NJ Lawyer Magazine - New Jersey State Bar Association

In this Issue: Solo Practice
FEATURES
Financial Dealings with Clients 5
by Alice M. Plastoris
SOLO
PRACTICE
FINANCIAL DEALINGS WITH CLIENTS
STARTING A LAW FIRM LATER IN LIFE
TEN TIPS LEARNED THE HARD WAY
THE BONA FIDE OFFICE RULE
FINDING THE BALANCE
Attorney Ethics: Considerations for the Solo 11
by Brian J. Fruehling
Starting a Law Firm Later in Life 13
by Mary Jane Leland
Finding the Balance: A Solo’s Tale 16
by Susan Schleck Kleiner
Starting a Solo Practice Soon Out of Law School 20
by Kristen A. Perry
Transitioning From Law Firm Associate to Solo Practitioner 22
by Jeffrey J. Brookner
Successful Planning: The Key to a Successful Practice 25
by Robert W. McAndrew
Ten Tips Learned the Hard Way 27
by Jacob V. Hudnut
The Bona Fide Office Rule: Will Virtual Offices Be Allowed? 30
by Craig M. Aronow, David B. Rubin and David H. Dugan III
Mentor Programs: A Safety Net for Solos 35
by Mitchell H. Cobert
Social Networking Websites for Business and Exposure 39
by Kenneth A. Vercammen
Enhance Your Solo or Small-Firm Practice
With Your New Jersey State Bar Association Membership 43
by Richard H. Steen
A Local County Bar Association Can Help
Fill in the Gaps in Your Solo Practice 45
by Nancy M. Bangiola
In Pursuit of Professionalism Among Business Lawyers 47
by Gianfranco A. Pietrafesa
DEPARTMENTS
PRESIDENT’S PERSPECTIVE 2
MESSAGE FROM THE SPECIAL EDITOR 4

PRESIDENT’S PERSPECTIVE
KEVIN P. MCCANN
Enhancing the Value of Membership
Ibecame a member of the New Jersey
State Bar Association in 1975,
as soon as I graduated law school.
Initially, my decision to join the
statewide organization was somewhat
of a knee-jerk reaction—as a
newly minted attorney, it just seemed like
the right thing to do. But I quickly realized
just how valuable membership in
the NJSBA can be, whether you are new to the legal profession
or a seasoned professional, whether you practice as a solo or as
a member of a large firm.
The benefits of membership in the NJSBA run the gamut,
and have grown considerably in the three decades since I first
signed up. A complete listing of everything available to members,
from discounts on continuing legal education programs,
legal research and insurance to office management and marketing
guidance, as well as invaluable networking opportunities,
can be found on the state bar website, at www.njsba.com.
As I begin my term as president of the NJSBA, my goal for
the coming year is to work toward making the association
even more valuable to the membership tomorrow than it is
today. My attention will be focused in two areas: ensuring the
state bar remains the leading voice of the profession in Trenton
and enhancing public awareness of the legal profession
and legal system through public service and civics education.
One of the most important roles the NJSBA plays for its
members is serving as the voice of the profession in Trenton.
Our members have testified on hundreds of bills, and our inhouse
lobbying efforts have garnered national awards. We
also have an extremely strong amicus effort. In the months
ahead, we will continue fighting for legislation that matters
most to lawyers. That work includes securing passage of the
professional malpractice legislation that would benefit all
lawyers by reducing the statute of limitations on legal malpractice
claims from six to two years and the attorneys’ fee
requirement. The change will not only bring New Jersey in
line with other states, but will put the legal community on par
with other professions. In addition, efforts should be made to
ensure the finality of decisions by administrative law judges,
who deserve tenure and the protections of an independent
Judiciary.
Our outreach efforts will not just be about evaluating legislation
and advocating our position, they will also be about
building lasting relationships. That’s just what we expect to
happen at our upcoming town hall meeting. It’s an event that
brings together Trenton insiders with our members to develop
new ways for the association to foster change on behalf of
the legal profession and the public.
And this fall, we will hold an NJSBA Day in Trenton, giving
our members a chance to meet one-on-one with politicians,
government officials and lobbyists so we can highlight the
legislative goals of the association, as well as the value we can
bring to the decision-making process which began at the
Annual Meeting in Atlantic City.
I am also pleased to announce a new partnership between
the NJSBA and the New Jersey Judiciary to foster a better public
understanding of civics and the essential role the courts
play in a vibrant democracy. The program is called the Benchmarks
Civics Project, and I would like to extend a special
thank-you to Chief Justice Stuart Rabner and Judge Glenn A.
Grant for their efforts in making it possible.
The Benchmarks Civics Project aims to inform the public
about the way the courts work; what it means to be a citizen;
and the importance of an independent, fair and impartial justice
system. It is easy for us to take these points for granted.
They are, after all, how we spend our days and earn our livelihood.
But they are fundamental values, and it is essential to
our mission to ensure the public fully understands their
importance.
Through the project, lawyers will receive professionalism
continuing legal education credits (CLEs) when they attend a
training session about speaking on civics issues to community
groups. Once trained, attorneys who go out and speak with
2 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

groups can earn additional professionalism
CLE credits.
We are one of only a handful of
states, including Florida, New Hampshire
and Colorado, to start such a program.
It marks one more way New Jersey’s
Judiciary and legal community are
on the cutting edge, and presents a special
opportunity for all of us to get more
involved in our communities and foster
a better understanding of the important
role lawyers and the court system play
in our society.
I look forward to a successful year
working together to improve the practice
of law in New Jersey, for the NJSBA
membership as well as our clients and
the general public.
WWW.NJSBA.COM NEW JERSEY LAWYER | June 2012 3

MESSAGE FROM THE SPECIAL EDITOR
STAFF
Angela C. Scheck Publisher
Cheryl Baisden
Janet Gallo
Paula Portner
Managing Editor
Graphic Designer
Display Advertising
EDITORIAL BOARD
James J. Ferrelli
Michael F. Schaff
Senwan Akhtar
Mitchell H. Cobert
John C. Connell
Angela Foster
Mimi Huang
Susan R. Kaplan
Brian R. Lehrer
Robert Olejar
Asaad Siddiqi
Susan Storch
Susan Stryker
Lisa Trembly
Chair
Vice Chair
NJSBA EXECUTIVE COMMITTEE
Kevin P. McCann President
Ralph J. Lamparello President-Elect
Paris P. Eliades First Vice President
Miles S. Winder III Second Vice President
Angela W. Dalton Treasurer
Thomas Hoff Prol Secretary
Susan A. Feeney Immediate Past President
New Jersey Lawyer Magazine (ISSN-0195-0983) is published six
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So you want to be a solo
practitioner. Or maybe you
were gently pushed in that
direction. Either way, you’re
in good company: Over 40
percent of all attorneys in
New Jersey are with one- and
two-lawyer firms.
The collection of articles
in this issue of New Jersey
Lawyer Magazine was
compiled to let you
know there are others
out there who have
dealt with the same challenges you face,
and are willing to help you establish and
fine-tune your practice.
Our thanks to the authors, all solo or
very small-firm practitioners, who have
taken precious time from their busy
schedules to share helpful hints, practical
advice, and their personal experiences.
Special thanks also goes to the
solo practice committee of the New Jersey
State Bar Association and its chair,
Craig Aronow, for helping to put this
issue together.
Alice Plastoris has written a practical
guide to important business and ethical
considerations affecting all solos. Brian
Fruehling identifies applicable RPCs we
need to be aware of, and provides advice
on how to identify and avoid ethics
complaints.
Mary Jane LeLand, Susan Kleiner,
Kristen Perry and Jeff Brookner eloquently
share their personal experiences,
allowing us to relive, with them,
the sacrifices they made to practice law
while balancing the pressures of their
personal lives. They remind us how hard
it is to be a solo, but also how rewarding
it can be when we persevere.
Solos will
also benefit
from the perceptive
advice
of Bob McAndrew,
who
explains why
it is important
to plan ahead
MITCHELL H. COBERT
and be organized.
Learning from other’s mistakes is
Jacob Hudnut’s valuable message.
One article that must be read by all
solos was written by Craig Aronow,
David Rubin and David Duggan on the
bona fide office rule. The proposed rules
have serious ramifications for every solo
practitioner.
Focused on helping attorneys at all
levels hone their skills, we also have an
article on the value of mentoring programs.
Of note, six states now have
mandatory mentor programs and seven
other states allow mandatory continuing
legal education (MCLE) credit to
mentors and mentees who participate. It
may be time for New Jersey to consider
granting MCLE credit for mentoring.
The article by Ken Vercammen is
important as a reference to websites on
the Internet that lawyers can utilize for
business generation, research and exposure.
And last, but certainly not least,
we provide two articles highlighting
the networking, referral, and social
benefits of joining the New Jersey State
Bar Association and your county bar
association.
Mitchell H. Cobert is a solo practitioner
in Morristown with an emphasis on securities
law. He is a past president of the Morris
County Bar Association and a member of
the New Jersey Lawyer Magazine Editorial
Board.
4 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

Financial Dealings with Clients
by Alice M. Plastoris
The practice of law, no matter how noble an
endeavor, is still a business, and the goal of
any business is to be profitable. Lawyers,
whether sole proprietors or in a firm, are
entitled to be and should be compensated
for the services they provide. In order for
that to happen, lawyers should, within the
confines of the ethics rules and court rules,
use good business sense and practices in
running their practice, and in their financial
dealings with clients.
After determining who or what is the target
client base and obtaining that business,
there are certain business practices that
must be in place to govern how clients
retain the lawyer, and how the lawyer will
get paid during the representation and after
the representation has concluded. In order to accomplish this,
the lawyer should address the following points: 1) retainer
agreements and determining the scope of the representation;
2) the method of payment including credit cards; and 3) collecting
his or her fees for services rendered.
Disclosure and the Initial Consultation
RPC 1.4(b) requires an attorney to provide the client with
enough information reasonably necessary to permit them to
make informed decisions regarding the representation. The
attorney must discuss this with the client during the initial consultation,
addressing issues including the fee arrangement and
scope of the representation. If the lawyer decides to decline the
representation, it should be addressed in writing to the client. 1
Scope of the Representation
Once the lawyer has met with the client and determined
who the client is, the type of legal matter and what services are
to be performed, the lawyer and the client must agree upon
the scope and objectives of the representation. RPC 1.2(a) provides
that a lawyer shall abide by the client’s decision concerning
the scope and objectives of the representation. A lawyer
may limit the scope of the representation if doing so is reasonable
under the circumstances, and the client gives consent. 2
Any limitation should be thoroughly discussed with the
client and set forth in the retainer agreement. 3 For example, in
the Laufer case the attorney limited the representation to the
drafting of the marital settlement agreement in a divorce
based on the representations of the client. 4
Retainer Agreements
At the outset of an attorney-client relationship, the attorney
should provide the client with a written retainer agreement
to be signed by the client and the attorney. 5 This document
benefits both the client and the lawyer by setting forth
the scope of the representation, the services to be provided,
and the type of fees to be charged. The retainer agreement
will govern the expectations and duties of both parties to the
agreement. It also serves as a basis of the contract for services
to be rendered and the payment by the client for those
services. The retainer agreement should clearly set forth the
scope of the representation, including the services to be rendered,
the services not being rendered and the type of fees
and costs to be charged. 6
The fees charged to the client must be reasonable. 7 The
type of fee arrangement and the amount of the fee must be
reasonable. The factors to be considered in determining reasonableness
are set forth in RPC 1.5. 8
Depending on the type of matter, the fee arrangement may
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NEW JERSEY LAWYER | June 2012 5

