New Jersey: Prosecutors Cannot Publicly Display Seized Contraband

In February, the New Jersey Advisory Committee on Professional Ethics opined that a prosecutor is prohibited from making “extrajudicial statements featuring displays of seized drugs, weapons, or other contraband.” Such statements violate New Jersey Rules of Professional Conduct 3.6 (Trial Publicity) and 3.8 (Special Responsibilities of a Prosecutor).

The issue on tap: whether exhibiting seized contraband from a criminal investigation to the public was appropriate. The inquirer explained that displaying the seized drugs “would further public awareness” of the ongoing opioid drug epidemic and assist law enforcement in combating the epidemic. He further argued that the 2004 Rules amendments supersede New Jersey Supreme Court precedent. Specifically, that Rule 3.8(f) supersedes Rule 3.6 on this particular issue.

 Rule 3.8(f) allows statements that “have a substantial likelihood of heightening public condemnation of the accused when such statements are necessary to inform the public of the nature and extent of the prosecutor’s action and would serve a legitimate law enforcement purpose.”

The Ethics Committee disagreed with the inquirer. The prosecutor’s argument was overbroad, the Ethics Committee opined, and noted that the 2004 amendments dealt with a different scenario than opioid drug trafficking. The Committee cautioned that “[t]here would be very little left of the prohibition against prejudicial extrajudicial statements if mere heightened public awareness of criminal activity was sufficient to justify extrajudicial statements by prosecutors.” While other jurisdictions adopted language to Rule 3.6 that allowed lawyers to state “at the time of seizure, a description of the physical evidence seized, other than a confession, admission, or statement”, New Jersey purposely did not retain this language when it adopted Rule 3.6 in 1984.

While acknowledging the danger of the opioid crisis in New Jersey, the Committee was very clear in stating that “[e]xtrajudicial statements featuring displays of seized drugs, weapons, or other contraband, however, do not accord with New Jersey’s Rules of Professional Conduct.

To read the full ethics opinion, click here.

A Lawyer in Motion—A Conflicts Puzzle Solved

The Utah Bar recently considered the following conflicts inquiry. Lawyer A represented a wife in a divorce proceeding and then moved to a new law firm #2. New law firm #2 had previously represented the husband in the same divorce; the husband consented to the wife’s attorney’s continued representation of her for the purpose of mediation and settlement negotiation. The wife’s attorney did not have access to the husband’s file.

Later, the wife’s attorney moved to a third, separate law firm #3. The wife approached her attorney at law firm #3 to seek representation for post-decree enforcement proceedings against the former husband. So, could the attorney continue to represent the wife while at law firm #3?

According to the Utah State Bar’s Ethics Advisory Opinion Committee, the wife’s attorney could continue to represent her at the third firm. In a February 2016 opinion, the Committee explained that a lawyer may represent a spouse in post-divorce matters at a firm, which the lawyer recently joined, even if the lawyer’s former firm previously represented the other spouse in the divorce case. So long as the wife’s lawyer has no actual knowledge of the husband’s information, no ethical violation occurs.

Utah’s Rule of Professional Conduct 1.9(a) states that a “lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.” Applying this rule and its exceptions to the situation stated above, the Committee explained that while the spouses were considered adverse parties, the conflict had been cured. The Committee explained the actions that cured the conflict included the written consent from the husband and the attorney’s sequestration from the husband’s information at the second firm.

Read the recent advisory opinion here.

South Carolina Attorneys May Tout Certification as Privacy Professional

Can attorneys use a Privacy Professional as their designation in a signature block? Are attorneys implicating ethics rules, such as advertising, by doing so? The South Carolina Bar recently issued an Ethics Advisory Opinion stating that a lawyer who is a Certified Information Privacy Professional/US (“CIPP/US”) may use that designation in her e-mail signature block and other communications.

