Rule 1:20-3. District Ethics Committees; Investigations

(a) Disciplinary Districts The Supreme Court shall establish, and may from time to time alter, disciplinary districts consisting of defined geographical areas and shall appoint in each such district a District Ethics Committee which shall consist of such number of members, not fewer than eight, as the Court may determine, at least four of whom shall be attorneys of this state, at least two of whom shall not be attorneys, all of whom shall either reside or work in the district or county in which the district is located.

(b) Appointments Members of Ethics Committees shall be appointed by, and shall serve at the pleasure of the Supreme Court for a term of four years. With the approval of the Supreme Court, a member who has served a full term may be reappointed to one successive term. A member serving in connection with an investigation pending at the time the member's term expires may continue to serve in such matter until its conclusion. In order that, as nearly as possible, the terms of one-quarter of the members shall expire each year, the Supreme Court may, when establishing a new Ethics Committee, appoint members for terms of less than four years and members so appointed shall be eligible for reappointment to a full successive term.

(c) Officers; Organization The Supreme Court shall annually designate a member of each Ethics Committee to serve at its pleasure as chair and another member to serve as vice-chair. Whenever the chair is absent or unable to act or disqualified from acting due to a conflict, the vice-chair shall perform the duties of the chair. The chair shall be responsible for administering the Ethics Committee. Under the chair's direction, the vice-chair, or another Ethics Committee member designated by the chair, shall be responsible for administering all matters where a complaint has been filed. Each Ethics Committee shall hold an organization meeting in September of each year and shall meet thereafter at least monthly except that, with the approval of the Director, an Ethics Committee may meet less frequently. The Ethics Committee shall also meet at the call of the Supreme Court, the chair, the Board or the Director. The Director shall, after consultation with the chair, appoint a secretary who shall not be a member of the Ethics Committee but who shall be a member of the bar maintaining an office within the district or county in which the district is located. The secretary shall continue to serve at the pleasure of the Director and shall be paid an amount annually set by the Supreme Court to reimburse the secretary for costs and expenses. The secretary shall keep full and complete records of all Ethics Committee proceedings, shall maintain files with respect to all inquiries and grievances received and investigations undertaken, shall transmit copies of all documents filed immediately on receipt thereof to the Director and shall promptly notify the latter of each final disposition. Reports with respect to the work of the Ethics Committee shall be filed by the secretary with the Director as instructed by the Director.

(d) Office Each Ethics Committee shall receive grievances at the office of its secretary and at such additional places as shall be designated by the Director.

(e) Screening; Docketing The secretary shall evaluate inquiries and grievances in accordance with this rule and shall docket, decline, or dismiss the matters within 45 days of their receipt. The secretary shall not conduct an investigation of a grievance.

(1) The secretary shall evaluate all information received by inquiry, grievance or from other sources alleging attorney unethical conduct or incapacity by an attorney maintaining an office in that district. If the attorney is subject to the jurisdiction of the Court and the grievance alleges facts which, if true, would constitute unethical conduct as defined by the Rules of Professional Conduct, case law or other authority, or incapacity, the matter shall be docketed and investigated. (2) The secretary shall decline jurisdiction if: (A) the attorney is not subject to the jurisdiction of the Supreme Court of New Jersey, in which case the matter shall be declined and referred to the appropriate entity in any jurisdiction in which the attorney is admitted; (B) the matter involves an inquiry or grievance regarding advertising or other related communications within the jurisdiction of the Committee on Attorney Advertising (R. 1:19A-2(a)), in which case the matter shall be sent to that committee unless the matter has been referred by the Advertising Committee in accordance with R. 1:19A-4(e) or (h); (C) the facts stated in the inquiry or grievance involve circumstances which the Supreme Court has determined through the adoption of court rules or administrative guidelines will not be entertained, in which case the matter shall be declined; (D) the grievance involves aspects of a substantial fee dispute and a charge of unethical conduct, unless so directed by the Director or unless the matter is referred by the Fee Committee in accordance with Rule 1:20A-4. (3) The secretary, with concurrence by a designated public member, shall decline jurisdiction if the facts stated in the inquiry or grievance, if true, would not constitute unethical conduct or incapacity. (4) If a grievance is not in writing and if the secretary concludes that the grievance must be declined under subsection (e)(2) or that the grievant alleges facts that, even if true, would not constitute unethical conduct or incapacity, the secretary shall so advise the grievant and that if the grievant wishes further consideration the secretary will provide a written attorney grievance form for completion. Unless declination is mandatory under subparagraph (e)(2), on receipt of a properly completed attorney grievance form the secretary will have the grievance reviewed by one or more public members of the Ethics Committee designated by the secretary. If a designated public member agrees with the secretary, the matter shall be declined. Otherwise, the matter shall be docketed and assigned for investigation. (5) If a matter is declined, the secretary shall furnish a concise written statement to the grievant of the reasons therefor and shall enclose a copy of the court rule or written guideline for declination approved by the Supreme Court. (6) There shall be no appeal from a decision to decline a grievance made in accordance with this rule. An appeal may be taken from dismissal of a grievance after docketing in accordance with R. 1:20-3(h).