vary. A lawyer may charge an initial
consultation fee. 9 In general, the types
of fee arrangements are as follows:
1. contingency fee;
2. hourly rate;
3. flat fee; or
4. hybrid of hourly fee or flat fee and
contingency fee.
RPC 1.5(h) simply requires a written
fee agreement with the client when a
lawyer has not regularly represented the
client. However, it is prudent business
practice to have a written fee agreement
with a client for every representation.
Contingency Fee
A written fee agreement is mandatory
in contingency fee cases 10 and in civil
family actions. 11 RPC 1.5(c) provides the
requirements of a contingency fee
arrangement with a client that must be
followed. Contingency fee arrangements
are not allowed in civil family
actions or criminal cases. 12 Contingent
fees pursuant to Rule 1:21-7 in civil
family actions are only permitted
regarding claims based on tortuous conduct
of another, and shall have a separate
fee agreement. 13
A contingency fee arrangement must
contain the percentages for compensation
to the attorney. 14 It must state the
method by which the fee is to be determined
and other expenses to be deducted
from the recovery to be paid to the
lawyer. 15 Upon the conclusion of the
contingent fee matter, the lawyer shall
provide the client with a written statement
stating the outcome of the matter,
and if there is a recovery, showing the
remittance to the client and the method
of its determination. 16
Fee Sharing
In general, fee sharing with another
lawyer not in the same firm is prohibited.
RPC 1.5(e) governs fee sharing
between lawyers not in the same law
1. a description of the legal services to
firm. Fee sharing is permitted only if all
The retainer agreement must include: 22 lawyer’s liability to the client for malof
the following factors are met: 1) the be provided;
division of the fee is proportionate to
the services performed by each attorney;
2) the client is notified in writing of the
fee division; 3) the client consents; and
4) the total fee is reasonable. 17
2. a description of legal services not
encompassed by the agreement, such
as real estate transactions, municipal
court, tort claims, appeals, domestic
violence proceedings, etc.
Independence of Lawyer
3. the method by which the fee will be
computed;
In today’s economy, more and more
parents are paying for the legal fees of
4. the amount of the initial retainer
and how it will be applied;
their children. In those circumstances,
please keep in mind that the third party
paying the legal fees is not the client,
and should not control the representation.
5. when bills are rendered, which shall
be no less frequently than once
every 90 days, provided services are
rendered within the period; 23
The duty is to the client, and the
attorney-client privilege applies solely
to the client. RPC 5.4 governs the professional
6. the name of the primary attorney
having responsibility for the representation
and hourly rate;
independence of a lawyer. A
lawyer shall not permit a person who
recommends, employs or pays for legal
7. whether and in what manner the
initial retainer is required to be
replenished;
services for another to direct or regulate 8. when payments are to be made;
the lawyer’s professional judgment in
rendering legal services. 18 However, as a
9. whether interest will be charged,
including the rate;
practical matter, the third party agreeing
to pay the legal fees should execute the
retainer agreement as the guarantor, in
addition to the actual client.
10. statement of expenses and disbursements
for which the client is responsible
and how they will be billed;
11. the effect of counsel fees awarded on
application to the court pursuant to
Costs
A retainer agreement should also set
forth what costs and out-of-pocket
Rule 5:3-5(c) and Rule 4:42-9;
12. the availability of complementary
dispute resolution (CDR) programs.
expenses the client will be responsible
for paying during the representation.
The costs charged should be reasonable
and necessary. 19
Limitations on Retainer Agreements
As previously stated, contingency
fees are prohibited in criminal and family
actions. The court rules also prohibit
Civil Family Actions
Retainer agreements in civil family
actions are specifically governed by Rule
5:3-5. Every agreement for legal services
must be in writing and signed by both
the attorney and the client. The client
must receive a fully executed copy. 20
The retainer agreement must have
annexed to it the Statement of Clients
Rights and Responsibilities signed by the
client, in the form appearing in Appendix
XVIII of the court rules. 21
a lawyer from holding a security interest
or mortgage or other lien on the client’s
property interest to insure payment of
fees during the representation. 24 A
lawyer may take a security interest in
the property of a former client after the
conclusion of the matter, in accordance
with RPC 1.8(c). 25
In a civil family action, the retainer
agreement shall not include a provision
for a non-refundable retainer. 26
A lawyer also shall not limit the
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practice in the retainer agreement. 27
A lawyer shall not acquire a proprietary
interest in the cause of action or
subject matter of the litigation the lawyer
is conducting for the client, except: 28
1. a lien granted by law to secure a
lawyer’s fee and expenses; or 29
2. a contract for a reasonable contingency
fee. 30
Award of Counsel Fees
In certain instances, the court may
award counsel fees to a party. 31 A retainer
agreement should provide that even if
fees are awarded by the court to be paid
by another party to the litigation, the
client is still responsible for payment of
the attorney’s fees for services rendered
to them by the lawyer or law firm, unless
the matter is a contingency fee case or
other arrangements are made with the
client regarding the attorney fee award.
Withdrawing From Representation
A retainer agreement should also
advise the client of all reasons why a
lawyer may withdraw from the representation
of the client. 32 A lawyer may
withdraw either by consent of the client
or by requesting permission from the
court, if litigation is pending, and for
the following reasons:
1. the client insists the lawyer do something
illegal;
2. the client does not follow the
lawyer’s advice;
3. the client does not answer telephone
calls or letters;
4. the client does not cooperate;
5. the client tells a lie under oath or tells
the lawyer the client will do so;
6. the client fails to pay for legal services
on time; or
7. for other good or valid reasons.
If litigation is not pending, a lawyer
may withdraw upon notice to the client
for any of the reasons stated above.
Method of Payment
In running a practice or law firm, a
lawyer must determine the method of
payment to be accepted from clients. Of
course the most obvious method of payment
from a client is cash or check. When
receiving payments from clients, a lawyer
must abide by Rule 1:21-6 regarding bookkeeping
records for their business and
trust accounts. A lawyer is also required to
retain these records for seven years after
the event or representation, including
copies of all retainer agreements, client
statements and bills rendered. 33
Many lawyers and law firms accept
credit cards such as Visa, MasterCard,
American Express and Discover card. In
order to accept credit cards, the lawyer
must enter into a merchant services
agreement with a bank or other merchant
services provider. The fees for accepting
credit cards vary depending on the institution
providing the service and the type
of card being accepted. For example, Visa
and MasterCard fees are typically one to
1.5 percent of the charged amount, but
American Express can be as high as three
percent or more. A lawyer or law firm
must also decide whether to purchase the
credit card machine or lease it.
Accepting credit cards improves cash
flow, and many times can insure payment.
It also lessens the risk of having
the lawyer’s fees discharged in bankruptcy
because the lawyer has already
been paid, so the client will list the credit
card in the bankruptcy. When sending
statements and bills to the client,
include a form advising that the firm
accepts credit card payments, and provide
a space for the client to fill in the
credit card information to pay the bill.
The fees associated with the credit
card charges to the merchant services
provider are essentially bank charges,
and deductible business expenses. The
minimal processing cost to the lawyer of
accepting credit cards is far outweighed
by the dual benefits of improved cash
flow into the business and ensuring payment
by the client.
A lawyer must also decide whether
the credit card charges will be electronically
deposited into their business
account, trust account or a combination
of both, when setting up the merchant
services account. This will depend on
the type of transactions anticipated, and
the cost to acquire the equipment.
Many merchant services companies
only lease equipment, or require there
be a separate machine for each account.
Diligent inquiry and negotiation is prudent
when embarking on the merchant
services adventure.
There is, however, a serious pitfall to be
considered when accepting credit cards.
Lawyers should be aware that the consumer
has the right to dispute the transaction
or report a fraudulent use of the credit
card (even when there is none). For
example, a client charges a retainer or
makes a payment and then becomes
unhappy and does not want to pay the
attorney’s fees, so they dispute the charge
with Visa. If this happens, the merchant
services company will take the funds from
the account where they were deposited.
The credit will occur prior to receiving
written notice of the dispute, which
arrives in the mail approximately 14 days
later. In the meantime, the bank account
and cash flow is seriously disrupted. If the
deposit was made to the attorney trust
account and already disbursed, this can
cause a serious problem for the lawyer.
An even more serious problem occurs
more frequently in civil family actions,
where the parties have a joint credit card.
For example, one spouse charges the
retainer for legal fees to the joint credit
card. The other spouse notifies the credit
card company that the transaction with
the law firm was “fraudulent.” This situation
initially is a nightmare, especially if
the funds were deposited into the
lawyer’s trust account. Because the transaction
is reported as fraudulent, the merchant
services company will put a hold
on all charge transactions to your firm,
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even if the other charge transactions are
undisputed payments made by other
clients. The result is major cash flow disruption,
bounced checks because the
funds are removed from the bank
account and credits given to other clients
for payments made are put on hold
because you have not received the funds.
This hold under the merchant services
agreement can last as long as 364 days.
If this happens, the following steps
must be taken:
1. Immediately respond in writing to the
merchant services company with a
copy of the retainer agreement,
invoice for services rendered and
signed receipt by the client (the
authorized joint card holder), and
explain the representation and providing
of services to the client.
2. Immediately notify the client that
made the payment with the credit
card, requesting they contact the
credit card company and advising
that the payment will not be credited
to the retainer or outstanding balance
owed.
3. If there is a court order requiring the
payment of fees, provide a copy of
the order.
4. Make an application to the court to
compel payment and withdrawal of
the fraud charge. If the fraud charge is
made by the other spouse or other
cardholder, ask the court to require
that party to pay all damages incurred
(i.e., bank charges) and compel that
the party takes all steps to withdraw
the fraud complaint immediately and
remove the hold on the merchant
services account and restore all funds.
Then send this order to the merchant
services company.
It is very important, when accepting
credit cards, to have a signed retainer
agreement with each client, and to keep
all bills, statements and signed receipts
by the client.
Getting Paid
Ensuring an attorney will get paid for
providing legal services to clients begins
at the outset of the representation. First,
discuss the representation and the
responsibility of the client to pay for
services rendered. Second, prepare a
retainer agreement, review it with the
client, and have it executed; having a
signed retainer agreement is the bedrock
of getting paid. Also, send regular bills
to the client for services rendered, and
regularly communicate with the client
regarding the fees that are due to avoid
carrying a large receivable, resulting in
the need to sue the client later.
In contingency cases, an attorney
assumes some risk because the outcome
of the case determines the compensation
for the lawyer. So upon the initial
meeting with the client, garner enough
information to determine the merits of
the case and the likelihood of success
and getting paid.
An attorney must also be aware of
actions in which a fee is allowable,
which are governed by Rule 4:42-9.
Attorney fees may be awarded in the following
types of matters:
1. family actions; 34
2. out of a fund in court;
3. in a probate action;
4. in an action for the foreclosure of a
mortgage;
5. in an action to foreclose a tax certificate(s);
6. in an action upon a liability or
indemnity policy of insurance in
favor of a successful claimant;
7. as expressly provided by these rules
with respect to any action; and
8. in all cases where attorney’s fees are
permitted by statute.
In all application for fees pursuant to
Rule 4:42-9 or other rule or statute, a
lawyer must submit an affidavit of services
that complies with Rule 4:42-9(b)
and (c) and in family actions with Rule
5:3-5. The fees must also be reasonable
pursuant to RPC 1.5, and the affidavit
must set forth the requirements contained
in RPC 1.5(a).
Attorney Charging Lien
Once a representation has terminated,
an attorney is entitled to an attorney
lien for services rendered. Pursuant to
N.J.S.A. 2A:13-5 and 2A:13-6, an attorney
is entitled to a lien for services rendered
in the action. The lien attaches to
any proceeds or property received by
the client by way of settlement, judgment,
decision or final order. Notice
should be given by the attorney of the
lien and the amount sought to the
client, successor counsel, if any, and
opposing counsel. In many instances, a
motion should be filed with the court to
perfect the lien. Any application for a
lien must comply with Rule 1:20A-6
(pre-action notice).
Collection of Fees
Before a lawyer can sue a client for
fees owed for services rendered, Rule
1:20A-6 requires that the client be
served with a pre-action notice.
Rule 1:20A-6 provides as follows:
No lawsuit to recover fees may be filed
until the expiration of the 30 day period
herein giving Pre-Action Notice to
the client; however, this shall not prevent
a lawyer from instituting an ancillary
legal action. Pre-Action Notice
shall be given in writing, which shall
be sent by certified and regular mail to
the last known address of the client,
or, alternatively, hand delivered to the
client...
The notice must also contain the
name and address of the current secretary
of the fee committee in the district
where the lawyer maintains an office. 35
The notice must specifically advise the
client of the right to request fee arbitration
within 30 days; if the client does
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not promptly do so, he or she will lose
the right to initiate fee arbitration. 36 If
the client does not request fee arbitration,
and the lawyer files a collection
suit against the client for fees, the complaint
must allege giving the pre-action
notice to the client or be dismissed. 37
A collection complaint against a
client should contain a separate count
based on contract, book account, quantum
meruit and reasonable value of services.
The complaint should allege and
attach the retainer agreement signed by
the client and attorney, the pre-action
notice with proof of service and the
statements sent to the client for services
rendered and the failure of the client to
make payment. Depending on the
amount of fees owed, the complaint
should be filed in either the New Jersey
Superior Court, Law Division or Special
Civil Part.
Fee Arbitration
Rule 1:20A-3 governs fee arbitration
proceedings with the client. If a collection
action has been filed or a fee hearing
ordered on an attorney lien application,
the filing of a fee arbitration by the
client stays the collection proceedings
until there is a fee determination. 38 The
lawyer has the obligation to notify the
court of the stay pending the outcome
of the fee arbitration.
Fee arbitration determinations are
binding on the client and the attorney,
and once the proceedings have commenced
it is the sole forum to determine
the reasonableness of the fee. 39 All
fee arbitration proceedings are confidential.
40 There are limited grounds for
appeal of a fee arbitration award. All
appeals are made to the Disciplinary
Review Board. 41 No court has jurisdiction
to review the fee arbitration determination.
42
Rule 1:20A-3(e) governs the enforcement
of a fee arbitration award. If the
fee determination by the committee is
not paid within 30 days, the amount
may be entered as a judgment in the
collection suit (that was stayed) or by a
summary action pursuant to Rule 4:67
to obtain a judgment in the amount of
the fee award.
If the court in the underlying action
entered an order for the attorney charging
lien, then the order to show cause
for entry of a judgment in the amount
of the fee award should be filed with
that court in a summary fashion. If a
collection action was filed and stayed by
the fee arbitration, a motion for summary
judgment should be filed in the collection
suit to enter judgment. If no
prior proceedings were filed and stayed
by the fee arbitration, then a summary
action by way of order to show cause
and complaint pursuant to Rule 4:67
should be filed with the court to enter
judgment in the amount of the award.
Once judgment has been entered, it
should be docketed with the New Jersey
Superior Court in Trenton as a statewide
lien/judgment, and the attorney should
utilize all remedies to collect the judgment,
such as a writ of execution on
assets or wage garnishment, to name
two. 43 Once the judgment is entered,
post-judgment interest will accrue on
the amount owed until paid. 44
When the judgment is paid by the
client, a warrant to satisfy the judgment
must be provided by the lawyer.
Endnotes
1. RPC 1.16.
2. RPC 1.2(c).
3. Lerner v. Laufer, 359 N.J. Super. 201
(App. Div. 2003), certif. denied, 177
N.J. 233 (2003).
4. Id.
5. RPC 1.5; R. 5:3-5; R. 1:21-7.
6. Lerner, 359 N.J. Super. 201 (App.
Div. 2003), certif. denied, 177 N.J.
233 (2003).
7. RPC 1.5.
8. RPC 1.5(a) A lawyer’s fee shall be
reasonable. The factors to be considered
in determining the reasonableness
of a fee include the following:
1) the time and labor required, the
novelty and difficulty of the
questions involved, and the skill
requisite to perform the legal
services properly;
2) the likelihood, if apparent to the
client, that the acceptance of a
particular employment will preclude
other employment by the
lawyer;
3) the fee customarily charged in the
locality for similar legal services;
4) the amount involved and the
results obtained;
5) the time limitations imposed by
the client or by the circumstances;
6) the nature and length of the professional
relationship with the
client;
7) the experience, reputation, and
ability of the lawyer or lawyers
performing the services;
8) whether the fee is fixed or contingent.
9. RPC 7.1(a)(4)(i).
10. RPC 1.5; R. 1:21-7.
11. R. 5:3-5.
12. RPC 1.5(d).
13. R. 1:21-7.
14. R. 1:21-7(c).
15. RPC 1.5(c).
16. RPC 1.5(c).
17. RPC 1.5(e).
18. RPC 5.4.
19. R. 4:42-8.
20. R. 5:3-5(a).
21. Sylvia Pressler and Peter Verniero,
Current N.J. Court Rules (Gann
2011), Appendix XVIII, p 2601.
22. R. 5:3-5(a)(1) through (10).
23. This is a good practice for any hourly
rate retention when providing legal
services. It allows the client to see the
services rendered, the costs and
expenses incurred and increases regular
cash flow to the lawyer.
24. RPC 1.8; R. 5:3-5(b).
25. R. 5:3-5(b).
26. R. 5:3-5(b).
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27. RPC 1.8(h).
28. RPC 1.8(i).
29. N.J.S.A. 2A:13-5 and 2A:13-6.
30. RPC 1.5.
31. R. 4:42-9; R.5:3-5(c).
32. RPC 1.16; R. 5:3-5.
33. R. 1:21-6(c).
34. R. 5:3-5(c).
35. R. 1:20A-6.
36. R. 1:20A-6.
37. R. 1:20A-6.
38. R. 1:20A-3(a).
39. R. 1:20A-3.
40. R. 1:20A-5.
41. R. 1:20A-3(d).
42. R. 1:20A-3(e).
43. R. 4:56.
44. R. 4:42-11.
Alice M. Plastoris is a sole practitioner
in Morristown, primarily practicing matrimonial
and family law, municipal court
and chancery practice, including foreclosure
defense and estate litigation. She is a current
member of the District X Fee Arbitration
Committee and former member of the
District X Ethics Committee.
10 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

Attorney Ethics
Considerations for the Solo
by Brian J. Fruehling
For many newly minted attorneys, or those
attorneys who have left large firms and
recently hung out their own shingle, dealing
directly with clients can present certain
challenges. The newly solo or small-firm
practitioner must be vigilant in complying
with attorney ethics requirements, and would
be well served to spend some time reviewing
the Rules of Professional Conduct (RPCs).
Particular attention should be given to the
rules governing client communications.
At large law firms, often there is a buffer or
bureaucracy separating the young attorney
from the client. The large law firm typically
has a partner in charge of a ‘client matter.’
In fact, in some instances the associate attorney
never meets or even speaks with the
client. The associate might report to a junior partner, who in
turn reports to a senior partner, for example. In a large firm,
therefore, the responsibility for maintaining client communication
and satisfaction rests not with the associate attorney
but with those higher up in the law firm.
Associate attorneys who only remain at large firms for one
or two years, probably will not have had the opportunity to
master the skill of dealing directly with clients in a lawyerly
manner. As a result, the associate attorney is likely not well
equipped to handle client needs and demands. Similarly, the
recently admitted solo practitioner may lack experience in
dealing directly with clients. Therefore, inexperienced newly
solo or small-firm attorneys would be well advised to seek
mentoring from seasoned practitioners, whether it be in the
form of attending seminars or simply contacting their senior
brethren by telephone, or through other informal settings, to
discuss office concerns.
All attorneys, regardless of their level of experience, must be
aware of and comply with the Rules of Professional Responsibility
governing the bar of New Jersey, and should read and
periodically review the RPCs. Lawyers are presumed to know
the RPCs, advisory opinions issued by the New Jersey Supreme
Court’s Committee on Advisory Opinions, ethics opinions
applying the RPCs, and the Rules of Court. Intent to violate an
ethics rule, except for very limited circumstances, is not a prerequisite
to the finding of an ethics breach. In other words,
ignorance of the RPCs is not a defense to an ethics violation.
Client Communication Under RPC 1.4
Of particular importance in the handling of client communications
is RPC 1.4, which requires all attorneys to: (a) fully
inform a prospective client of how, when and where the client
may communicate with the lawyer; (b) keep a client reasonably
informed about the status of a matter and promptly comply
with reasonable requests for information; (c) explain a matter
to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation; and (d) when
a lawyer knows a client expects assistance not permitted by the
Rules of Professional Conduct or other law, advise the client of
the relevant limitations on the lawyer’s conduct.
Compliance with RPC 1.4 by the solo practitioner is not
just an ethics requirement; it can be an excellent tool in creating
a rewarding relationship with clients. As contemplated
by RPC 1.4, setting reasonable goals and expectations with
the client from the outset will pay dividends in the long haul.
At the initial client conference, after assessing the facts of
the case and determining whether a valid cause of action
exists, the attorney should clearly and openly “explain a matter
to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.” 1 The
attorney should then educate the client about the ‘reasonable
expectations’ of the case.
The following are some tips to keep the assessment and
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NEW JERSEY LAWYER | June 2012 11

objectives of the representation on
point and within the understanding of
the client:
• Educate the client generally about
the law as it applies to the facts of his
or her case, even if the client is savvy
and appears to already understand
the process.
• Explain the attorney’s role in the client
matter, so the client’s expectations of
the attorney’s representation in the
matter are reasonable, including the
billing structure, and the manner and
expected frequency of communications
between attorney and client.
• Explain the process, including the
likely timeframe, legal procedures,
motions expected, and anticipated
limitations on what the attorney can
achieve in the case. Do not sugar-coat
the matter or over-promise what can
be gained by virtue of the lawsuit.
Overall, good communications will
serve the solo practitioner well in running
a successful law practice. Clients
expect their attorneys to be very responsive
to telephone calls and emails, and
otherwise require constant communication
and updates about their legal matters.
As long as the client’s requests for
information are reasonable, the lawyer
is obligated to keep the lines of communication
open and respond to the
client’s requests according to RPC 1.4.
Getting it in Writing
For clients new to the firm, a written
legal services agreement must be made,
as required under RPC 1.5(b). The solo
practitioner should explain to the client
in the legal services agreement, exactly
what services the attorney will perform,
terms of payment, treatment of retainer
funds, and the client’s responsibilities to
the attorney during the representation
period. If the matter is a contingency fee
case, compliance with Rule 1:21-7 is also
mandatory. All retainers in matrimonial
matters must be in writing, as required
by Rule 5:3-5(a).
In any event, the fee agreement must
be fair and, “may not provide for an
unreasonable fee or any other unreasonable
waiver of the client’s rights.” 2 Handling
of client retainer funds must be
treated in accordance with the terms of
the legal services agreement. 3 The
retainer funds must be earned before
they are paid over to the attorney, 4 and
RPC 1.16(d) requires that upon termination
of representation the lawyer must
refund any advance payment of fees
that have not been earned.
Within the legal services agreement,
the solo practitioner should advise the
client when he or she will receive
updates on their billing status. In certain
matters, it would be appropriate for the
attorney to provide monthly statements
of account, keeping the client constantly
aware of their financial status with the
attorney. If a client is regularly updated
on their account, the element of surprise
and dissatisfaction with progress on
their case can be averted. A client who
regularly receives detailed legal invoices
from his or her attorney will not only be
aware of the costs associated with the
representation, but will have (by virtue
of the detailed invoice) a written report
of everything the attorney has done.
In the event a client makes excessive
and unreasonable demands for information
about their file, the attorney should
confront the client about the problem
without delay. Attorneys will rarely have
to address this issue (e.g., excessive or
daily calls about a case that is not at the
trial level, for example) if they initially
explain the frequency with which clients
should expect to be updated. If the client
is regularly updated, the instances of
client unhappiness will likely be minimal.
The client’s overall satisfaction with
the attorney is often not based on the
outcome of the matter, but on whether
he or she believes the attorney has
worked hard on the case and kept the
client’s best interests as the focal point
of the representation. Typically, the
client will be satisfied if he or she
believes in the attorney’s commitment
to the case and if the attorney has been
updating the client on a regular basis,
thereby alleviating any surprises or
problems the client was not expecting.
This all leads back to great communications
between attorney and client.
Conclusion
Year after year, the majority of ethics
complaints are based on attorneys’ failing
to adequately communicate with
clients. A majority of these ethics grievances
are filed against solo practitioners
or small law firms, possibly because solo
practitioners and small firms often
engage in the type of practice areas ripe
for complaints, such as divorce, real
estate and general practice work.
Fortunately, there is a ready solution
for the newly solo practitioner and
small-firm lawyer: Complying with RPC
1.4, educating the client about their
legal position, managing the client’s
expectations about legal proceedings
and potential outcomes, and providing
the client with a sufficiently detailed
legal services agreement whereby the
client is updated regularly, will serve
both the attorney and the client well.
Endnotes
1. RPC 1.4(c).
2. Cohen v. Radio-Electronics Officers,
146 N.J. 140,156 (1996).
3. In re Stern, 92 N.J. 611, 619 (1983);
In re Youmans, 118 N.J. 622, 636
(1990).
4. In re Spagnoli, 115 N.J. 504, 516
(1989).
Brian J. Fruehling is a solo practitioner
in Madison, former chair of the District X
Ethics Committee, and handles employment,
commercial and personal injury litigation.
He also represents attorneys in
ethics cases.
12 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

