once or twice a week. Consequently, in lieu
of domicile or "regular attendance," the version of the rule
adopted as part of the 1969 revision simply required maintenance in
this State of the attorney's principal law office.
The rule was amended yet again in 1982 to conform with the
Supreme Court's decision in In re Sackman, 90 N.J. 521 (1982). The
amendment eliminated the principal office requirement and instead
required domiciliaries and non-domiciliaries alike to maintain a
bona fide office, as defined by the rule, in this State. However,
the purpose of the rule remained the same: ensuring that New Jersey
attorneys maintain sufficient contact and familiarity with New
Jersey substantive and procedural law to serve their clients with
competence, and remain accessible and accountable to their clients,
opposing counsel, judges and other authorities in this State.
Unfortunately, the current version of the rule does not fully
define a bona fide office. Rather, other than stating that it is
a "place where the attorney or a responsible person acting on the
attorney's behalf can be reached in person or by telephone during
normal business hours," it provides only minimum requirements by
stating that it is something more than a "maildrop, summer home
that is unattended during a substantial portion of the year, or an
answering service unrelated to a place where business is
conducted." Based upon its stated language and intent, the
Committee has previously interpreted the rule as prohibiting
arrangements whereby an attorney simply has access to another
attorney's conference room, and the use of telephone switching
technology which automatically forwards calls to a New Jersey
number to a telephone line located outside this State.
Without even so much as a desk the attorney may call his or
her own, attendance will be infrequent at best. The host
attorney's receptionist or secretaries will, as in the case giving
rise to this opinion, presumably lack information about the
attorney's whereabouts, schedule and cases, and be unable to
contact him or her to obtain competent advice within a reasonable
period of time. Lacking a working relationship with the attorney,
they may also be hesitant or unwilling to accept service of process
or any other documents. That being the case, they will not satisfy
the rule's requirement that there be present in the office "a
responsible person acting on the attorney's behalf ... ."
Telephone switching technology will only serve to compound the
problem.
Clearly, in order to ensure that New Jersey attorneys maintain
sufficient contact and familiarity with New Jersey substantive and
procedural law to serve their clients with competence, and remain
accessible and accountable to their clients, opposing counsel,
judges and other authorities in this State, a more precise
definition is necessary. Consequently, the Committee construes R.
1:21-1 to require that a bona fide office be a place where clients
are met, files are kept, the telephone is answered, mail is
received and a responsible person acting on the attorney's behalf
can be reached during normal business hours.
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