Attorney disciplinary matters are highly “fact-sensitive.” See, e.g., In re Kinnear, 105 N.J. 391, 395 (1987); In re Litwin, 104 N.J. 362, 366 (1986). While the importance of “the facts” is not news to any general litigator, the significance—sometimes of even the smallest fact—is often under-appreciated when representing a lawyer facing ethics charges. Importantly, the factual nuances impact not only the determination of whether an RPC has been violated, but also the quantum of discipline imposed.

Perhaps, unawareness of this fact sensitivity is borne of a misimpression within the Bar that there is no room for flexibility in the Rules of Professional Conduct themselves or in the public bodies charged with their enforcement. Other than the truism that arranging discipline by consent is not akin to the factual creativity often seen in criminal plea bargaining, it may be precisely the absence of “plea bargaining” in disciplinary cases that requires such careful explanation and presentation of the facts as they are. That is because the smallest fact may help contextualize a lawyer’s behavior, defeating a charge or mitigating the discipline.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]