Starting a Law Firm Later in Life
by Mary Jane Leland
I was 50-something when I told a friend I had decided to go to law school. Her response,
which I have to say I understood, was: “Don’t you think that would have been a better idea
when you were 25?” But I only discovered my passion for the law after working for the
New Jersey Juvenile Justice Commission. There were no obligations to hold me back:
My children were self-sufficient adults; my parents had passed away and I felt compelled to
pursue the law. There was simply no reason not to go to law school.
Leasing out my townhouse, I rented a share in a
three-bedroom apartment in Queens with
another law student and a couple. My new
roommates might have been considerably
younger than me, but I felt more like a trailblazer
than a latecomer.
I graduated from Rutgers Law–Camden, and was fortunate
to be hired as law clerk for the Honorable Edward V. Torack in
Bergen County. It was a pre-dissolution court with the largest
docket of cases in the family part. With a heavy motion calendar,
I often left the courthouse at midnight; the security
guards became my best friends. Beyond the fact that some
people marveled that I went to law school “at my age,” and
expressed that they “could never do that,” I doubt my experience
was different from most other law clerks, which left me
totally unprepared for the responses I received when I started
knocking on law firm doors.
Age Discrimination is Out There
The corporate counsel at a hospital where I was an extern
for a full semester had warned me that “age discrimination is
out there,” but I refused to believe it.
As my clerkship began winding down, I started looking for
employment in large firms, along with a number of other,
younger, candidates. A young law clerk, in what appeared to be
a much less demanding family clerkship, was hired by a sizable
firm in Newark. Another family part law clerk, who had a reputation
for slacking off the whole year, joined an equally prestigious
firm. I couldn’t get an interview in either place, despite my
tactical efforts.
Retaining my enthusiasm, I decided to pursue a position in
a smaller firm. The two partners at one firm where I interviewed
looked visibly shocked when I entered the room.
While pursuing another opening, I was inadvertently copied
on an email from one attorney to another, asking if anyone at
the firm knew me. Whether the concern was the fact that I
was a woman, older, or outside their circle of contacts, I was
clearly experiencing some form of discrimination.
After such a rigorous clerkship, it seemed odd and unfair, but
in retrospect, those rejections led me to a position as associate
to a certified elder law attorney in Jersey City. Many of the
clients were in my age range, and dealing with issues concerning
their elderly parents. Having dealt with those issues myself,
I could easily relate to them, and understood the conflicts and
complexities they faced. I noticed that even in my first week on
the job, the attorney did not hesitate to place me in consultations
with families, if only to listen to the prospective clients
and gather information. It appeared that a younger associate
was reserved for other, less hands-on, tasks.
Tips from a Seminar Proved Invaluable
With a few years behind me, I decided to start my own
practice. I attended a seminar titled “Building Your Practice
from the Ground Up,” and used the information I obtained
there to launch my business plan.
The panel suggested opening a practice in an office building
with other law firms, where they either: 1) offer complementary
services, or 2) offer the same kind of legal services.
Being surrounded by complementary services, there would be
the likelihood of referrals. Being near firms practicing like
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NEW JERSEY LAWYER | June 2012 13

areas of law, you could get overflow
work. I chose to establish the firm in
Monmouth County, where I had lived
for several years prior to law school, and
where my children had grown up.
After researching many locations, I
selected the Ellis Law Center. The building’s
appearance was inviting; it was close
to the court and my home; and it was
filled with firms practicing criminal, personal
injury, and bankruptcy, but not
family, law. Not only was I excited, but
the other attorneys in the building
seemed genuinely enthusiastic about
incorporating my practice into the center.
I knew this was where I was meant to be.
While I promptly took the seminar
panelists’ advice on location, I was more
reticent about their suggestion to retain a
business manager to supply a check list;
sift through minutia; furnish the office;
evaluate merchant services (VISA, Master-
Card and/or American Express); select
business software; direct me to reliable
companies providing vital services at
good prices; and make recommendations
for prudent investments in marketing.
Because this entrepreneurial adventure
consumed time, energy, and funds, the
expense of a business manager seemed
extravagant. In hindsight, I see it as a
necessity.
Shout it from the Hilltops
One of the areas where age would
pay off became apparent as I began
sending out announcements for my
new business venture. I realized I had
scores of contacts from all walks of life.
As the mother of two, my kids’ school
years resulted in contacts with teachers,
administrators, other parents, leaders of
extra-curricular activities, and children
who were now adults. For example, two
of my children’s friends from middle
school contacted me through my firm’s
Facebook page with their legal issues.
Being an area homeowner and consumer
for years, I knew retailers, doctors,
bankers, realtors, etc.
I conducted an a cappella women’s
chorus for 15 years, and had built wonderful
relationships with the singers and
our audiences.
I knew 350 congregants from the
temple I had worked at for four years.
I started my practice with a certain
level of credibility with many of these
people, who became great resources for
clients and referrals. Through this network,
I was becoming the go-to person
for varying kinds of legal issues, referring
individuals to the appropriate
attorneys who, in turn, referred prospective
clients to me. And so, once again,
age was on my side.
But while this circle of contacts was
invaluable, I had to keep in mind the
need to advertise for business outside
my comfort zone. Here again, a business
manager can offer great advice.
Collections—Not What I Signed Up For
When it comes to business operations,
one thing I learned relatively quickly is
that age does not provide immunization
against someone taking advantage of you.
I was told more than once to “always get
a significant retainer,” and that “there are
no partial retainers.” Despite this advice, I
had to learn the hard way. Heart-wrenching
tales have moved me to take on some
clients who later revealed themselves to
be more shrewd than needy.
Discerning when to be flexible with
fees is not an attribute that automatically
comes with maturity. At times it remains
a challenge for me. Mentors had advised
me to expect a considerable amount of
time to pass before red would not be the
predominant color of the ink on my
books, but over time the magic of a good
reputation and the kindness of colleagues
can put you on the fast track to black ink.
Seasoned v. Newer to the Field of Law
Experience and reputation are two
things a relative newcomer to the legal
profession, like I was, has to compete
against when it comes to launching a
practice, compared with a more seasoned
attorney choosing to open a solo practice.
The attorney who has worked a decade or
more in another firm might start out with
a considerable client base, a substantial
number of colleagues from whom he or
she can reasonably expect referrals, and
possibly the ability to hire staff from the
outset. The seasoned attorney may have a
coterie of colleagues who pursue a partnership
or welcome adjoining his or her
practice to theirs. The newer practitioner
is highly unlikely to be courted in the
same way, and is less likely to be known
to the legal community. The lawyer with
seniority in law has less risk by virtue of
already being established, and having a
reputation in the field.
Starting from the position of an
unknown and relatively new to practice,
I knew the competition of larger firms
would be another given. Reputation and
staff can have a magnetic pull on cases
involving well-known people or great
complexity. The absence of name recognition
until you find ways to gain exposure
for the firm compels you to highly
prioritize networking with both old and
new contacts, both in and outside of the
profession. Without a bankroll or partner
of means, financial constraints
make every option a challenge.
The Value of Life Experience
In my case, where professional experience
was not yet abundant, personal life
experience was considerable. As a family
law practitioner, most of my files involve
divorce and post-judgment of divorce.
Having my marriage dissolved after 16
years, I have a good idea of what my
clients are experiencing. When working
with a potential client who is contemplating
ending a marriage, I can relate to both
the practical and emotional aspects of
their case. Similarly, my empathy for single
parents comes from living that role.
Having worked in several businesses,
bought and sold property, been president
of a small company, and had many
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other types of employment along the
way, my experience and maturity have
become my partners in serving clients.
Shared backgrounds and experiences
foster a natural bond and trust.
Time Management
I quickly learned that building a practice
requires constant care. Like a firsttime
mother with her newborn, you are
consumed 24/7 by its needs. If there is
any flexibility in scheduling when starting
a firm, it is what I laughingly refer to
as “the days the office is closed.” Calls
and texts arrive every day, and at any
hour. It would be self-defeating for me
to have a phone message announce
hours of operation. As a solo, I am on
duty at all times.
As a result, juggling family, social
commitments, and work becomes more
challenging, particularly since a solo
attorney performs every task in the firm,
at least in the first several months. Family
and friends will begin to realize your
priorities have changed, and both they
and you need to adjust.
Even with the unforeseen demands
and challenges along the way, there is
no doubt about it: starting a solo firm
later in life is exhilarating. And if I had
started out in law school at 25, I probably
would have still made my way into
solo practice in the end.
Mary Jane Leland is a family law attorney
in Freehold, a barrister of the Haydn
Proctor Inn of Court and a board member of
Celebrate NJ, a nonprofit that provides supplemental
classroom initiatives for elementary
school students.
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Finding the Balance
A Solo’s Tale
by Susan Schleck Kleiner
The challenges of being a solo practitioner
and a mother of two small children are
surpassed only by its rewards. Balancing a
legal practice and a family life—or any life at
all outside the law—can be daunting. The key
to managing both is flexibility.
Although some sort of balance is what I hope
for in the aggregate, on a day-to-day basis it
is not so much a balance as a pendulum:
clients, family, networking, the business of
being in business for yourself, and even the
occasional social outing—all in turn make
their clear and unequivocal claims as the pendulum swings
day by day and hour by hour, and must be served.
But besides the business aspect of being a solo, all of this
could easily have been said of practicing at a large firm as well.
The law is a particularly demanding life, requiring, at times,
one’s complete and undivided intellectual and emotional
attention in ways that few other things do. Perhaps the primary
difference in being a solo is the utter dissolution of the
discretely contained workday. Through technology, the joy of
modern worklife is that much of what must be done can be
done from anywhere—and leaving the office does not mean
leaving work. With a smart phone and a secretary I can have
lunch with a prospective client or pick the kids up from
school while still minding the store remotely. In addition, my
children are sung to sleep each night at 9 p.m., and with a laptop,
Internet, and complete access to my office network,
many a brief has been written or finished as they dream about
Pillow Pets, Selena Gomez and whatever else it is that six- and
eight-year-olds think about while they snore.
Assembling a Team
Solo does not, and cannot, mean being alone. In order to
juggle many hats, it is important to rely on others to help
make it happen. One of my biggest fears when leaving
‘biglaw’ was that I would no longer be able to send mass
emails out to the entire firm asking, “has anyone ever briefed
xyz issue” or “does anyone have a form for abc?” However, as
a solo practitioner, I can still rely on my friends in ‘biglaw’ to
help me out. And, importantly, I have established a network
of attorneys in small firms/solo practices who regularly share
sample forms and briefs, and take the time to explain their
own experiences in dealing with a particular issue. In turn, I
also give freely to them. While I was fearful about the lack of
community in solo practice, I have found exactly the opposite:
My colleagues have been more than happy to help me
strategize about cases, listen to me vent about a difficult case
or client, and provide me with a sounding board on running
my business. We help each other.
The key is, an attorney leaving a firm to start his or her
own practice should not only not burn bridges, but should, in
fact, build them and carefully keep them well maintained.
I have been fortunate enough to also develop a dedicated
staff. In the first few weeks of practice, I realized I couldn’t do
it all. Even with modern technology, all of the administrative
aspects of running a firm were particularly daunting. As my
practice grew, the importance of enlisting others in the cause
became thoroughly apparent as I attempted to juggle 16 work
issues—some of them small and tedious, but nonetheless
urgent—while good potential new business lay there for the
taking. A committed team allows me the freedom to do those
things I do best—devote myself to my clients, give good counsel,
and when necessary, fight the good fight.
And for those who take the word “solo” to heart, it’s worth
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noting that even boxers, those most
solitary of practitioners, have trainers,
managers, cut men and sparring partners,
as well as promotional teams.
Where Do You Find a Team?
One of the other joys of modern legal
worklife is that so many attorneys are in
the same or similar boats. The workforce
is filled with smart men and women trying
to juggle a family life and the law.
Many women (and some men) who
have left firms to raise a family have 10
or 20 hours a week to fully commit to
the practice of law—much of which can
be done from home. A smart solo, if
flexible, can harness serious intellectual
capital in a mutually advantageous way.
The legal market has changed significantly
over the last few decades, and the
number of women with law degrees has
risen dramatically. According to the
American Bar Association, women made
up roughly 47 percent of all first-year
law students in 2009-2010. 1 Statistically
speaking, a number of these women
have left or will leave practice in order
to have and raise a family. 2 The onsite
demands of ‘biglaw’ or even ‘mediumlaw’
do not readily cater to the time-eating
demands of small children—but in
solo practice those demands can be
accommodated. With planning and a
few important infrastructural and temporal
accommodations, I can make
these arrangements work for my clients,
my firm, and my associates. And I have.
It may be as simple as writing that
brief together via email and cell phones
after the children have all gone to sleep.
It may require babysitters. It may
require children coming into the office
for awhile—and when they do, there
may need to be a filing cabinet dedicated
to their needs, filled with quiet toys,
games, coloring books, etc. to keep
them occupied, or a cable TV hookup in
a small room in the office with a DVD
player and some age-appropriate
movies. None of these constitute an
overly large expense, especially considering
the billable hours they allow, but
they are often crucial in facilitating
work that simply must be done.
The rewards? As a solo, I cannot
afford to pay ‘biglaw’ salaries. But
because of my flexibility and my willingness
to make these small accommodations,
I’m able to hire and work with
top-flight legal talent at discounted
rates—sometimes on a contract basis
and sometimes as part-time employees,
depending on the individual circumstances.
My clients reap the benefits in
ways they are all too happy to report—
to me and their relatives, friends and
associates; my contract and part-time
associates have what amounts to a
decent supplementary income and, perhaps
just as important, the intellectual
engagement the law brings when a
backdrop to their day is generally the
sing-song inanity of children’s TV, PTA
meetings and the often less-than-compelling
duties of housework. And if
these associates ever decide to re-enter
the world of law full-time, the appearance
of my firm’s name on their resume,
as opposed to that big nine-year blank
spot, may prove invaluable.
Another serious wealth of legal talent
can be found in judicial clerks. Having
had the privilege of clerking for New Jersey
Supreme Court Chief Justice Robert
Wilentz, I am a firm believer in judicial
clerkships. After graduation from law
school, the clerkship experience serves
in many ways as a finishing school for
newly minted J.D.s. Being at the heart of
the day-to-day machinations of the
court teaches in ways that are hard to
equal. And with the recent downturn in
the economy and legal work in general,
‘biglaw’s’ loss can be a solo’s gain.
My alma mater, Seton Hall Law
School, is a big believer in clerkships—
with over 30 percent of their graduating
class entering the ranks of the legal
world as judicial clerks each year, 3 the
downturn has left a few, for the
moment, in search of work. I keep in
touch with career services at Seton Hall,
and find them both responsive and
helpful. As a solo building a practice, I
don’t have a great deal of money to
offer, but I do have experience—and
that in itself can be a major asset in this
economy. Plus, as I’ve grown, I simply
have more work than I can handle.
I recently hired a Seton Hall clerk I
met while working a case in Somerset
County. She was impressive in court,
and has proven even more so in my
office. In addition to an admirable competence,
skill and determination to
excel, she brings an exuberance and
freshness to her work that is refreshing.
As someone who has been practicing
law for almost 20 years, it’s often a joy
to see the law through her eyes; and taking
the time to mentor her has already
paid real dividends. Of course, even
with the clerkship there is a learning
curve, but her ability to research, write a
brief’s first draft, fix citations, make
phone calls and handle some of the
more mundane tasks of practice
(though not yet mundane to her), leaves
me available to service my clients and
garner new business that would otherwise
be left, by necessity, on the vine.
And what does she gain? She has her
first law job, outside of her clerkship.
Over time she has grown, and will continue
to grow, into a life in the law. If
she were to someday leave for greener
pastures, I am sure she will remain a
trusted colleague and the potential
source and recipient of sounding board
phone calls, practice advice and even
potential clients. The law world is a
small one, and to live in it with allies,
especially homegrown ones, makes it all
that much easier and fulfilling.
And of course, I regularly team with
other solos as well, marshalling their
expertise for cases outside of mine, as
they do with me. Some I’ve known from
back in my ‘biglaw’ days, and some I’ve
met as a solo, often in networking
WWW.NJSBA.COM NEW JERSEY LAWYER | June 2012 17