A hypothetical was posed to the Ethics Advisory Committee by a member of the South Carolina Bar: In the hypothetical, an attorney, working for an entity that collects and processes private data, obtained a CIPP certification by passing an exam that was “designed to be challenging” and that “required study and preparation.” The attorney was curious as to whether she may use the designation “CIPP/US” in her e-mail signature block. The use of the designation was found to be permissible because “the designation truthfully reflects a recognized professional certification available to both lawyers and non-lawyers[s], is objectively verifiable, and is not misleading.” The committee reasoned that use of the designation does not violate Rules 7.1, 7.2, or 7.4. of the South Carolina Rules of Professional Conduct.

Rule 7.1 provides that a lawyer “shall not make false, misleading, or deceptive communications about the lawyer or the lawyer’s services.” As the committee explained, use of the designation is “neither false nor misleading” because the “designation is given by a recognized association” and “granted by the association based on objectively verifiable criteria.”

Rule 7.2(a) “allows advertising through written, recorded or electronic communication, including public media.” Here, the committee explained that use of the designation is information because it “alerts a person that Lawyer has taken and passed examinations in privacy protection topics.”

Finally, Although Rule 7.4(b) prohibits the use of “any form of the words ‘certified,’ ‘specialist,’ ‘expert,’ or ‘authority’ when describing areas of limited or concentrated practice,” use of the designation is permissible. Referencing S.C. Bar Ethics Adv. Op. 93-97, the committee reasoned that an “attorney who was licensed as both an attorney and a Certified Professional Accountant” could use both professional designations, despite Rule 7.4(b).

For more information on this recent advisory opinion click here.

Same-Sex Civil Marriages: Ohio Judges Are Compelled to Follow the Rule of Law

On August 7, 2015, the Supreme Court of Ohio issued Advisory Opinion 2015-1. The opinion explains that a judge with the authority to perform civil marriages must take an oath declaring they will perform their duties impartially. This Judicial Oath of Office (“Oath”) states: “I, (name), do solemnly swear that I will support the Constitution of the United States and the Constitution of Ohio, will administer justice without respect to persons, and will faithfully and impartially discharge and perform all of the duties incumbent upon me as a judge according to the best of my ability and understanding. [This I do as I shall answer unto God.”]

Judges have the authority to perform marriages and must follow the Code of Judicial Conduct. When a judge performs a civil marriage ceremony, “the judge is performing a judicial duty and thus is required to follow the Code in the performance of that duty.” The Code mandates judges to remain impartial and fair, while prohibiting conduct that would appear as being biased or prejudiced to others.

The recent Supreme Court decision legalizing same sex marriage overruled jurisdictions—such as Ohio—that restricted marriage to only opposite-sex couples. In order to ensure that judges continue to perform their responsibilities impartially, the Ohio Supreme Court Board of Professional Conduct has held that Ohio state judges who perform marriages in their judicial capacity must also perform same-sex marriages.

The Board found that not performing same-sex marriages while still performing opposite-sex marriages, or refusing to perform all marriage ceremonies because the judge opposes same-sex marriage, violates the Oath judges have taken. Additionally, this refusal violates Ohio Rule of Professional Conduct 8.4(g), which does not allow lawyers to “engage, in a professional capacity, in conduct involving discrimination prohibited by law because of . . . sexual orientation.”

The Board also cautioned that failing to perform same-sex marriages violates a judge’s responsibility to remain impartial. Thus, failure to perform same-sex marriage ceremonies signifies to the public that the judge maintains a personal bias or prejudice towards a particular group. Moreover, a judge may not refrain from performing all marriages so as to avoid conducting same-sex marriage ceremonies. A judge’s position that he will not conduct any marriages may also be interpreted as bias towards a particular class, thereby raising reasonable questions about the judge’s impartiality in any case in which sexual orientation is an issue and resulting in disqualification of the judge.

Bottom line: The U.S. Supreme Court has upheld the right of same-sex couples to marry—Ohio judges must adhere to the rule of law.

To read the Ohio opinion, click here.