NJ May Revise Bona Fide Office Rule

The New Jersey State Supreme Court Professional Responsibility Rules Committee has recommended an amendment to the bona fide office rule, Rule 1:21-1(a). The proposed changes would no longer require that the lawyer provide a physical office location as long as the lawyer was accessible by his or her clients, the courts and other lawyers, including for purposes of service of process.

The changes proposed by the committee would overrule the Joint Opinion issued in March 25, 2010 that drew much criticism for denying lawyers the freedom under Rule 1:21-1(a) to use a temporary office location or shared office space with a shared receptionist claiming that such arrangements did not provide sufficient access for clients, courts and other lawyers for lack of a 9-5 traditional business hour office structure. Virtual law practitioners who wished to work from home offices were upset by the Joint Opinion that required that they place their home contact information on any advertising for their practice or on their website.

This Committee’s proposed changes would allow lawyers, especially those whose work is primarily transactions-based, to use alternative office locations other than a traditional brick and mortar structure. The proposed change are at the bottom of this post.

However, because they have included access “for service of process”, inspection of records and HAND DELIVERIES, this appears to require lawyers licensed to practice NJ law but who are residing in other states to come up with a physical NJ address in the State for those purposes. I’m not sure why this location would necessarily have to be in NJ. (HAND DELIVERIES? I just can’t get over that one.)  As a member of the State Bar, I would assume they would have your mailing address in the state where you lived and other sufficient contact info. to communicate any action with the lawyer via ELECTRONIC COMMUNICATION.

The other portion of the proposed changes that baffles me a little is this: “must designate one or more fixed, physical locations where client files, and business and financial records, may be inspected on short notice by duly authorized regulatory authorities”. If the lawyer is residing across the country and practicing NJ law on a virtual law office from home or a temporary office space, I guess this means allowing the NJ regulatory authority to travel out to your home to inspect client records.

Well, if that’s the case, then there’s a new argument in support of law office data being stored in the cloud – ease of random auditing across the country! In fact, the report suggests you would be required to bring your files to a designated place in NJ for inspection on short notice – perhaps the same place you have to pay for to receive all those HAND DELIVERIES and service of process?

This Committee report states that when the ACE met again to discuss the bona fide office joint opinion they were divided on whether to amend it or not citing that “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”. I’d agree that is exactly the way to think about this.

My opinion: Reconsider the definition of “accessibility” to match what it actually means to the lawyer’s particular client base. As long as the lawyer is not misleading to the public about how he or she delivers legal services, and adjusts what is needed in terms of accessibility based on the practice area and needs of the client base he or she serves, then it should not matter where the lawyer physically practices law. Clients have notice of where you are, they know how to contact you and when you are available, they consent. If they don’t consent to your version of accessibility, then they go to a different law firm that meets their needs. It’s that simple. If your practice is litigation-based, then you provide more detailed contact info. for the courts and lawyers and clients when you need to meet in person.

There are more ways to be “accessible” than an physical office within a fixed geographic boundary and that extends to this service of process and auditing requirement. If the lawyer wants to live in another state, then they can make themselves and their law office data accessible to the NJ regulatory authorities with cloud-based tools. Again, accessibility for these purposes is readily available and can be much more affordable. A lawyer needing flexibility to live or move around the country or world is more likely to provide access online than they are to rent a PO Box or temporary office space for in-person inspection of records or service of process.

I look forward to learning where they go with these proposed changes.

[Many thanks to Ekaterina Schoenefeld for sharing the proposed changes with me.]

According to the report, 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