groups and sometimes in court. In one
instance, another solo who saw me
argue a case felt compelled to come to
me afterward, and a few kind words
turned into a lunch and an understanding
that, although she had a completely
different practice than mine, we were
complementary. And as luck would
have it, the next case that walked in my
door was in her practice area. We
teamed on the case and over the years
have developed a working relationship
that has resulted in many cases and
mutually billable hours, as well as a
strong friendship. She is there for me, as
I am for her. We read each other’s briefs,
talk strategy and have shared a holiday
dinner or two.
In this instance, like so many others,
my worklife has merged with the personal,
resulting in a balance all its own.
Perhaps one of the greatest lessons I’ve
derived from this particular relationship
is that a willingness to be open to the
possibilities of even a chance meeting
can go a long way.
However, all professional relationships
cannot be left to chance. I belong
to a number of networking groups, legal
and nonlegal, and have found them to
be invaluable in growing my business.
As a solo, I am my own rainmaker. From
the legal groups such as the New Jersey
Women Lawyers Association (NJWLA),
and the New Jersey State Bar Association’s
Women in the Profession Section,
I gain collaborators, practice tips, and a
cheerleading squad when I need it.
For example, when I first went solo, I
found the accounting/billing/time entry
system to be particularly challenging.
An administrator from another solo’s
office—whom I had met through
NJWLA—came to my office and spent
five hours fixing the horrible mess I had
made. She refused payment. I have since
made myself available in a similar manner
for other group members, never forgetting
the kindness shown to me when
it mattered most.
These groups have been a marvelous
source of referrals. Additionally, I belong
to a business networking referral group.
It meets weekly, too early in the morning,
but has proved to be a particularly
rich source of both referrals and services.
As a solo, a single mother and a
homeowner, I have a broad range of
needs. And part of work/life balance is
having those needs—whether information
technology (IT) issues or a leaky
faucet—met in a timely and professional
manner. Simply put, I have a network
of professionals available to me to fix
things that need to be fixed. Fortunately,
the members of this networking
group have needs as well, as do their
clients, colleagues, friends and families—some
of which are legal. We, in a
sense, partner with each other, serving
our own best interests while serving
each other and our clients as well.
Again, this combination of work and
personal life assists with creating that
balance—or at least striving for that balance.
IT Issues
It might as well be known as “it,”
since without IT my practice—and most
practices, would be thoroughly lost—a
house of cards fallen by the wayside
without billable hours. Information
technology, in all its various forms, is
what makes a law office and a schedule
function successfully.
Without modern technology, it
would be almost virtually impossible to
run my often virtual law office. In fact, I
can see no way I could juggle my family
and social life without gadgets and
devices. With a smart phone and a laptop
(and as long as I monitor my voice
mail), I can be available 24/7 for my
clients—a service that has endeared me
to my clients in very important ways. In
many instances, my reply may just be a
quick text message setting up a phone
call or meeting when I can be completely
focused on the issue at hand. But I’m
there.
I have learned the hard way that trying
to do too many things at one time
can lead to frustration. I need to be present
for my family and for my clients.
And, while I sometimes have to multitask
(and try to address both at once), I
find that I do better with both when I
schedule time to be fully present. Often
the mere contact and the commitment
to be there at a set time, whether its
“Mommy will be with you in just two
minutes,” or text messaging “I can meet
with you tomorrow in the afternoon to
discuss this, schedule with my secretary,”
is enough to calm the jagged
nerves and demands of those who need
my attention.
But the moment the Internet crashes
or Microsoft Word crashes in a loud
angry thud, I’m out of business. At
‘biglaw,’ there were amazing people that
staffed the helpdesk and IT department
who would come to the rescue when
such problems occurred. Much to my
dismay, I no longer have an entire IT
department to drop everything and help
when my computer crashes just as I put
the finishing touches on a brief—I simply
cannot afford them. If you go solo,
you will not be able to afford to bring
them with you either.
Paramount to your success will be
having someone for whom binary, bites,
and boot sector are a primary language.
All machines break; as lawyers we are, in
a sense, the purveyors of highly contextualized,
painstakingly individualized
and exceedingly time-sensitive information.
When your source of much of that
information breaks, you need to be able
to rely on a techie—and preferably one
with whom you have taken the time to
forge a good relationship.
Thankfully, through my networking
group I have established a personal relationship
with my IT consultant. That
means the moment I download some
kind of virus on my laptop while doing
background research, I am able to text
18 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

my IT support, get an immediate diagnosis
along with the all-important command
to “stop trying to fix” so I don’t
make it worse, and a promptly scheduled
time to clean my computer and
save my data. In turn, when my IT consultant
has a legal issue—and he has
contracts, disputes, and collection issues
regularly enough—he knows that he
can depend on me to offer good,
prompt advice/service, and/or steer him
in the right direction.
Clients
Clients, the lifeblood of practice, can
also be a source of balance—and balance
can be a source of clients. One of the
things I really enjoy about having my
own firm and calling my own shots is
knowing that typically, a conflict won’t
prevent me from taking on a new client.
And, my fee structure is such that I can
be flexible with rates (and even sometimes
payment plans). This means my
clients can come from anywhere—from
parents at the PTA meeting who have an
issue with their general contractor, to
my dry cleaner who has some questions
about his lease, to a friend of a friend
who got sued for a business dealing
gone bad, to my friends at ‘biglaw’ who
have a case that is too small for them to
handle or presents a conflict for them.
The world is literally my legal oyster,
and clients and potential clients are
everywhere.
For me, getting clients has been and
always will be highly personal—such
that the very art of rainmaking goes
hand-in-hand with work/life balance.
Clients become friends, and the friends
of those friends become clients, as the
way of the world pushes us all inexorably
toward a legal problem of some
sort or another eventually. Colleagues
and former colleagues become lunch
dates and a chance to catch up, laugh
awhile (the law can be very funny), and
swap referrals. ‘Strictly business’ is not
something to which I aspire. Yes, there
is a time and a place, but outside of the
constraints of court, as a solo that time
and place is marked primarily by its flexibility.
Finding Balance
Certainly, the demands of work and
family can be extremely challenging at
times. With help from others—in family
life and in work life—I try each day to
be the best parent, lawyer, friend, sister
and daughter I can be. It may not
require a village, but it does require a
team. And just as I play parts both large
and small on the teams of so many others,
many others do the same for me. In
the end, being a solo is a shared journey,
and one I wouldn’t miss for the world.
Solo balance? It’s not always easy.
And even as I write this article, I am fretting
about the interrogatories that are
coming due, the fact that we didn’t finish
my daughter’s science project over
the weekend, and the fact that my
accountant needs all of my year-end figures
so that I can get my taxes squared
away. While I sometimes bask in that
gracious feeling of ‘balance,’ I’m more
apt to feel, at any given moment, pulled
in one direction or another. But that’s a
life in the law, a life I’ve chosen and
built, and one I’d choose again without
a moment’s hesitation. The same goes
for being a mother and a solo.
My daughters often shower me with
cards and pictures they make in their
after-school program to let me know
how much they love me. My clients
send me cards and thank-you gifts along
with their payments, incredibly grateful
that I have been able to help them
through a difficult legal situation. My
accountant tells me I’ll be ok. And the
interrogatories are scheduled for Thursday,
2 p.m.
And the pendulum swings….All in
all, I wouldn’t have it any other way.
Endnotes
1. American Bar Association, Enrollment
and Degrees Awarded 1963-
2010, www.americanbar.org/content/dam/aba/administrative/legal_
education_and_admissions_to_the_
bar/stats_1.authcheckdam.pdf
2. Stephanie A. Scharf and Barbara M.
Flom, Report of the 2010 NAWL Survey
on the Retention and Promotion
of Women in Law Firms, October
2010, http://nawl.timberlake
publishing.com/files/NAWL%20201
0%20Final(1).pdf
3. Seton Hall Law, Information for
Prospective Students from the
Office of Career Services, http://
law.shu.edu/publications/upload/ca
reer-services-facts_Remove.pdf.
Susan Schleck Kleiner is the founder of
Law Offices of Susan Schleck Kleiner in
Metuchen. Before going solo, she was a
partner at an environmental litigation firm
based in Philadelphia and an associate at
Drinker Biddle & Reath LLP and Lowenstein
Sandler. She wishes to thank Michael
Ricciardelli, J.D., for his invaluable assistance
in writing this article.
WWW.NJSBA.COM NEW JERSEY LAWYER | June 2012 19

Starting a Solo Practice Soon Out of Law School
by Kristen A. Perry
I hadn’t intended to start a solo practice less
than a year out of law school. In fact, the
beginnings were a bit inauspicious, certainly
unplanned, and the circumstances, at the
time, were unwelcomed. But some 10 years
later, I wouldn’t change a thing. Had events
not unfolded exactly as they did, I might not
be as professionally satisfied as I am today.
Big Firm Beginnings
I attended Seton Hall in the evenings and, as is frequently
the case with night students, had been working for many
years beforehand. While in law school I worked first in a
small, niche law office, eventually moving to a mid-sized 60-
attorney firm, anticipating staying on there after law school.
While there, the IP/Tech group was purchased by an out-ofstate
firm; I continued working for this firm while finishing
law school. By the time I returned to begin my first year as an
associate, the office had begun jettisoning attorneys as a result
of the tech bubble bursting. In February of my first year, I
received the news that my remaining days at the firm were
numbered (90 to be exact).
First-year associates, within a month or so of being admitted,
are not particularly sought after by prospective employers. And
in my case, I was not only a first-year associate, but a pregnant
one at that. While my former colleagues helped me secure a
number of interviews, I certainly could not hide my status, and
did not expect to land a position while being so ‘encumbered.’
While pursuing possible positions, I took advantage of the
firm’s offer for career counseling, where I was encouraged to
explore starting my own practice. Together, the counselors and
I took an honest look at my strengths and weaknesses—a crucial
first step for anyone considering this path.
Looking Within
First we discussed entrepreneurism. I had a small business
in my 20s, so I was aware of the self-confidence, courage,
planning, creativity and resourcefulness needed to launch a
business. The big question was, what legal skill set did I have,
or could I develop, to establish a successful practice and effectively
compete with other attorneys? And, would I be able to
pick up the phone, knock on the door, pursue new clients and
manage any doubts, while attending to the business end of a
law practice?
As I was well aware, this sort of honest self-assessment
must be taken seriously.
I thought about what I already had learned by working for
other lawyers, and what tools I had picked up while in law
school. I thought about what interested me, and about what
skills I had that could generate income. In my case, I had been
working for years in the intellectual property (IP) and technology
practice of a sizable firm, and was confident in the skills I
was honing. But was there an instant market for my skills?
I did not have the luxury of unlimited resources to tide me
over until the business started rolling in. I had maintained my
knowledge and worked to expand it, but I had to face the facts
that practically speaking, I might not hit the ground running as
a Hunterdon County IP attorney. That would have to wait a bit.
And so, I inventoried what I could do immediately, and
identified two sources of revenue: brief writing and real estate.
I was an efficient and efficacious researcher, and enjoyed the
process of brief writing. I decided one way I could get started
was to offer these services on a per diem basis. I was confident
in my ability to take the work on and deliver a quality product,
so I reached out to attorneys I had worked with previously,
and explained what I was doing. They made introductions
that led to writing opportunities.
Paying Attention Pays Off
Before becoming a law clerk at the New Jersey firm, I had
extensive experience in real estate. I did not go to law school
dreaming of becoming a residential real estate lawyer. And little
did I know that my economic existence might rely upon
what I was learning at the time. I am glad I was paying attention;
it’s a lesson I keep with me today. I made the commitment,
and focused on developing these two practice areas.
20 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

While general practice may be right
for some, I did not want to stretch
myself too thin. I had little courtroom
experience, no matrimonial law mentor,
no criminal defense background. Deciding
what areas to avoid required a careful
assessment as well, from the perspective
of ethics; professional responsibility;
clients, colleagues and myself.
Beyond taking stock of my legal abilities
and interests, and whether they
could provide the basis for a practice, I
had to take stock of who I was, and who
I would need to be in order take on certain
duties. Primarily, that meant generating
business.
Knocking on Doors
I knew from past experience that I
was sufficiently extroverted to knock on
doors; being well received is another
matter. Being outgoing may pry the
door open, but what would it take to get
invited in and asked to return?
I have found that being sensitive to
others is key. Being a skilled listener is
more important than being a learned
speaker. Being a good conversationalist
is more important that having something
to say. Engaging others is not
about making my know-how the center
of attention. Above all, sincerity trumps
savvy every time.
So I knocked on doors. Literally. Fortunately,
one was opened by someone
who helped me tremendously.
Back when I was working at that midsized
firm, I drove by a small law office
every day, situated in the beautiful village
of Oldwick. The shingle hung outside
a classic colonial. There was a white
picket fence. Flowering roses thrived in
season. There were candles in the windows.
I always thought “she knows how
to practice law.” One day, I thought, I’d
like to leave big firm life and set up an
office like that.
So when I was pregnant and interviewing,
I stopped by her office. I introduced
myself to her assistant. I asked for
a few moments of the lawyer’s time, and
she graciously obliged, telling me how
she wound up in Oldwick and what solo
practice was like for her. We became
friends, and she opened her office to
me, referring clients and serving as a
mentor.
I remain grateful to her to this day,
and have repaid her generosity the best
way I know how: by extending the same
to others.
To be sure, not everyone responded so
graciously to my knocks. Some people
were unwilling to share information,
insight and experience when approached.
But I never failed to thank them for their
time, and I meant it. We are all busy people.
Random calls come in all day long. To
take my call and/or return it was a favor,
not an obligation. Still, I take those calls
now whenever I can.
Do Unto Others
I’ve learned it’s important to be
mindful of opportunities to help those
who have extended their hand to you.
When I come across an article someone
might find of interest, I send it along.
When a neighbor approaches me with
an issue that falls outside my scope of
representation, I ask whether they
would like to call one of my trusted and
capable mentors.
Being available as a sounding board is
also invaluable. Having had the firm
experience, I know the value of being
able to walk down the hall to bounce an
idea off of someone else. Finding office
space where there are other attorneys
amenable to such visits is one way to capture
that resource. But developing relationships
outside the office works just as
well, and is an interaction you should be
prepared to engage in on both ends.
You don’t know any lawyers, you say?
Meet them. Join the state bar association
and the local one in your county. Attend
dinners. Introduce yourself. Bring your
cards. Be prepared to discuss your areas
of practice, and be prepared to listen to
others talk about theirs. Tell them it was
a pleasure meeting them. Keep in touch,
and ask them whether they would like to
get together for coffee (short meetings
and in the early morning are often most
convenient). Listen to them, and don’t
interrupt. We all learn more by listening
than by talking.
The Waiting Game Pays Off
You may question it when you first
open your doors, but the work will start
coming in. I’ve found that persistence
and commitment to doing the best in
every aspect of the business is a key to
success.
Ten years after knocking on those
first few doors, I am still practicing on
my own. And over time I managed to
bring my practice full circle, returning
my focus to intellectual property by
gradually taking on more of the work I
started out wanting to do, while continuing
to manage the real estate and other
transactional work that brought me success
as a solo practitioner. This unexpected
path has led to a thoroughly
rewarding career.
Kristen A. Perry practices intellectual
property, business, licensing and estate
planning law in Clinton, and is entering her
10th year as a solo practitioner.
WWW.NJSBA.COM NEW JERSEY LAWYER | June 2012 21

Transitioning From Law Firm Associate
to Solo Practitioner
by Jeffrey J. Brookner
As an associate at a big law firm, I enjoyed the relative comfort of having a reliable flow of
work to keep me busy, an extensive support staff to help me work efficiently, and a steady
income to feed my family. I was occasionally tempted by the prospect of greater freedom and
shorter hours as a solo practitioner. But leaving the comfortable, if sometimes restrictive,
cocoon of a big law firm for the comparatively chaotic life of a solo practitioner was a
daunting prospect. Eventually, though, I took the plunge.
The decision to go solo was the result of considerable
research and planning. During the
process, I was pleasantly surprised to find a
wealth of free, readily available information
on establishing a solo practice. Advice about a
wide variety of topics, from office development
to marketing, is just a Google search away. Rather than
focusing narrowly on any one of these topics, this article
addresses the process of going solo from the unique perspective
of a law firm associate.
Are You Ready to Take the Plunge?
The first decision is whether you really want to head out
on your own. For most associates considering the move to
solo practice, the primary lure is the opportunity to be your
own boss. Solo practice offers the freedom to set your own
hours, the freedom to accept or reject client engagements, the
freedom to wear whatever clothes make you feel comfortable,
etc. But these new freedoms also come with new responsibilities.
Being your own boss must be weighed against being your
own secretary, paralegal, librarian, copy service, etc. While
you might envision building a practice that can afford the
luxury of a support staff, few novice solos start out with one.
You also must consider whether you can stomach having a
balance sheet that resembles a yo-yo. As an associate, you probably
take for granted getting the same paycheck every two weeks.
Solos fervently pray for great months in which their incomes substantially
exceed their former salary. Those months will come, but
there will also be months, or even quarters, with little if any
income. If you don’t think you can handle the stress of waiting
for the next client to hire you, or the next check to come in, you
might want to keep the steady salary your current job offers.
You also have to decide whether you can make enough to
support your lifestyle. It isn’t easy, but it isn’t as hard as you
may think. I have heard it said that the typical breakeven
point comes when you can bill (and collect for) 50 percent as
many hours at 60 percent the rate. This is only a rule of
thumb, but it has been consistent with my experience.
Consider, for example, an associate who bills 2,000 hours
at $250 per hour. Assuming a 90 percent collection rate, the
firm’s revenue is $450,000, but the associate’s salary would
probably be in the range of $100,000. If that associate
becomes a solo and can bill 1,000 hours (50 percent) at $150
per hour (60 percent), his or her billings will be $150,000. Net
of unpaid receivables, modest expenses, and healthcare costs,
the solo practitioner can expect to make roughly what he or
she did before—despite working half as many hours.
Incremental increases in these percentages impact the bottom
line disproportionately. If the hypothetical associate can
bill 70 percent as many hours (1,400) at 80 percent the hourly
rate ($200), billings will be $280,000 and take-home pay will be
more than twice his or her previous salary. Of course, finding
clients who will pay you 80 percent as much for 70 percent as
many hours is easier said than done. Only you can decide
22 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

