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Can a lawyer advise a client to contact other lawyers for representation on a pretextual basis just to conflict them out of representing the adversary?

Short answer No. The Committee concludes that advising a client to make pretextual contacts with lawyers in order to disqualify potential adversary counsel is conduct prejudicial to the administration of justice under RPC 8.4(d) because it impedes a litigant's effective access to counsel of choice, and the practice should cease immediately.
Bar
NJACPE
Issued
April 24, 2006

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This page answers the general question as of 2006. Ask about yours and see what the current New Jersey Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2006
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
How much weight this carries: The Supreme Court of New Jersey has held that the Advisory Committee's published opinions are binding on the ethics committees that decide grievances (R. 1:19-6), and that a lawyer who does not follow one "does so at his peril" (Higgins v. Advisory Committee on Professional Ethics, 73 N.J. 123 (1977)). The Court can modify or vacate an opinion. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

Opinion 703 addresses a practice in which a client is advised to contact other lawyers for representation essentially on a pretextual basis, so as to disqualify those lawyers from later representing an adversary. The example the inquirer raised involved matrimonial cases, where a lawyer or firm engaged by one party may be advising that party to make such contacts to conflict out potential opposing counsel.

The Committee concludes that any such advice by a lawyer plainly constitutes prohibited conduct prejudicial to the administration of justice under RPC 8.4(d), because it impedes a litigant's effective access to counsel of choice. The opinion states that the practice should cease immediately.

In practice

The opinion holds that, under RPC 8.4(d) as it stood at the time, a lawyer who advises a client to make pretextual contacts with other lawyers in order to disqualify them from representing the adversary engages in conduct prejudicial to the administration of justice, because the maneuver impedes the opposing party's access to counsel of choice. Per the opinion, the violation lies in the advice itself, and the practice should cease immediately. Because this opinion predates the most recent five years, verify the current Rules of Professional Conduct before relying on the specific rule text it describes.

Common questions

Q: Is it ethical to "conflict out" the other side by having my client interview their likely lawyers?

A: No. The opinion concludes that advising a client to contact lawyers on a pretextual basis to disqualify potential adversary counsel is conduct prejudicial to the administration of justice under RPC 8.4(d).

Q: Which rule does this practice violate?

A: RPC 8.4(d). The opinion states that the advice impedes a litigant's effective access to counsel of choice and should cease immediately.

Q: Does the opinion limit itself to matrimonial cases?

A: The inquirer's example involved matrimonial matters, but the opinion's holding is stated as a general rule that such advice plainly constitutes prohibited conduct under RPC 8.4(d).

Background and rules framework

The opinion interprets RPC 8.4(d), the New Jersey analog to Model Rule 8.4(d), which makes it professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice. The Committee applies that rule to the tactic of advising a client to manufacture pretextual lawyer contacts so that opposing parties cannot retain those lawyers.

Citations and references

Rules of Professional Conduct:

  • MR 8.4(d) / NJ RPC 8.4(d) (conduct prejudicial to the administration of justice)

See also

Source

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

184 N.J.L.J. 315

April 24, 2006

15 N.J.L. 899

April 24, 2006

Advisory Committee on Professional Ethics

Appointed by the Supreme Court of New Jersey

Opinion 703

Advisory Committee on Professional Ethics

Conduct Prejudicial to the Administration of Justice: Contacting Lawyers for Representation on Pretextual Basis to Disqualify Potential Adversary Counsel

An inquirer raised concern about a practice under which a client was advised to contact other lawyers for representation essentially on a pretextual basis, in order to disqualify those lawyers from representation of an adversary. The example given involved matrimonial cases. It appears that a lawyer or firm engaged to represent the party may be advising clients to take this step in order to disqualify potential adversary counsel.

The inquirer asks whether such a practice by a firm would run afoul of the Rules of Professional Conduct. It is the opinion of the Committee that any such advice by a lawyer to a client plainly would constitute prohibited conduct prejudicial to the administration of justice under RPC 8.4(d), in that it would impede a litigant's effective access to counsel of choice, and should cease immediately.

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