(f) Related Pending Litigation If a grievance alleges facts that, if true, would constitute unethical conduct and if those facts are substantially similar to the material allegations of pending civil or criminal litigation, the grievance shall be docketed and investigated if, in the opinion of the secretary or Director, the facts alleged clearly demonstrate provable ethical violations or if the facts alleged present a substantial threat of imminent harm to the public. All other grievances involving such related pending civil and criminal litigation may be declined and not docketed. If the matter has already been docketed when the related pending litigation is discovered, the matter may be administratively dismissed, provided the matter is still in the investigative stage. The grievant shall be informed in writing of any decision, together with a brief statement of the reasons therefor and a copy of any Court Rule or written guideline supporting declination. Once a formal complaint has been filed, the matter shall not be dismissed nor held in abeyance pending completion of the related litigation, unless so authorized by the Director. Whenever an attorney is a defendant in any criminal proceeding, the Director shall docket the matter and may, in the Director's discretion, investigate and prosecute the disciplinary case.

(g) Investigation

(1) Generally . Except in those districts in which the Director assigns investigators, the chair of the Ethics Committee shall assign an attorney member to each docketed case to conduct such investigation as may be necessary in order to determine whether unethical conduct has occurred or whether the respondent is disabled or incapacitated from practicing law. (2) Notice to Respondent. No disposition other than dismissal, declination or designation as untriable shall be taken without first notifying the respondent in writing of the substance of the matter and affording the respondent an opportunity to respond in writing. Notice to the respondent shall be given by mail addressed to the address listed either in the current edition of the New Jersey Lawyer's Diary and Manual or with the Lawyers' Fund for Client Protection. (3) Duty to Cooperate. Every attorney shall cooperate in a disciplinary investigation and reply in writing within ten days of receipt of a request for information. Such reply may include the assertion of any available constitutional right, together with the specific factual and legal basis therefor. Attorneys shall also produce the original of any client or other relevant law office file for inspection and review, if requested, as well as all accounting records required to be maintained in accordance with R. 1:21-6. Where an attorney is unable to provide the requested information in writing within ten days, the attorney shall, within that time, inform the investigator in writing of the reason that the information cannot be so provided and give a date certain when it will be provided. (4) Failure to Cooperate. If a respondent fails to cooperate either by not replying in writing to a request for information or by not producing the attorney's client and/or business file or accounting records for inspection and review, the Office of Attorney Ethics may file and serve a motion for temporary suspension with the Supreme Court, together with proof of service. The failure of a respondent to file a response in opposition to the motion may result in the entry of an order of temporary suspension without oral argument until further order of the Court. An attorney temporarily suspended under this rule may apply to the Court for reinstatement on proof of compliance with subsection (3) of this paragraph on notice to the Office of Attorney Ethics. (5) Notice to Grievant. The substance of respondent's written response shall be communicated to the grievant, who shall be afforded an opportunity to respond in writing within 14 days of receipt of the communication. (6) Investigative Subpoena. During the investigation of any matter, a subpoena may be issued in accordance with R. 1:20-7(i) in the name of the Supreme Court of New Jersey.