whether you want to take the risk.
Don’t Jump Too Soon
If you decide to take the plunge, you
have to get serious about your business
plan. There are many details to attend
to—forming a corporate entity, getting a
taxpayer ID number, deciding where to
locate your office, purchasing a computer
and software, opening bank accounts,
registering with IOLTA, getting business
cards, arranging for insurance coverage,
etc.—before you open your doors for
business. You should get your arms
around these details while you still have
the security of a steady income. Saving
them for the lame-duck two weeks after
you give notice is much too late.
Instead, make use of the lame-duck
period to cultivate relationships. Being a
successful solo is all about relationships—with
former colleagues, former
adversaries, former clients, former classmates,
etc. Your colleagues at the firm
can be an invaluable resource after you
leave. They can serve as mentors. They
can answer questions outside your specialty.
They can help reunite you with
research you conducted or forms you
prepared years ago. Plus, they might
refer clients to you. All too often,
departing associates destroy these valuable
relationships by burning bridges on
their way out. Developing a practice will
take years. Getting a good start is important,
but not as important as establishing
and maintaining relationships.
One common mistake is leaving too
hastily, paying short shrift to exit memos
and other file-transition tasks. Many
associates mentally check out after giving
their notice; they arrive late and depart
early for the obligatory two weeks. Doing
so is a huge mistake. I gave notice that I
was leaving to set up my own firm, but I
didn’t specify a departure date. I ended
up staying on for almost five more weeks,
making sure all of the loose ends in my
files were properly tied up. I worked past
midnight several nights to get an appellate
brief out the door. I think I made the
right decision. My colleagues noticed,
and so did several clients.
Breaking the News to Clients
Deciding when and how to tell clients
you are leaving is often a touchy issue. In
fact, the ABA Journal identified this as one
of its top 10 ethics traps. 1 You should
resist the urge to tell clients you are leaving
until after you tell the firm. Scheming
behind your employer’s back to divert
corporate opportunities to your new practice
is sleazy at best, tortious at worst. 2
When you do inform clients you are
leaving, the notice should be entirely
neutral. Under RPC 7.1, communications
to a potential client cannot “compare
[your] services with another lawyer’s
services,” or otherwise be “false or misleading.”
Additionally, a communication
that asks a client to follow you to your
new firm will be treated as an advertisement,
subject to the strict rules in RPC
7.3(b)(5). Thus, it is preferable to send a
neutral letter (perhaps even jointly with
the firm) that says little more than you
are leaving and provides details on how
you can be reached. Yes, there is some
risk that the firm will ‘get to’ the clients
first, perhaps firming up the relationship
before you have a chance to reach out to
them. But that is better than finding
yourself before an ethics panel trying to
justify your actions, or in a courtroom
fighting over whether a temporary
restraining order should be entered.
Another issue to think about is
whether you should even try to reach out
to certain clients in connection with your
new firm. I’m not talking about undesirable
clients; I’m talking about clients you
did not bring to the firm in the first place.
Legally and ethically, you can represent
any client of the firm who chooses to follow
you. But trying to ‘steal’ a client who
‘belongs’ to another attorney in the firm
will sour your relationship with that
attorney, if not the entire firm. Only you
know your firm’s culture well enough to
predict the reaction if you take a particular
client with you to your new firm.
While I won’t say that you should
never step on toes, I will say that you
should tread lightly. If leaving a client
behind will help keep you in good
graces with your former firm, consider
your options carefully.
If you are unsure how an attorney
will react if you try to take a particular
client away, talk with him or her. When
I left my job, I had one case that was
weeks away from trial. Requiring another
attorney to get up to speed would
have been horribly inefficient. I went to
the originating partner and asked him
what I should do. He advised the client
to hire my new firm for the trial, which
she did. But if he had wanted to reassign
the matter to another associate at the
firm, I wouldn’t have made any attempt
to secure the business. The long-term
relationship was far more important to
me than the one-time revenue.
Regardless, whether you are trying to
take existing matters with you, or you
merely want to remain in consideration
for future matters, it is critical you consider
the impact your departure may have
on your clients. Explain to them what
your departure means for them. Offer to
do whatever is necessary to make the
process painless—and costless—for them.
Packing Your Bags
Another consideration to keep in
mind as you develop you business plan
is what to take with you on your new
adventure. As discussed earlier, most
new solos will find they don’t need to
(or can’t afford to) hire an employee. But
if you do plan to hire staff immediately,
you will save yourself a lot of stress, and
training time, by taking a secretary or
paralegal from the firm with you. They
will already know your files, your clients,
and your idiosyncrasies. And it is unlikely
your former firm will be nearly as concerned
about losing an employee as they
would be about losing clients. They may
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even be glad you saved them the burden
of reassigning, or terminating, an
employee who is no longer needed in his
or her former position.
Taking forms and continuing legal
education materials, on the other hand,
can be problematic. Having a good bank
of forms and research files is nice in
most practice areas, and invaluable in
some. Resist the urge to download the
firm’s form database on your way out
the door. The odds are low that you will
ever get caught, but that does not make
it right. If you have your own personal
files, you are probably entitled to take
them with you, although some would
argue that the files belong to the firm if
they were compiled on firm time. I
don’t know the right answer to this one,
but you should give it some thought.
A Few Final Thoughts
There are no hard-and-fast rules to
guide you on moving from a position as a
law firm associate to a solo practitioner;
every situation, and every attorney, is
unique. But keeping the concepts outlined
here in mind will help make the
transition smoother. Overall, keeping
your eye on the goal is the key, and focusing
on gathering rather than alienating
colleagues and clients is essential to both
your short- and long-term success.
Endnotes
1. Top 10 Ethics Traps, ABA Journal,
Nov. 2007, found at www.abajournal.com/magazine/article/top_10_e
thics_traps.
2. See generally Meehan v. Shaughnessy,
535 N.E.2d 1255 (Mass. 1989).
Jeffrey J. Brookner left his employment
with Wilentz, Goldman & Spitzer in Jan.
2010, to found his solo practice, Brookner
Law Offices, LLC, in Bridgewater. His practice
focuses on trial and appellate litigation,
as well as estate planning.
24 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

Successful Planning
The Key to a Successful Practice
by Robert W. McAndrew
There is a very good reason why the adage
“failing to plan is planning to fail” has been
around for so long. As it turns out, it’s based
in reality, and particularly holds true when it
comes to launching your own business.
Running a small or solo law practice is not a
task to be taken lightly. Planning in several
areas is a prerequisite for success. For example,
in addition to addressing the big picture
of how to generate business, solo attorneys
and small-firm members must take the time
to focus on countless seemingly small points that together
ensure a smooth-running office on a daily basis.
For example:
• How will the phone be answered, and by whom?
• Where will you do your work? In a shared or individual
office? In a home office?
• What office equipment will you need to get you work done
(such as desks, chairs, computers, printers, scanners,
copiers, postage meters, staplers, paper, pads, pens, pencils,
markers, and waste baskets)?
• How will the work be produced? Will you need a secretary
and/or paralegal, or will you produce your own work
entirely? Will you need a part-time assistant?
• How will you handle your diary? (Court rules require you
to have one.)
• What kind of conflict check procedure will you use?
• Who will be your backup in the event of prolonged illness,
disability or death?
All of these issues may seem mundane and somewhat obvious;
however, failing to take the time to address each one
could leave you ineffective and unable to develop and maintain
a successful practice.
Income and Outgo
Before you open a solo practice or a small firm, you should
have a solid grasp of exactly how much revenue you will need
to generate each month in order to cover your expenses.
Those expenses will include, at a minimum: office rent;
salary/draw (yours and any other full- or part-time employees);
phone/fax/DSL; leased or rented office equipment; software
for the programs needed to produce your work and your
invoices; supplies; postage/lawyers service; library/electronic
research service; professional services (e.g., bookkeeping/CPA);
website expenses; debt service (for your line of credit if you
must use it); malpractice insurance; bar association dues; continuing
legal education expenses; and (if your practice
includes litigation) sufficient funds to pay filing fees, deposition
expenses and other miscellaneous disbursements that
will be required to advance a client’s matter.
When you have itemized all of your monthly expenses and
tallied them up, you will have a clear picture of what the business
must generate in fees in order to avoid going into debt,
or worse. Only at this point are you ready to begin planning
how to meet those expenses.
Drumming Up Business
The first question to ask yourself is where will your business
come from? Do you already have clients who require
your services on a regular basis? If so, will the fees generated
be sufficient to cover your monthly expenses? If not, where
will the additional revenues come from? Will you obtain a
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NEW JERSEY LAWYER | June 2012 25

usiness line of credit? Do you know
other attorneys who are willing to refer
matters to you? Is per diem work an
option?
After analyzing where your business
will come from, make a conservative
estimate of the fees your business will
generate each month. If there is a shortfall
in income, you should consider
what, if any, expenses you can
reduce/eliminate until income has
grown. If you cannot reduce expenses,
you must make a plan to increase
income.
You can do that in several ways:
• Consider whether there are additional
services you can provide to existing
clients.
• Can existing clients refer new clients
who are in need of similar services?
For example, if you are a tax attorney
providing services to small businesses,
there is a good possibility that
some of your clients know of other
small business owners who would
benefit from your services. (It may
not be appropriate for you to solicit
these potential clients directly, but
there is nothing wrong with your
clients recommending you to their
colleagues and friends.)
• Are you able to expand your existing
practice into a new area of the law,
where you know your services will be
in demand? For example, if you primarily
handle real estate transactions,
can you expand into handling
elder law matters or foreclosures?
• Become active in the New Jersey State
Bar Association, as well as your county
bar association. Both are great sources
of referrals, especially if you sign up for
membership in a section or committee
dedicated to your practice area.
• Be alert for opportunities to expand
your personal network of fellow solo
and small-firm attorneys.
• Steadfastly avoid taking on matters in
areas of the law outside of your comfort
zone. Instead, refer these matters
to other attorneys in your network
who have the expertise to handle them
competently. This will pay off in the
long run, when matters in your practice
area are referred back to you, and
clients return to you thankful that you
referred them to a reliable attorney.
Above all, provide first-rate service to
your clients. There is no better source of
business than clients who know you
worked hard for them and cared about
their problems. Anyone who has practiced
for more than a few years will confirm
that good service leads to more business.
Conclusion
By planning out your practice, you will
be planning to succeed, not failing by
default. During the planning process,
keep in mind that a plan must be flexible.
Do not just write out your plan and toss it
in your desk drawer or file it away in a
computer folder. As you progress, compare
it with your actual results on a regular
basis—at least once each quarter. Make
adjustments in each area where there has
been a noticeable deviation from what
you expected. Then adjust your plan
accordingly (e.g., if revenue is not meeting
expenses, reduce expenses further and
examine your ability to increase business;
if revenues are consistently exceeding
expectations, raise your salary).
There is nothing magical about planning.
Your results will be uniformly better
when you have made a sound plan and
followed it. On the other hand, failing to
plan is a surefire recipe for failure.
Robert W. McAndrew spent 12 years as
a solo practitioner before launching a twoattorney
firm in Morristown with his
daughter. A past president of the Morris
County Bar Association, he was named
Morris County Professional Lawyer of the
Year in 2011 by the New Jersey Commission
on Professionalism in the Law.
26 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

Ten Tips Learned the Hard Way
by Jacob V. Hudnut
At first, a three-month road trip to the West Coast and back may not appear to have a lot in
common with starting a solo law practice. But having done both, I can tell you they share a great
deal. Both were among the most exciting and rewarding adventures of my life, because each led
to unexpected places, introduced me to fascinating people, and imparted important lessons.
Yet, planning for the road trip was considerably
easier than embarking on a solo career. I
simply plugged my destination cities into
Google Maps, hit print, and climbed in the
car. As it turns out, there are no analogous
turn-by-turn directions for launching your
own law practice. Sure, there are great references out there,
such as Carolyn Elefant’s Solo by Choice and Jay Foonberg’s
How to Start & Build a Law Practice. But these books can be
pricey when purchased, and hard to track down at a library.
And even with these guides in hand, there’s no standardized
checklist for getting a solo’s dream off the ground.
Apparently the same is true to some extent for road trips as
well; even those snazzy Google Map directions didn’t warn
me that postcard-esque Salina, Utah, on Interstate 70, would
be my last chance to fill up the gas tank for over 100 miles. A
tip from friends in Denver clued me in on that fact before it
was too late. I was fortunate enough to be able to turn to people
in the know for guidance as I embarked on my adventure
into solo practice as well.
Of course, even with the benefit of that guidance, I
nonetheless encountered bumps in the road. Following are 10
tips on going solo that I learned the hard way. Hopefully, they
will save new solos precious time and energy during the
promising journey that lies ahead.
1. Get retainers; use your trust account.
When I launched my solo practice, I had the big, bright
idea that not obtaining a retainer upfront—and thus refraining
from billing until the end of my services—would be less
work. The way I saw it was that by not requiring a retainer I
would save considerable time standing in line at the bank to
make transfers between my trust and operating accounts.
Well, I was wrong. Who would have known that even the
happiest client just can’t seem to reach for that checkbook,
even after you’ve saved the day? So, unless you’re a major
Sopranos fan with a burning desire to spend your days making
collections across greater New Jersey, get a retainer upfront—
no matter how small the fee. And, of course, follow the appropriate
professional rules when managing that retainer.
2. Share office space with other attorneys.
My first office as a solo attorney was on a remote desert
island—the top floor of an office building full of doctors, only
five convenient blocks from my apartment but over 10 uphill
blocks from both the courts and other law offices. I lasted
about six months before moving to a suite of other attorneys.
Turns out—even with phone and email—there is no substitute
for basing your practice in close proximity to your bar colleagues.
Increased face-to-face interaction not only leads to
unparalleled opportunities for overflow work and general
advice, but also heightened morale.
Even though going solo may be the most daunting challenge
of an attorney’s life, no one should lose sight of the fact
that it’s an option as old as the legal profession itself. There is
value in simply being near others who have embarked on the
journey too, and are surviving and thriving a little farther
down that same road.
3. Never buy books.
There are a handful of resourceful books on going solo, and
hundreds more practice guides that will be useful, if not cru-
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NEW JERSEY LAWYER | June 2012 27

cial, during a solo’s journey. But they’re
pricey (even when bought used) and can
quickly compound a new solo’s overhead.
My belief is they should never be
purchased. (Nor should they be stolen.)
Instead, check a nearby law school’s
library. The library stacks you perhaps
rarely visited as a law student will
become a favorite haunt as a solo practitioner.
What’s more—if your experiences
are anything like my recent visits to
Seton Hall Law’s Peter Rodino Library—
you’ll find the staff will be more than
happy to help with special requests.
4. Marketing takes time;
don’t feel guilty.
When I first opened my office, for
every hour of billable work I did, I also
spent at least another non-billable hour
designing marketing materials, getting
listed in print and online directories,
writing website content, blogging, etc.
At first, I was uncomfortable with this. I
felt like I was doing something wrong.
But think about it: Many solo attorneys
(especially those new to the solo adventure)
are burdened with the responsibilities
of each and every role that would be
filled by separate individuals at a larger
law firm. This, of course, includes marketing,
and eventually it will pay off. A
new solo should rest assured that a nonbillable
hour of work can be just as valuable
as a billable one.
5. Get comfortable with your
cell phone.
A solo’s cell phone can be a powerful
tool—a little office in the palm of your
hand. Email, office calls, faxes, files,
statutes, and more can all either be
accessed from or forwarded to a smart
phone. This level of remote access to
your firm may be unnerving at first, but
it ultimately enhances your ability to
practice prosperously, so embrace it.
6. Get a soundtrack.
The journey of a solo encompasses
many uphill roads, lined with unexpected
twists and turns. I surely had my
share of tough moments during my first
months. Heck, I still do. So how do I
pull through? I have a playlist designed
especially for those occasions; every solo
should. Soloing is arguably the biggest
leap you can take. It’s cinematic, and
therefore deserving of its very own
movie score. Each solo’s soundtrack will
vary, but I’m happy to provide a few
suggestions. If you’re a solo with a soft
spot for pop music, then try Jason Derulo’s
“Ridin’ Solo.” Fleetwood Mac’s “Go
Your Own Way” is perfect for the soloby-day/classic-rock-enthusiast-by-night.
And “Defying Gravity” from Wicked is
great for any solo Broadway buffs at bar.
7. You won’t always know the answer.
While this point technically applies
to every lawyer, unlike an attorney in a
larger firm, solos don’t have a building,
floor, or even suite full of associates who
can quickly jump in when you draw a
blank in front of a client. So, how can a
solo prepare for this? Simple: Acknowledge
it when it happens. Don’t blow
smoke in your client’s face. Instead, be
honest; your candor will be appreciated
and respected. Of course, feel free to
give your best educated guess, but don’t
go out of your way to avoid admitting
you have a little research ahead of you
before you’re sure. And you can always
comfort clients by assuring them that
they won’t be paying for your learning
curve. That’ll be music to their ears.
8. Learn to dodge solicitation calls.
Many of the most disappointing
moments during the first months of my
solo practice began with the excitement
of an unrecognized number coming
through on my phone. I just knew it had
to be a potential client. Dollar signs
seemed to float right off the phone’s
screen as it vibrated. But it turns out,
while an unrecognized number can be—
and often is—a potential client, it just as
often is a sales call. And every one of
those salespeople purports to have the
copy machine, courier service, advertising
package, or even binder clip that—if
purchased—will send your business
straight through the roof. Save yourself
some time and get off these calls as
quickly as possible. Your politeness can
snowball into a 30-minute conversation,
amounting to little more than lost
billable time. If there is a tool or
resource your solo practice needs,
another solo attorney can recommend a
vetted salesperson.
9. Watch out for per diem pitfalls.
Per diem work is a great way to make
ends meet. But if you’re new to it,
beware. I mostly practice criminal
defense, and did some per diem appearances
in criminal matters when I initially
went solo. “It’s only a status conference—just
get a new date,” was the
extent of the instruction I typically
received. Sounded easy enough, but I
quickly learned it’s never just a new date.
Nine times out of 10, it’s plea cut off.
And you find yourself tap dancing
before a judge who is hungry for a disposition
and in no mood for an
adjournment, however brief. The solution?
Know the case. Never do a per diem
appearance without the file in hand, as
well as a substantive conversation with
the attorney of record first. If this is not
possible, then don’t take the gig. The
fast cash won’t be worth the damage
your reputation will suffer from a poor
performance in court.
10. Not even the happiest client
will be…happy.
This is another point that applies to
every lawyer. But if you’re a solo who
scores a big win and doesn’t get that
high-five from the client whose day you
just saved, then who will be there to
share that victory? This past February, I
successful argued at sentencing for a
three-year third-degree custodial sen-
28 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

tence on a second-degree aggravated
assault plea, in which the initial indictment
included first-degree carjacking. I
stepped into the hall with the defendant’s
family, expecting them to scoop
me up and carry me out of the courthouse
on their shoulders. It didn’t play
out that way. Instead, they insisted the
judge’s tone at sentencing was disrespectful
(it wasn’t) and demanded I do
something about it (I didn’t).
When a client or a client’s loved
ones behave this way, what can you
do? Well, I always think about that
cross-country road trip, when a tire
went flat in the Rocky Mountains. After
pulling off the interstate and finding
the help I desperately needed at a mom
and pop service station, I took a deep
breath. I pictured my next destination
(Las Vegas!) and the exciting possibilities
ahead. If you’re a solo who survives
an unexpected detour, then do exactly
the same thing. Keep your chin up. Pull
out your calendar or to-do list. See
what’s coming up next. On a solo’s
journey, there’s always another adventure—and
with it a victory to score—
right around the corner.
Jacob V. Hudnut is the founding attorney
of Hudnut Law, LLC, in Jersey City,
specializing in criminal defense, civil litigation,
and small business legal services. Prior
to launching his solo practice, he was law
clerk to the Honorable Peter J. Vazquez,
P.J.Cr. (Essex Vicinage) and a special assistant
to a commissioner of the Port Authority
of New York & New Jersey.
WWW.NJSBA.COM NEW JERSEY LAWYER | June 2012 29

