NJ Bar’s New President Talks Ethics Rules on Dating Clients

Norberto Garcia’s first in-court appearance as New Jersey State Bar Association president got a little personal Monday, as the civil litigator had to defend the bar’s stance on attorneys having sexual relationships with clients.

“Matters of the heart,” “what a text means,” and “rekindle a relationship” aren’t things usually heard in the New Jersey Supreme Court, but Garcia communicated the bar’s concern over a series of proposed rules changes—including an effort to codify the rules around attorney-client relations.

“I don’t think it’s ever a good idea to have sexual relations with the client,” Garcia said, throwing his hands up. “But the state bar has a concern that the blanket rule would not catch all the exceptions and nuances and would result in confusion.”

The back-and-forth came during the court’s annual “rules hearing,” a tradition where the justices leave their robes in the closet and sit at the bench in business attire. Chief Justice Stuart Rabner said the clothes are an effort to make a venue normally reserved for adversarial arguments play more like a conversation among colleagues.

Garcia, who was sworn in over the weekend, weighed in on procedural, ethics, and evidence rules that could alter practice for the roughly 100,000 practitioners barred in New Jersey.

Expert Qualification

One issue that could impact both high-dollar civil litigation and high-tech criminal procedure has split the state bar: expert qualification for trial testimony.

New Jersey’s guidelines, codified in Civil Procedure Rule 702 and interpreted by decades of case law, are slightly different than federal language for that same rule. Interpretation of New Jersey’s standard is hotly contested, especially in a state where higher court scrutiny can bolster criminal defendants’ ability to exclude evidence ranging from “shaken baby” allegations to ID by facial recognition.

Garcia, a partner at Blume Forte, said the bar wasn’t going to recommend or caution against adopting federal language. The bar was split, he said, between those wanting to adopt the change to clarify the rule and others worried a language alignment would import federal case law into New Jersey courts.

Justices Anne M. Patterson and Rachel Wainer Apter pushed back, suggesting that if the court made the change there could be a comment included with the rule instructing courts to not import federal case law.

Timothy Freeman, a partner at Gallo Vitucci Klar and product liability lawyer who also testified Monday, said the defense bar would support such a move.

That way, courts could benefit from the clearer structure and not have missteps while “parceling the rule together"—an inconsistency researchers at the federal level also noticed before recently updating their rule, he said.

Relationships With Clients

The justices seemed divided over Garcia’s concern about a change to rules regarding sexual relationships with clients.

Justice Fabiana Pierre-Louis pointed out that the proposed rule has straight-forward limiting language, including reserving ethics exposure to lawyers in a firm dating only members of the “litigation control group"—the group of people within a client organization that help guide the litigation.

Garcia said even that isn’t black and white. In large firms it’s not uncommon for someone to get brought on a matter quickly whenever their expertise can help with a motion. And in the legal profession, people with long hours tend to date the other professionals they interact with.

“Most lawyers I know, their significant others come from work,” he said. “We work all the time, this is all we do.”

Generally, state ethics rules permit lawyers to have sex with a client they were sleeping with before the lawyer started representing them, as it’s a pre-existing relationship.

But even that has definitional issues, said Justice John Jay Hoffman, pondering where to draw the line with “situationships,” or with relationships that are rekindled.

“Maybe someone thinks it’s over and the other thinks it’s still going on,” Garcia said. “We’re very uncomfortable with a blanket rule.”