(h) Dismissal and Appeal; Administrative Dismissal The investigator shall report in writing to the chair, providing a copy to the secretary. The report shall set forth the facts, together with a recommendation for action. If the chair concludes that there is no reasonable prospect of proving unethical conduct or incapacity by clear and convincing evidence, the matter shall be dismissed. Written notice of the facts and reasons for dismissal shall be provided to the respondent, the Director, and the grievant, who shall be advised of the right of appeal to the Board within 21 days as provided by Rule 1:20-15(e)(2). The Director may authorize that a grievance be declined or administratively dismissed where either the attorney has been disciplined and the Director determines that the processing of additional matters against the respondent would not likely result in the imposition of substantially different discipline, or the attorney, although not yet disciplined, is already the subject of disciplinary proceedings and the nature or time periods covered by the additional grievances are similar to other unethical conduct already being pursued, so that the results would be likely to be merely cumulative. If so approved, the secretary shall give notice of declination or administrative dismissal to any grievant, together with an explanation of the reasons supporting the action.

(i) Determination of Unethical Conduct

(1) Generally. If the chair determines that there is a reasonable prospect of a finding of unethical conduct by clear or convincing evidence, a further determination shall be made as to whether such conduct is either unethical conduct or minor unethical conduct. (2) Minor Unethical Conduct. (A) Defined. Minor unethical conduct is conduct, which, if proved, would not warrant a sanction greater than a public admonition. Unethical conduct shall not be considered minor if any of the following considerations apply: (i) the unethical conduct involves the knowing misappropriation of funds; (ii) the unethical conduct resulted in or is likely to result in substantial prejudice to a client or other person and restitution has not been made; (iii) the respondent has been disciplined in the previous five years; (iv) the unethical conduct involves dishonesty, fraud or deceit; (v) or the unethical conduct constitutes a crime as defined by the New Jersey Code of Criminal Justice (N.J.S.A. 2C:1-1 et seq.). Classification of unethical conduct as minor unethical conduct shall be in the sole discretion of the Director. (B) Agreements in Lieu of Discipline. (i) If, as a result of investigation, the chair concludes that minor unethical conduct has occurred, the chair may request that the Director, or his designee, divert the matter and approve an agreement in lieu of discipline. Such request shall be accompanied by any initial grievance, the respondent's response, an investigative report, the written agreement signed by the respondent, and a letter to any grievant enclosing a copy of the agreement. The letter shall give ten days notice to the grievant that the Director is being asked to approve the disposition and that any comments must be sent to the Director within that time. Diversion shall not be available subsequent to the filing of a complaint. (ii) There shall be no appeal from the Director's decision. (iii) An agreement in lieu of discipline may contain an agreement to meet, within a specified period (usually no more than six months), stated conditions addressed, to the extent practicable, to the remediation of the cause of the unethical conduct. Such conditions may include, but are not limited to, reimbursement of fees or costs, completion of legal work, participation in alcohol or drug rehabilitation program, psychological counseling or satisfactory completion of a course of study and such other programs as are developed. If approved, the Director shall monitor the terms of agreement. If the respondent fulfills the terms, the matter shall be dismissed. (C) Other Process. If an attorney declines to agree to divert a matter to administrative disposition under subparagraph (B), or if the Director determines, as a matter of exclusive discretion, that the attorney does not qualify for diversion or has failed to comply with the terms of the diversion agreement, the matter shall proceed in accordance with subparagraph (i)(3)(A) of these rules. (3) Unethical Conduct. (A) Defined. All ethical violations of the Rules of Professional Conduct, case law, or other authority not determined in accordance with these rules to be minor unethical conduct shall be processed as unethical conduct. (B) Process. Unethical conduct may be prosecuted by the filing of a complaint under R. 1:20-4 or through Discipline by Consent under R. 1:20-10.

(j) Incapacity If the Director or the chair conclude that there is a reasonable prospect of proving incapacity by clear and convincing evidence, the matter shall proceed as provided under R. 1:20-12.