The Bona Fide Office Rule
Will Virtual Offices Be Allowed?
by Craig M. Aronow, David B. Rubin and David H. Dugan III
A substantial number of attorneys practicing
in New Jersey are solo practitioners. In 2010,
there were 35,867 lawyers engaged in the
private practice of law, 21,511 of whom
practice full time. 1 Of the 35,867, a total of
11,373 were solos and 3,454 were members of
two-person firms. 2 Few court rules have as
significant an impact on the solo and small
firm’s ability to practice as the bona fide office
rule. The rule has been around, in some form
or other, for over 30 years, and it has always
brought with it controversy.
In the 1995 In re Kasson decision, the state Supreme
Court discussed the versions of the rule up to that
time, and the trend toward relaxing the rule’s requirements
through each subsequent amendment. 3 For
example, several early versions of the rule required all
practicing attorneys to be domiciliaries of the state,
and to maintain a principal office as a condition of practicing.
4 When Kasson was issued, the Court spoke about amendments
to the prior versions of the rule, which “removed the
distinction between domiciliaries and non-domiciliaries,” in
order to allow “interstate movement [of attorneys] while at
the same time assuring a sufficient degree of competence,
accessibility and accountability.” 5 The more recent versions of
the rule have continued this trend, but still impose what the
authors see as unnecessary restrictions on the manner in
which attorneys may set up their practices.
The effects of the rule have come to the forefront of the
solo’s world, in particular, due to the current state of the economy.
At a time when new lawyers cannot find employment
and have no option but to open their own shop, when big
firms are laying off experienced associates and partners, and
when mothers are looking to go back to work to help their
households, the authors view the bona fide office rule as an
unnecessary and antiquated impediment to operating a costeffective
practice while meeting clients’ needs.
While once viewed as a rule to protect the New Jersey attorney
from having their practice swallowed up by New Yorkers
and Philadelphians, 6 the rule now may hamper the New Jersey
solo’s ability to practice law within the state due to cost.
There may, however, be light at the end of the proverbial tunnel,
by way of the New Jersey Supreme Court’s Professional
Responsibility Rules Committee’s (PRRC) recent report adopting
a rule change proposal from the New Jersey State Bar Association.
This article examines the current rule and its interpretation,
the pending proposed rule change, and the implications
for practitioners under both the current rule and the proposed
change.
The Current Rule and ACPE Opinion 718/CAA Opinion 41
The rule is found at New Jersey Court Rule 1.21-1(a), and
states that every attorney who currently practices law in New
Jersey must have a bona fide office, which is defined as:
…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….” [Emphasis
added]
30 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

This rule, which in varying forms has
been part of New Jersey law for over 30
years, can be troublesome. Taken literally,
its place and person requirements can
be financially burdensome for solo and
small-firm lawyers, and possibly prohibitive
for lawyers who prefer to practice
only part time. Moreover, if the purpose
of the place and person requirements is
to ensure that attorneys are available
and can be found by clients, courts and
adversaries, 7 then the rule is out of step
with modern technology, which can
render lawyers readily accessible at any
time or place.
In 2010, two advisory committees of
the New Jersey Supreme Court, the
Advisory Committee on Professional
Ethics (ACPE) and the Committee on
Attorney Advertising (CAA), issued a
joint opinion, ACPE Opinion 718/CAA
Opinion 41 (2010), in response to an
inquiry about whether a home office or
a “virtual office” can qualify as a bona
fide office. 8
The committees took a literal
approach to the rule. Regarding the
place requirement, they determined
that a home office is acceptable if confidentiality
is preserved, but that a virtual
office, serving as the lawyer’s only
office, is unacceptable. The type of virtual
office they had in mind in their
opinion was a time-share arrangement,
whereby a lawyer reserves space in an
office building as needed, in order to
meet with clients, but generally conducts
business from outside the office.
Regarding the person requirement,
the committees determined that a
lawyer could occasionally leave the
office unattended, provided he or she
was accessible by cell phone or other
hand-held device. However, if the
lawyer were regularly out of the office
during normal business hours, there
must be a back-up person physically
present; the lawyer’s remote accessibility
would not be sufficient to satisfy the
rule.
Kevin Michels, New Jersey’s leading
ethics scholar, supports the joint opinion’s
position on the rule’s place
requirement. However, he strongly disagrees
with the opinion’s approach to
person:
The opinion creates difficulty for parttime
practitioners who do not have a
full-time person ‘present at the office’
during business hours. In the electronic
age, which allows practitioners to be
reached from nearly every location
both by voice and email, it seems
extraordinary that the Committee
would require a practitioner to shoulder
the expense of a full-time support
person to maintain a physical presence
throughout the day. For part-time
practitioners, the economics of such an
arrangement may prove prohibitive.
Lawyers need to be available and
responsive, but their physical presence
is required only for specific undertakings
and not throughout the day. The
requirement of a bona fide office,
whether at home or elsewhere,
remains valid. The insistence on the
physical presence of an attorney or
support person at the office throughout
the business day (other than occasionally)
is an indirect and unnecessarily
burdensome means to ensure
accessibility. The Court should demand
accessibility, eliminate the requirement
of a physical presence, and insist
that attorneys be reachable by electronic
or other means within a reasonable
(or prescribed) period of time during
regular business hours. 9
George Conk, a member of one of the
advisory committees that produced the
2010 joint opinion, believes virtual
lawyering is a widespread reality, with
lawyers increasingly operating in a computer
‘cloud.’ 10 This worries Conk, who
maintains that for the public to have
confidence in lawyers, they must maintain
a physical presence. 11
In 2003, when the Supreme Court
was considering issues relating to the
bona fide office rule, the New Jersey State
Bar Association chose to support the
rule’s place and person requirements.
Since then, however, the state bar’s position
has shifted, reflecting major
advances in office technology, as well as
the financial hardship the current rule
imposes upon lawyers with modest or
marginal practices. In June 2010, the
board of trustees of the New Jersey State
Bar Association submitted to the
Supreme Court a proposed amendment
to Rule1:21-1(a), which would give
lawyers flexibility in satisfying the
objectives of lawyer accessibility and
responsiveness.
The NJSBA’s Proposal
In the wake of ACPE Opinion
718/CAA Opinion 41 (2010), the New
Jersey State Bar Association formed a
subcommittee of its Solo and Small-Firm
Section and Professional Responsibility
and Unlawful Practice Committee to
study the bona fide office requirement of
Rule 1:21-1(a), and to recommend any
changes that it deemed appropriate in
light of recent developments in technology
and law firm practice management.
The subcommittee began its task by
identifying the underlying policy objectives
the bona fide office rule was intended
to advance, then addressing the most
effective way to accomplish those objectives
to honor the reasonable expectations
of clients in the digital age.
The rule’s obvious purpose was to
assure that attorneys are promptly
accessible and responsive to clients,
judicial tribunals, government agencies
and bar regulatory authorities. One
problem with the current rule was it
appeared to assume most attorneys are
litigators who spend their days in court,
then return to the office to meet with
clients. This practice model may have
been prevalent in the days of Perry
Mason, but hardly reflects the profes-
WWW.NJSBA.COM NEW JERSEY LAWYER | June 2012 31

sional lifestyle of most litigators today.
Another problem was that the rule
seemed oblivious to transactional attorneys
and other non-litigators, who may
spend no time ‘at the office’ because
they have no need for one, at least not
the traditional version contemplated by
the rule.
After considerable discussion, the
subcommittee unanimously found that
a fixed, physical office location, regularly
staffed during normal business hours,
was not the only reliable way to achieve
the accessibility and responsiveness necessary
to fulfill an attorney’s professional
obligations.
Yet another problem was that the
rule had been liberalized over the years
to stay ahead of one constitutional challenge
after another, to the point where
it now permits a licensed New Jersey
attorney to reside in Puerto Rico and
maintain a bona fide office in Guam. The
subcommittee concluded that if the rule
ever did serve a useful purpose, it no
longer does, at least not in its current
form. There also was a concern about
too much undesired accessibility for
attorneys practicing from their homes,
who have legitimate concerns about privacy
and safety.
In a written report to the state bar’s
trustees, the subcommittee emphasized
that the ‘traditional’ law office was by
no means a relic of a bygone era. It
remains a viable choice for attorneys
and firms who believe this practice
model best reflects their professional
style and identity, and most effectively
meets the needs of their clientele. But
for many attorneys and their clients,
smartphones, email and video conferencing
offer opportunities for communication
and information-gathering far
more suited to their needs than a physical
office location the attorney does not
require to perform most of the daily
tasks of lawyering, and that busy, farflung
clients may have no interest in
visiting.
The subcommittee agreed that attorneys
may need to designate physical
locations for specific purposes, such as
Office of Attorney Ethics audits and
service of process. For the day-to-day
servicing of clients, however, it could
discern no persuasive policy basis for
continuing the requirement of a bona
fide office, as presently defined. The subcommittee
noted in passing that the
current rule undoubtedly increases the
cost of legal services to the public. That
would not be reason in itself to dispense
with the rule if it were necessary to protect
clients’ interests, but the subcommittee
believed that, if that ever were
the case, it no longer is.
The subcommittee proposed that
Rule 1:21-1(a) be amended to read as
follows:
1:21-1. WHO MAY PRACTICE;
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:
(i) An attorney need not maintain a
fixed, physical office location, but must
structure his or her practice in such
manner as to assure prompt and reliable
communication with, and accessibility
by clients, other counsel, and judicial
or administrative tribunals before
which the attorney may practice; provided,
that an attorney 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, where mail or handdeliveries
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
that service cannot otherwise be effectuated
pursuant to the appropriate
Rules of Court.
(ii) An attorney who is not domiciled
in this State, but who meets all
the 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 the preceding subsection. The
designation of the Clerk as agent shall
be made on a form approved by the
Supreme Court.
(iii) The system of prompt and reliable
communication required by this
rule may be achieved through maintenance
of telephone service staffed by
individuals with whom the attorney is
in regular contact during normal business
hours, through promptly returned
voicemail or electronic mail service, or
through any other means demonstrably
likely to meet the standard enunciated
in subsection (a)(i).
(iv) An attorney shall be reasonably
available for in-person consultations
requested by clients at mutually convenient
times and places.
The subcommittee’s proposed revision
to the rule placed front and center,
more so than even the current rule, the
goals of attorney accessibility and
responsiveness that remain as valid as
ever, while offering attorneys flexibility
in how those objectives may be
achieved. It established a functional test
the subcommittee was confident could
be understood by attorneys, and
enforced by the Judiciary.
The proposal was promptly endorsed
by the state bar’s board of trustees, and
forwarded to the Supreme Court for
consideration. On Jan. 9, 2012, the
Supreme Court’s Professional Responsibility
Rules Committee issued its 2010-
32 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

2012 Rules Cycle Report, “largely agreeing”
with the state bar subcommittee’s
proposal, and recommending that the
Court accept it with several modifications,
including a requirement that the
site of the designated “fixed, physical
location” for file inspection, hand-deliveries,
and process service be located in
New Jersey. The Court invited public
comment by April 2, 2012, and formal
action on the proposal is expected later
this year.
In its Jan. 2012 Rules Cycle Report,
the New Jersey Supreme Court’s Professional
Responsibility Rules Committee
proposed the following new rule, designated
as Rule 1:21-1(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.
Where We Are and Where We
May Be Going
For now, New Jersey attorneys are
still operating under the current rule,
and there are, of course, no guarantees
the bona fide office rule will change.
While the joint opinion is explicit, following
are several points to guide practitioners
under the current rule.
The heart of the current rule is accessibility
at the physical location. For an
attorney to be in compliance with the
rule, he or she, or someone on his or her
behalf, must be at the physical location
and accessible “during normal business
hours,” with only “occasional”
absences. 12 The joint opinion specifically
states that a receptionist in an officesharing
arrangement does not satisfy
the rule’s criteria, as such a person
“would not be privy to legal matters
being handled by the attorney and
would be unable to ‘act on the attorney’s
behalf’ in any matter.” 13
In the joint opinion, the ACPE goes
so far as to state that “in general, an
attorney should not permit the receptionist
of a ‘virtual office’ to field telephone
calls to the attorney.” 14 The primary
concern is that a client might
assume the receptionist is an employee
of the attorney, and disclose confidential
information.
The rule is clear: An attorney must
either be available at his or her physical
location or must have someone available
at that location on his or her
behalf, and not simply serving as an
answering service or routing phone calls
to voicemail.
There, of course, is gray area in the
rule. What does “occasional” mean?
How many solo attorneys can one
receptionist/staff member work for
before they are considered akin to an
“answering service”? There are no clear
answers to these questions; they are the
areas solos will need to explore when
determining what office arrangement to
choose and how best to comply with
the rule. With respect to the latter, the
key appears to be preserving confidentiality
and the receptionist/staff member
working on clients’ cases having
knowledge sufficient to assist clients if
the attorney is not available.
The authors view these as the most
cost-prohibitive portions of the rule and
the joint opinion, citing that solos, parttime
attorneys and some small firms do
not have the means to pay for the type
of arrangement the rule requires. Believing
that these requirements do not further
the intent of the rule, the authors
argue that the proposed rule changes
should be made.
The joint opinion also provides that
an attorney’s advertising material must
not be misleading regarding the nature
of the physical office location. This
essentially means that if an attorney is
not accessible during regular business
hours, all advertising material must note
that the office is “by appointment only.”
This emphasizes the committees’ interpretation
that a “virtual office” or
“shared office” is not sufficient to be in
compliance with the rule, and that attorneys
are not permitted to advertise as if
they are in compliance with the rule.
Under the proposed rules, much of
the constricting requirements would be
removed. The intent of the rule would
be accomplished without the need for
staffing a physical location throughout
the normal business day. An attorney
would be in compliance if he or she has
a physical location where client files can
be inspected, business and financial
records can be maintained, and service
can be accomplished.
The proposed rule requires that attorneys
provide means for prompt and reliable
communication, as required under
the Rules of Professional Conduct. Cell
phone and email accessibility would easily
satisfy these requirements. Mobile
communication devices and a fixed
office in New Jersey, shared or otherwise,
would ensure compliance under the proposed
rule. It would enable attorneys
with struggling practices or new practices
to get up and running, and enable
attorneys to provide legal services to
clients in a more cost-effective manner.
Penalties
When an attorney is not in compli-
WWW.NJSBA.COM NEW JERSEY LAWYER | June 2012 33

ance with the bona fide office rule, and
that is the sole violation, an admonition
is the common discipline. 15 However, if
an attorney fails to maintain a bona fide
office there may be other violations as
well, such as failing to maintain a
required trust account in a New Jersey
bank. 16 In such a case, a reprimand is
more common. 17 Another significant
ethical breach that could accompany a
bona fide office rule violation is breach
of confidentiality.
Conclusion
In the authors’ view, the bona fide
office rule, as it now stands, disproportionately
affects solo and small-firm
practitioners in the state. Technology
may be changing the manner in which
the Supreme Court chooses to achieve
the requirements of attorney accessibility
and accountability. The proposed rule
would retain these requirements while
allowing virtual offices.
Endnotes
1. Office of Attorney Ethics, State of
the Attorney Disciplinary System
Report, pp.66-67 (2010).
2. Id.
3. In re Kasson, 141 N.J. 83 (1995).
4. 141 N.J. at 86 (citing In re Sackman,
90 N.J. 521, 526 (1982)).
5. See Id. (quoting 90 N.J. at 533).
6. Jill Capuzzo, Balancing Life and
Practice: Bars Battle Back the Bona
Fide Office Rule, New York Times,
2002 at
http://www.lexisone.com/balancing/articles/n092002d.html.
7. Committee on Attorney Advertising
Opinion 19 (1994).
8. ACPE Opinion 718/CAA Opinion
41 (2010).
9. Kevin Michels, New Jersey Attorney
Ethics, section 4:5, pp.48-49 (Gann
Law Books, 2012 Edition).
10. George Conk, We’re All Virtual
Lawyers Now, New Jersey Lawyer,
December 2011, pp.19-23. For an
aggressive critique of New Jersey’s
bona fide office rule by an advocate
of virtual lawyering, see Stephanie
Kimbro, Practicing Law Without an
Office Address: How the Bona Fide
Office Requirement Affects Virtual
Law Practice, 36 Dayton L. Rev. 27
(2010).
11. Cloud computing refers to computer
users sharing resources over a network
instead of purchasing traditional
hardware and installing it at
their physical location. For example,
instead of having a large-capacity
server at their office, a user can
store their data over a network at an
off-site location.
12. ACPE Opinion 718/CAA Opinion
41, pp.2-3 (2010).
13. Id.
14. Id. at p.4.
15. In re Witherspoon, 203 N.J. 343, 359
(2010); Matter of Young, 144 N.J. 165
(1996); Matter of Beck, 143 N.J. 308
(1996).
16. See RPC 1.15; 1:21-6.
17. See Matter of Gajewski, 139 N.J. 389
(1995). See Section 4:5, Michels, New
Jersey Attorney Ethics (Gann Law
Books, Newark, 2000).
Craig M. Aronow is a partner at Rebenack,
Aronow & Mascolo, LLP, and former
chair of the New Jersey State Bar Association
Solo and Small-Firm Section. He practices
personal injury law with offices in
Somerville and New Brunswick. David B.
Rubin, of David B. Rubin, P.C., in
Metuchen, is a solo practitioner and chair
of the state bar association’s Professional
Responsibility and Unlawful Practice Committee.
He primarily practices civil law and
defends attorneys in professional discipline
matters. David H. Dugan III is a solo
practitioner and member of state bar’s Professional
Responsibility and Unlawful Practice
Committee. He defends attorneys in
professional discipline matters and has
offices in Medford.
34 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

Mentor Programs
A Safety Net for Solos
by Mitchell H. Cobert
What if your law firm just let you go and you have no alternative but to set up your own solo
practice? What if you have two toddlers at home, your husband just got laid off, and no law
firm is willing to hire you? We all remember that lonely, exhilarating, exhausting, rewarding,
terrifying (pick two) first year as a solo practitioner. Whether you are a solo by choice or
circumstance, one year or 10 years out of law school, there are always times, even today, when
you need or would love a second opinion or words of advice from someone more experienced.
Following are a few examples of who can benefit from a
mentor program:
EXAMPLE: You are a new associate at a large, prestigious law
firm. You are reviewing thousands of pages of email discovery
prior to production to opposing counsel and you come across
one that appears to be damaging to your client’s interests. The
partner who gave you the assignment directs you to withhold
the email as “non-responsive.” What do you do?
EXAMPLE: You are a newly hired female associate working
for the general counsel of a large, multi-national corporation.
Working late one night, the general counsel makes sexually
explicit remarks you consider highly inappropriate. What do
you do?
EXAMPLE: You have just formed your own law firm as a solo
practitioner and receive a referral for a new client with a
strong personal injury case. You have never handled a personal
injury case and have no experience as a personal injury litigator.
What do you do?
EXAMPLE: You are treading water in your practice, not particularly
successful in business generation, and would love to
concentrate on a particular area of law you have no experience
in. What do you do?
All of the above situations are real, and they are exactly
why mentoring programs have been instituted by the New
Jersey State Bar Association and several county bar associations.
In each case, the confidential advice and guidance of
experienced attorneys (mentors) has helped less experienced
attorneys (mentees) resolve these and other legal and ethical
concerns. What is mentoring? It is an attempt to pass on the
skills, knowledge, wisdom, and practical advice experienced
attorneys have gained over the years to the next generation of
professionals.
One of the mentors in the Morris County Bar Association
program recounted a situation that highlights not only the
benefit of the program to the mentee, but also to the mentor.
Three or four years ago he was introduced to a lawyer who was
‘between jobs.’ The younger lawyer expressed a willingness to
work in whatever capacity was available. The mentor hired
the new attorney to do some research, including the drafting
of an appellate brief, and was very satisfied with the work
done. When the newly admitted attorney went on interviews,
the mentor provided him with a very nice letter of reference.
The newly admitted attorney subsequently found employment
at a small law firm in the area, and several months later
called the mentor to refer a significant matter that could not
be handled by his law firm. They worked on it together with
a very good result, splitting the legal fees in proportion to
their participation.
Associates in firms of any size may hesitate to ask questions
they feel display their lack of knowledge, or that might be
politically sensitive. They may be embarrassed, or shy, or
intimidated. Going back to basics, mentoring is a way to
restore the time-honored system where mature, experienced
senior partners take new associates under their wings and, by
example, show them how to act and what to do. But mentoring
is not meant just for the newly admitted attorney. Attor-
WWW.NJSBA.COM
NEW JERSEY LAWYER | June 2012 35

neys who want to expand their practice
into a new area of law have benefited
from mentor programs by being
assigned to a mentor who practices in
the desired area.
Mentoring is especially important
these days, when more than 40 percent
of all attorneys in New Jersey are in
firms of two lawyers or less. There are no
fees for joining a mentor program, and
it has always been strictly voluntary.
Past and Present New Jersey Mentor
Programs
In 1998, the New Jersey Commission
on Professionalism in the Law developed
a model mentor program. 1 The
commission is a cooperative venture
between the New Jersey State Bar Association,
the New Jersey Supreme Court,
and the state’s three law schools—Seton
Hall, Rutgers–Newark, and Rutgers–
Camden.
The program offered by the commission
in 1998 was intended as a guide to
be used by individual county bar associations.
The commission made available
technical and logistical support in the
form of recruitment letters, sample flyers
and promotional pieces. Goals and
guidelines were established for the selection
of mentors and the recruitment of
mentees. The suggested minimum number
of years in practice for a mentor was
from five to 10. The commission suggested
that each assignment be for one
year, and that the participants, both
mentors and mentees, take part in orientation
sessions with a nice social
function serving as a kick-off.
All of this sounded great on paper,
but how is this worthy program working
today? Unfortunately, it isn’t. Despite
the best of intentions, it is no longer in
operation. Why? Because of lack of participation.
Not enough mentees asked
for guidance, which eventually led to
the program’s demise. The word just
wasn’t getting out.
In its wake, some specialized and
county bar associations have started
their own mentor programs. Today, the
Young Lawyers’ Division of the New Jersey
State Bar Association has its own
mentor program. 2 The requirement for
mentors is 15-plus years of practical
experience, 10 of which should be as
members of the state bar association.
Young lawyers wishing to take advantage
of this program must be members
of the state bar association.
The Hispanic Bar Association of New
Jersey also has a mentor program. It
matches Latino law students with Latino
legal professionals. 3 In one recent
year, the Hispanic Bar Association
received over 50 applications from students
requesting mentors. The website
of the Hispanic Bar Association notes
that the popularity of this program is
due in large measure to the positive
feedback received from past mentees.
Rutgers–Camden 4 participates in a
mentoring program involving its alumni
career network. 5
The Middlesex County Bar Association
offers the Honorable Rosemary
Carcher-Reavy Mentor Program, in
place since the late 1990s. 6 To enroll,
prospective mentees view the biographies
of participating mentors on the
association’s website. The mentee then
selects and contacts a prospective mentor
directly. A few years ago, attempts
were made to generate interest in the
program by having meet and greet
social functions. These were not as well
attended as hoped, and the program is,
despite everyone’s best efforts, only
minimally successful today. Why?
Again, due to a lack of mentees.
The Morris County Bar Association
has had a mentor program in place since
1998. 7 Its stated goal is “to demonstrate
to you [the mentee], first hand, the
civility and demeanor we expect of ourselves,
so we can, together, learn how to
better serve our profession.” From the
beginning of this program, confidentiality
of the identity of the mentees was
viewed as paramount, in order to
encourage mentees to discuss sensitive
issues without fear of retribution, or
embarrassing disclosure. The feedback
from the few mentees who have participated
in this program has so far supported
this decision. Mentees fill out a confidential
questionnaire, which enables
the bar office to match the mentee with
the most suitable mentor.
In Morris County, as in Middlesex,
there has never been a problem obtaining
qualified mentors for the program.
Initially, in Morris County, the requirement
for mentors was at least 10 years
experience, proof of malpractice insurance,
and the intangible of being
known and respected in the legal community.
The requirement for 10 years
experience has been eliminated, however,
because it was found that many
lawyers in practice less than 10 years
were excellent mentors and had skills
(e.g., computer, Internet, and electronic
discovery) that attorneys who were
practicing longer lacked.
Each mentor is assigned for a oneyear
term. If, at the end of that year,
both mentor and mentee agree, the
arrangement can continue for a second
year. Otherwise, there will be a referral
to another mentor.
A mentee’s formal participation in
the program is limited to two years,
although it is hoped that relationships
begun in the program can continue and
flourish. The program is not limited to
members of the Morris County Bar Association;
anyone can become a mentee.
Even so, like Middlesex, this program
has been only minimally successful
because of the small number of mentees
seeking to participate.
Expectations
Before joining a program and selecting
a mentor, mentees should first ask
themselves: Where am I in my career?
Where would I like to be? What are my
strengths and weaknesses? What is the
36 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

specific problem I cannot resolve on my
own?
The more specific the goal or identification
of the problem, the easier it will
be to select the right mentor, and the
greater the benefit to be derived from
joining a mentoring program.
The mentee should be clear in what
he or she wants to achieve from what
hopefully will become described as a
‘relationship,’ since a bond often develops
between the mentor and the mentee
that can lead to a lasting friendship,
referrals to other attorneys, and possibly
even employment opportunities.
Although a specific issue may lead an
attorney to seek a mentor, ultimately
the process is not just about one isolated
issue. More often than not, it will
evolve into questions of law firm management,
work/life balance, ethics
issues, billing, insurance, and other pertinent
concerns.
The mentor, recognizing that the
mentee might feel uncomfortable at
first, should be sensitive to setting the
right tone to put the mentee at ease.
Both the mentor and the mentee should
not hesitate to reach out to the director/chair
of the mentoring program to
resolve any issues that might arise.
Communication is always key. A twoway
relationship involves full participation
by both parties. If there is no chemistry,
there should be a change in
mentors. Additionally, a mentee can
sometimes have multiple mentors,
although most mentor programs limit
participation to only one mentor at a
time. Interaction may be face-to-face, or
it can be by telephone or email. Whatever
arrangement works for the participants
is usually acceptable to those in
charge of administering the program.
The goal is the same: To enable lawyers
to enhance and improve their skills so
they become an integral part of the profession.
When that happens, everyone
benefits.
Six States Have Mandatory Mentor
Programs
If voluntary mentor programs struggle
to get mentees, the question arises:
Should mentor programs be mandatory?
Six states have now made mentor
programs mandatory for new attorneys:
Oregon, Georgia, Utah, South Carolina,
Wyoming and Nevada.
In Nevada, new attorneys do not
have to participate if they have already
practiced in another jurisdiction for at
least five years.
In South Carolina and Georgia the
programs were made mandatory after
trial programs proved overwhelmingly
successful. A survey conducted at oneyear
intervals during Georgia’s two-year
pilot project revealed that “approximately
85% of both the mentors and
beginning lawyers rated the Pilot Project
as satisfactory in varying degrees.” 8 The
survey revealed that career satisfaction
increased over the course of the pilot
project. These mentor programs have
sufficient flexibility to allow “inside
mentors” in firm or organizational settings,
and “group mentoring” if the new
lawyer is unemployed or does not work
in a legal setting. Some elements may be
compulsory, such as advocacy experience,
if the mentee appears in contested
civil or criminal matters, but each program
has flexibility over the specific
areas to be covered. 9
Many States Allow MCLE Credit to
Mentors and Mentees
Openly acknowledging the success of
mandatory mentoring programs in the
six states mentioned above, seven additional
states have edged in that direction
by allowing mentors and mentees
to receive mandatory continuing legal
education (MCLE) credit. Alaska, Arizona,
Colorado, Illinois, Indiana, Ohio,
Texas and Washington allow participants
to earn up to six MCLE credits
each year for participating either as
mentors or mentees. 10
Obtaining the Necessary Forms to
Get a Mentor Program Started
Regardless of how formal or informal
a mentor program is, it is helpful to
send some form of introductory letter to
both mentors and mentees containing
instructions on how to participate and
what to expect. Although they are not
required, any attorney interested in
obtaining a full set of forms can call the
Morris County Bar Association at 973-
267-2089 or email sjohnson@morriscountybar.com.
It is suggested that the length of time
to be assigned to a mentor should be
established and a mechanism should be
in place to replace a mentor if the chemistry
between mentor and mentee is
lacking. Questionnaires can be used at
the outset to gather information for use
in the selection process. Once the questionnaire
is completed and the initial
information is gathered, the director/
chair of the mentoring program can pair
the mentee with the most suitable mentor
in the area of law and/or issue identified.
After a mentor is identified, a letter
can be sent to the mentor providing
the name and contact information of
the mentee, and vice versa.
It should be up to the mentor to
quickly contact the mentee to make the
introduction and to schedule an initial
meeting. The goal should be for all mentor
program administrators to share
their experiences with other mentor
program administrators to improve the
overall process.
Conclusion
Mentoring is an effective way to pass
on skills, knowledge and experience in
order to train the next generation of
professionals. As more and more attorneys
learn of and take advantage of this
valuable resource, and as more and
more states make mentor programs
mandatory and grant MCLE credits for
participation, the advantages should
become even more apparent.
WWW.NJSBA.COM NEW JERSEY LAWYER | June 2012 37

Endnotes
1. The New Jersey Commission on Professionalism:
732-937-7504.
2. The Young Lawyers’ Division of the
New Jersey State Bar Association:
732-249-5000; forms available from
the Young Lawyers’ Division website
under newsletters to members
of the division who sign in using
their member identification information.
3. The Hispanic Bar Association of
New Jersey: www.njhba.org; 202-
223-4777, ext 306.
4. Rutgers Law School-Camden: 217
North Fifth Street, Camden, NJ
08102; 856-225-6375.
5. Rutgers Alumni Career Network:
http://careers1.rutgers.edu/alumni/main.asp.
6. Middlesex County Bar Association:
87 Bayard Street, New Brunswick, NJ
07901; 732-828-3433.
7. Morris County Bar Association: 245
South Street, Unit 1, Morristown, NJ
07960: 973-267-2089.
8. http://bestpracticeslegaled.albanylawblogs.org/211/01/31/mentoringprograms-in-the-u-s/.
9. Id.
10. http://ginascleblog.typepad.com/
ginascleblog/2011/08/growingtrend-mentors-and-mente.
Mitchell H. Cobert is a solo practitioner
in Morristown with an emphasis on securities
law. He is a past president of the Morris
County Bar Association and a member
of the New Jersey Lawyer Magazine Editorial
Board.
38 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

Social Networking Websites
for Business and Exposure
by Kenneth A. Vercammen
The latest way to connect with friends and
obtain business is to establish and maintain
an online presence. There are many free
online websites for attorneys to list their
names, practice areas and contact
information, as well as social media sites
where it is easy to stay connected with old
friends, colleagues and acquaintances and get
your name out to the general public.
The Main Contenders
Facebook is presently the largest free social networking
service and website, where users can create personal profiles,
keep people updated on accomplishments and activities, and
even establish a fan page for their business. 1 Since the site is
most commonly used for social networking among friends, it
is important to remember to keep a professional tone on your
page if you plan to open it to existing or potential clients.
LinkedIn is a business-related social networking site, and
is mainly used for professional networking. As of Nov. 2011,
LinkedIn reported more than 135 million registered users in
more than 200 countries. Members can create business profiles,
and instead of linking ‘friends,’ like Facebook, LinkedIn
users can invite other members to ‘connect’ with them.
LinkedIn also supports the formation of interest groups; as of
March 2011, there were 870,612 such groups with memberships
varying from one to 377,000. 2
LinkedIn boasts that 75 of the Fortune 100 companies are
clients, and that it is the new “global talent marketplace,” and
has, in fact, become an important way to connect and communicate
with clients and other lawyers. 3
Google+ is Google’s attempt to compete with Facebook,
integrating social service sites such as Google Profiles and
Google Buzz. Opened to the public in Sept. 2011, it already
has a user base of 90 million. 4
Twitter is an online social networking and micro-blogging
service that enables users to send and read text-based
posts of up to 140 characters, known as tweets. Many of the
sites listed below will permit the user to forward a tweet to
Twitter for free, setting forth new webpages and page updates.
Twitter now boasts 300 million users. 5
YouTube is a way to get your videos published by uploading,
tagging, and sharing them worldwide. Founded in Feb.
2005, YouTube allows billions of people to watch and share
originally created videos. YouTube provides a forum for people
to connect, inform, and inspire others across the globe. It acts
as a distribution platform for original content creators and
advertisers of all sizes. A one-paragraph narrative can be added
as a description to the video. 6
Free Legal Sites
JD Supra is a repository of free legal information shared by
those professionals who utilize it. Users can create profiles, and
share documents, articles, forms, and pleadings. Users can share
legal documents, court filings, and decisions, whether their
own or relevant to their practice. JD Supra users can also automatically
share documents, with connections, on LinkedIn and
Facebook. 7
Avvo provides a basic listing of all the licensed attorneys in
New Jersey. Once you claim your profile, you can add to it as
often as you want, to give prospective clients, competitors,
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NEW JERSEY LAWYER | June 2012 39

and the media a clear picture of your
résumé and expertise. The website also
includes lawyer-submitted legal guides,
attorney profiles, and unbiased ratings.
Free access draws over 2.5 million visitors
to Avvo every month. The site
draws an enormous pool of consumers
by offering them information on attorneys,
including whether they have faced
any ethical discipline. Attorneys have
the opportunity to reach prospective
clients through free and paid marketing
solutions. Avvo averages more than
160,000 lawyer contacts per month. 8
Justia Lawyer Directory users can
participate in the Justia community by
creating a free account. Claim and
update your Justia Legal Directory profile,
ask or answer questions in Justia’s
Legal Answers, or participate in Justia
Legal Birds and Blawgsearch communities.
By registering, you can also choose
to receive announcements of new free
services. Justia permits attorneys the use
of publications, blogs, Twitter, social
networks, and videos. 9
Martindale.com Connected is a
free site for attorneys to post newsletters
and articles and set up a profile. 10
AttorneyPages.com helps lawyers
gain exposure on the Internet quickly
and at little or no cost, via one of the
respected online directories of consumer-oriented
lawyers. With a focus on
performance, AttorneyPages offers an
affordable law firm marketing solution
that generates good results. 11
Legal Playground is a social networking
website that allows members of
the legal community to connect with
prospective clients. This web application
helps people search for lawyers by
name, organization, practice area, or
location. Thus you, or your client, can
view profiles, photos, videos and blogs. 12
LawPivot is a legal question and
answer website that enables companies,
especially startups, to confidentially
receive legal answers from highly qualified
lawyers for a fraction of the standard
cost. Additionally, the site allows
lawyers to market their legal services by
sharing expert advice and engaging in
discussions. The site’s technology utilizes
a personalized search algorithm to
match companies with relevant lawyers
to provide answers to their specific legal
questions. 13
Meet the Elite allows attorneys,
accountants, insurance agents and
financial planners the ability to create a
free web profile to network and promote
their services. 14
LawLink is a social network for the
legal community with over 8,000 members
nationwide. LawLink states it now
receives over 150,000 visitors a month.
The site consists of four separate but
interconnected social networks: 1) The
Attorney Network; 2) The Expert Witness
Network; 3) The Law Student Network;
and 4) The Law Professional Network.
15
Mylegal.com helps lawyers make
smart buying decisions by offering merchandise
from legal vendors around the
world. 16
Rocket Lawyer, Inc. is an online
legal forms and services company based
in San Francisco. Rocket Lawyer’s primary
service allows users to create,
store, share, and e-sign legal documents
from a single account dashboard. Rocket
Lawyer also connects users with attorneys
for legal document review. Attorneys
can sign on for free and potentially
get cases from individuals who realize
online forms may not solve their problems.
17
Veoh allows users to post short law
videos. 18
Non-legal Sites
Myspace is considered by many to
be the original social networking site;
however, Facebook has overtaken it in
popularity. 19
Flickr users share photos and short
videos. Flickr owner Yahoo claims the
site has a total of 51 million registered
members. 20
Orkut is a social networking site
owned by Google, and has over 60 million
users worldwide. 21
FriendFeed is a real-time feed aggregator
that consolidates the updates from
social media and social networking websites,
social bookmarking websites, blogs
and micro-blogging sites, as well as any
other type of RSS/Atom feed. 22
Gather has 4.5 million monthly
U.S. visitors and 4.4 million global
members who receive their own subdomain
and can publish articles and
share comments. Members can create
groups related to their own efforts or to
any other topic.
Plaxo is an online address book,
which was formerly a social networking
service. 23
Virb.com users receive a personal
profile page where they can post blogs,
photographs and videos. Additionally,
users may add others as friends and send
them messages, as well as update their
personal profiles to notify friends of
their activities. 24
Digg is a social news website that
allows people to vote on stories, either
digging (liking) or burying (disliking)
them. 25
MetaCafe began much like other
video-viewing websites, such as
YouTube or Dailymotion, but has transformed
itself into a short-form video
entertainment site showcasing curated,
exclusive and original premium entertainment-related
video content. 26
Bebo is an acronym for blog early,
blog often. Users receive a personal
profile page where they can post blogs,
photographs, music, videos and questionnaires
other users may respond to.
Additionally, users may add friends and
send them messages, as well as update
their personal profiles to notify friends
about their activities. Bebo is similar to
other social networking sites, like Facebook.
27
MyYearBook is a social discovery
40 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

website providing users the opportunity
to interact and meet new people. 28
StumbleUpon is a discovery engine
(a form of web search engine) that finds
and recommends web content to users.
Its features allow users to locate and rate
web pages, photos, and videos that are
personalized to their tastes and interests
using peer-sourcing and social-networking
principles. 29
Delicious (formerly del.icio.us) is a
social bookmarking web service for storing,
sharing, and discovering web bookmarks.
30
Yelp for Business Owners is a
company that operates yelp.com, a
social networking, user review, and local
search website. Yelp.com claims it has
more than 54 million monthly visitors
as of late 2010. Yelp provides online
local search capabilities for its visitors. A
typical search includes what the user is
seeking (e.g., a barber shop) and the
location from which the search is to be
performed, entered as a specific address,
neighborhood, city/state combination,
or zip code. Each business listing result
contains a five-point rating, reviews
from other site visitors, and details such
as the business address, hours, accessibility,
and parking. Site visitors can aid
in keeping the business listings updated,
with moderator approval, and business
owners can directly update their own
business listing information. 31
Squidoo is a community website
that allows users to create pages (called
lenses) for subjects of interest. Squidoo
had 1.5 million hand-built lenses as of
Oct. 2010. 32
Chamber.com is a business networking
site with approximately 2,000
members. 33
Spoke is a business directory and
social networking site mainly used for
professional networking. The site collects
and aggregates information from
public sources, private databases and
member uploads. 34
Multiply is a social networking service
that allows users to share media—
such as photos, videos and blog
entries—via a ‘real-world’ network. It is
currently the biggest social site in
Southeast Asia, with over 125,000 merchants
and 20 million visitors. In addition
to a profile, users can post videos. 35
YELLOWPAGES.com is an Internet
website operated by AT&T Interactive. 36
Blogs
Blogs represent another way to pursue
a free Internet presence. An attorney
can set up a blog on any type of practice,
and can open up comments to anyone
interested in participating in the
conversation, or only limit comments
to friends/followers.
Blogger is a blog-publishing service,
now owned by Google, which allows
private or multi-user blogs with timestamped
entries. Generally, the blogs are
hosted by Google at a sub-domain of
blogspot.com. It is not social media per
se, but attorneys can permit readers to
comment on their posts. For example,
an attorney who handles primarily
immigration law can add immigration
cases to the blog on a weekly basis.
Potential clients do a Google search, and
since Google owns Blogger, the immigration
law post will appear higher in a
search than an old immigration website.
It is simple to create a free blog in
your practice field. To create a blog:
1. Go to the website www.blogger.
com/start to create a free account.
2. Click “Sign into Blogger” and create
a user name and password.
3. Click on “Create a Blog,” then fill
in the blanks.
4. Then click “New Post” and follow
the instructions.
Other blogging platforms besides
Blogger include TypePod, WordPress
and (for law blogs) LexBlog.
When searching for a blog, keep in
mind that several search engines search
numerous blogs at once, such as Technorati,
Google Blog Search, Feedster, and
Blogdigger. 37 One site with many listings
of interest to law students and lawyers for
information gathering; networking and
jobs; sharing; forums; and miscellaneous
material is Criminal Justice USA. 38
Endnotes
1. www.facebook.com.
2. www.linkedin.com
3. Ryan Johnson, ABA LawPractice.
News, February/March 2012.
4. www.google.com.
5. www.twitter.com.
6. www.youtube.com.
7. www.jdsupra.com.
8. www.avvo.com.
9. www.lawyers.justia.com.
10. http://community.martindale.com
/members/2445864/default.aspx.
11. http://attorneypages.com/lawfirm/59301_2060929.htm.
12. www.legalplayground.com.
13. https://www.lawpivot.com.
14. www.MeetTheElite.net.
15. www.lawlink.com.
16. www.mylegal.com/MyWall/tabid/
81/asuid/47535/Default.aspx.
17. www.rocketlawyer.com.
18. www.veoh.com.
19. www.myspace.com.
20. www.flickr.com.
21. www.orkut.com.
22. http://friendfeed.com.
23. http://myplaxo.com.
24. http://virb.com.
25. http://digg.com.
26. www.metacafe.com.
27. www.bebo.com.
28. www.myyearbook.com.
29. www.stumbleupon.com.
30. http://delicious.com.
31. https://biz.yelp.com.
32. www.squidoo.com.
33. http://chamber.com.
34. http://center.spoke.com.
35. http://multiply.com.
36. www.yellowpages.com.
37. http://jurylaw.typepod.com/deliberations/social_networking.html.
38. www.criminaljusticeusa.com/blog/
WWW.NJSBA.COM NEW JERSEY LAWYER | June 2012 41

2009/50-terrific-social-sites-forlawstudents-and-lawyers.
Kenneth A. Vercammen is an Edison
trial attorney handling criminal, probate,
civil litigation and estate matters. He serves
as the editor of the legal website
www.njlaws.com.
42 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

Enhance Your Solo or Small-Firm Practice With Your
New Jersey State Bar Association Membership
by Richard H. Steen
As a longtime member of the New Jersey State Bar Association, I have had countless
opportunities to get value from my membership and to enhance my practice. When I was
admitted to practice in 1975, one of the first things I did was to join the bar association.
I believe it is an important part of being a professional and becoming a better lawyer.
Many of us made lifelong friends in
law school, and the Young Lawyers
Division of the state bar is also a
place where strong friendships with
colleagues can be forged. As young
lawyers working together (and playing
together) you have opportunities to share insights into
your new role as attorneys and gain valuable tools to help you
become a better practitioner. You can get answers to your
questions about working with other associates and partners in
your firm, client relations and representing your clients in
court. Networking opportunities with other young lawyers
can also allow you to explore new and different practice areas
and other employment opportunities in the law.
Over the years, I have come to value my membership in
many ways. Probably the foremost advantage of state bar
association membership is the ability to network with colleagues
and, through membership in a section or committee,
gain valuable experience and credentials in your practice area.
Active membership in a section or committee is often one of
the best ways to keep current with developments in your practice,
meet and work with other lawyers who practice in your
field and hone your practice skills through working with others
in continuing legal education (CLE) programs, mentoring,
writing and publishing, working on legislative initiatives and
commenting on proposed court rules and initiatives.
Active membership in the section or committee that is relevant
to your practice area is particularly important for solo
and small-firm attorneys, as it creates opportunities to speak
with and learn from other practitioners in a collegial setting,
and can provide you with practical insight into ways to
become a better practitioner and provide more value to your
clients. While practicing in a solo or small-firm setting may
provide more flexibility and control, it tends to be more insular,
and lawyers may feel more out of touch with other practitioners
and with the profession. Participation in bar activities
provides many opportunities to spend time with other
professionals, and can alleviate the sometimes confining
nature of certain practice areas. For those lawyers who are into
social networking, members of the association can communicate
through the state bar’s online communities.
My own involvement in the work of two sections and committees
that were particularly relevant to my practice began
when I was in the corporate world in the engineering and
construction field. At that time, construction law was relatively
new as a separate and distinct practice area, and my
involvement with the Construction and Public Contract Law
Committee, which later became a section, was important for
my growth in the field. I was able to get wise counsel and
advice from knowledgeable colleagues, and was able to
increase my visibility in the field through publishing, speaking
on CLE programs and editing the section newsletter.
The second area of legal practice that was of interest to me
and relevant to the work I was doing was the emerging field
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NEW JERSEY LAWYER | June 2012 43

of alternative dispute resolution. Again,
active involvement in the state bar’s
Dispute Resolution Committee, which
later became the Dispute Resolution Section,
allow me to develop my practice in
this area of the law in a number of ways.
Through my work in the section I had
opportunities to speak and write, and
also to obtain an appointment to the
Supreme Court Complementary Dispute
Resolution Committee, which was
working on many court initiatives to
introduce new alternative dispute resolution
programs in the court system.
When I made the decision in 2000 to
open my own practice, I was able to do
so not only as a result of the substantive
experience I had in construction law
and alternative dispute resolution, but
also because of the practitioners I had
met through the state bar association
and the credentials I gained through my
bar work.
Being able to give back to one’s profession
is an important part of being a
professional. The work of the state bar
association in the context of legislation
and court rules is important to your
practice, your clients, the courts and the
public. Both through lobbying for the
association early in my career, and as
chair of the legislative committee for
many years, I had a first-hand look at
the importance of helping to fashion
legislative initiatives that advanced the
law in many practice areas and helped
to protect the profession and the public.
Many solo and small-firm practitioners
have been particularly hard hit by
the economic problems of the last several
years. New attorneys coming out of
law school, and lawyers who have been
out for a while and find themselves victim
of the economic times, have found
that networking through the state bar
association has provided many opportunities.
Lawyers who are interested in
exploring new areas of practice can
learn a lot about those areas of practice
by participating in the relevant state bar
sections and committees. Lawyers who
are new to solo and small-firm practice
have benefited from joining the Solo
and Small-Firm Section, and have
flocked to the association’s popular
annual Solo and Small-Firm Conference
and Suddenly Solo programs.
In addition to the benefits membership
in the association can provide in
your substantive practice area, joining
the state bar also offers a wide range of
general benefits and services, particularly
to solo practitioners and small firms.
One of the most significant benefits of
membership is access to Fastcase, providing
legal research specific to New Jersey
for free and to all 50 states for only
$195 per year. Association members also
get substantial discounts on a variety of
other products and services, including
continuing legal education through the
New Jersey Institute for Continuing
Legal Education, law office management
software and services, the New Jersey
Law Journal, and services to market
and grow your practice.
The association is committed to
being accessible and relevant to your
practice and your profession, and to
providing real value for its members.
You can access information on all of the
benefits and services of the association
through its state-of-the-art website. The
sections and committees of the association
have online webpages and communities
to enhance rapid communication,
facilitate the exchange of questions and
ideas, share news that is important to
your practice area and provide information
on upcoming events and activities.
I have found my participation in the
work of the New Jersey State Bar Association
to be personally rewarding as well.
The lifelong friendships and acquaintances
I have made through being
involved in association activities, especially
the annual and mid-year meetings,
have been a real treasure. Having
had the honor of serving as the president
of the association was certainly a
highlight of my career. I especially
enjoyed the opportunity to travel
throughout New Jersey and beyond to
meet and spend time with practitioners,
judges and court staff. My long-held
belief that lawyers are genuinely caring,
interested in their clients, enthusiastic
about the practice, hardworking and
generous with their time and energies
was reinforced again and again.
I urge you to take advantage of all of
the benefits of active membership in the
New Jersey State Bar Association. I hope
that you will find the experience as
rewarding as I have, and that your membership
provides you with genuine value
for your practice and your career.
Richard H. Steen is a former president
of the New Jersey State Bar Association and
a solo practitioner in Princeton.
44 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

A Local County Bar Association
Can Help Fill in the Gaps in Your Solo Practice
by Nancy M. Bangiola
Going solo can be an extremely rewarding
way to practice law. I practiced law as a solo
for over 10 years. After enjoying that
challenge, I found myself looking to make a
change; fortunately for me, the position of
executive director of the Morris County Bar
Association opened up, and I jumped at the
opportunity. My experience as a lawyer in a
solo practice has been invaluable to me in my
new career. I also find I have learned things as
the executive director of a local county bar
association I wish I knew when I was
practicing law.
Those of us who choose a solo practice do so
because it provides independence, a sense of
autonomy, and ultimately the freedom to
conduct a law practice in a way that suits our
needs. On the down side, independence can
be isolating. Autonomy can mean fewer
resources and clients. Freedom can translate into a lack of
connection with fellow lawyers and the community.
Joining a local county bar can help fill in those gaps, providing
the solo practitioner with resources and connections
that may otherwise be lacking. Through a county bar association
practitioners have access to a geographically specific
lawyer referral service; the opportunity to take advantage of
ongoing inexpensive local continuing legal education programs;
social interaction and connection to local members of
the Judiciary; access to local lawyers specializing in a range of
practice areas; and a chance to connect with and become
involved in the local community. All of these activities will
enhance and improve a solo’s practice, as well as the pleasure
and enjoyment an attorney garners from that practice.
Lawyer Referrals
One of the most effective ways to grow a client base is
through a a lawyer referral service (LRS). Joining a LRS is simple.
Any county bar association member in good standing,
who has active professional liability insurance, can, for an
additional fee, register with the county bar’s LRS.
The lawyer can choose up to three specialties for which
they would like to receive referrals. The county bar advertises
the service to the public in multiple arenas, and, in the case
of Morris County, receives hundreds of calls for referrals each
week. These calls are fielded by an LRS specialist, who is
charged with ascertaining the nature of the legal question and
then refers to the list of LRS members to provide the potential
client with three attorneys who specialize in that area of law.
The LRS specialist cycles through the lists so each attorney
receives a random, but even number of referrals.
As part of the Morris County LRS arrangement, attorneys
agree to a 30-minute minimal fee consultation with the
potential client. If the call results in retention of the lawyer,
and if the fee in the case is ultimately in access of $750, the
attorney agrees to forward 15 percent to the bar association.
The attorney also agrees to complete and file a biannual
report on the status of the referrals received that year.
Overall, the service provides solo lawyers with access to
members of the public who need legal assistance, but who
may never have found the solo firm on their own.
Continuing Legal Education
As professionals, attorneys have always had a duty to continually
educate themselves and update their understanding
of current trends and changes in the substance and procedure
of the law. Two years ago, that duty was quantified by the
Supreme Court of New Jersey in the form of mandatory continuing
legal education (MCLE). Under Rule 1:42, the
Supreme Court mandated that each attorney practicing in the
state of New Jersey shall complete 24 credits of continuing
legal education in a given two-year period. In addition, the
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NEW JERSEY LAWYER | June 2012 45

Supreme Court requires that four of
those credit hours must be in professionalism
and ethics.
As part of its mandate, the Supreme
Court specifically addressed the need to
provide local, inexpensive, quality continuing
legal education. Local county
bars were encouraged to apply to
become preapproved providers of
MCLE, in the hope they would provide
local and inexpensive quality courses to
New Jersey lawyers. Today, the majority
of specialty and county bar associations,
along with the state bar association, are
now doing just that. These courses are
often taught by local experts in various
practice areas, and are provided locally.
As a result, the opportunity to come
together in small groups and learn from
one another has had an immeasurable
impact on the feeling of community
and collegiality in the bar, particularly
for the solo lawyer.
The MCLE programming offers the
solo practitioner an opportunity to step
out of the office and learn with fellow
lawyers. Lawyers in attendance benefit
from shared questions and concerns
that can be addressed by experts in the
field in a live conversation. Often, local
judges take part in the expert panels,
sharing insight about changes in the law
and practical information about how
the law is put into practice in current
cases. These types of programs help
even the playing field for the solo, giving
him or her the same access to other
views and past experience as the largefirm
lawyer. It has also given practitioners
an opportunity to interact with one
another outside the heat of litigation
and negotiation.
A local county bar association can
also help to even the playing field by
providing opportunities to interact with
county superior court judges on an
informal basis, away from motions, settlement
hearings and trials. County
superior court judges are often lecturers
at local continuing legal education programs.
They are also frequent attendees
of county bar functions. No one is going
to win a motion or gain the upper hand
in negotiations because they said hello
to a given jurist at a social function. But,
casual and cordial interaction does help
remind attorneys and the judges they
appear before that legal matters involve
real people on both sides.
Social Networking
The potential social benefits of local
bar association involvement should not
be overlooked either. It has been said
that the law is a jealous mistress, asking
more and more of a committed practitioner.
Over time, this can leave attorneys
feeling drained and exhausted,
sometimes even questioning the decision
to enter the legal profession.
Because of this, it’s important to break
away from the office, and even the
courthouse, now and then, in order to
achieve a better balance in life.
The friendship and camaraderie of
professionals who understand the stress
and challenges of the law is invaluable.
A good laugh, a shared story, even just a
simple change of scenery, can alter an
attorney’s whole outlook. Coming
together to celebrate one another’s
achievements can inspire practitioners
to accomplish more themselves.
Through this group setting they might
mentor a colleague, or assist in winding
down a practice of an aging or sick
lawyer. These opportunities link practitioners
together, and assure that when
they need help and understanding, it
will be available to them as well.
Give Back to the Community
Finally, local county bar associations
can link attorneys to the community
they serve, and allow the public an
opportunity to see the dignity and professionalism
of lawyers. Now more than
ever, the public needs to gain an understanding
of the critical role of the rule of
law in the American way of life. They
need to see lawyers as the guardians of
the law and as public servants. County
bar associations offer an opportunity to
participate in this mission within the
local community by speaking to the
public, donating time and service to
help litigants, providing pro bono service
to people in real need, and by supporting
local charities and causes. By participating
in a local county bar association,
a solo practitioner can reach beyond the
office and have a greater impact on the
community he or she already serves.
Conclusion
Solo practice can be extremely
rewarding. It provides a lawyer with an
invaluable sense of autonomy, independence
and freedom, while working
in one of the most demanding professions.
But nothing is perfect, and the
choice to go it alone brings stress and
challenges. Local bar associations can
help solo practitioners on the road to
overcome, or at the very least, successfully
manage those challenges.
Nancy M. Bangiola is the executive
director of the Morris County Bar Association.
46 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM

COMMENTARY
In Pursuit of Professionalism Among Business Lawyers
by Gianfranco A. Pietrafesa
As lawyers, we strive to act professionally.
Many of us believe we act professionally in
our practices. But what is professionalism?
How do you describe it? If you act ethically
by following the Rules of Professional Conduct,
are you acting with professionalism?
There is an important difference between ethics and professionalism.
“[E]thics prescribe what a lawyer must do while
professionalism prescribes what a lawyer should do.” 1 Stated
differently, “ethics is a minimum standard which is required of
all lawyers while professionalism is a higher standard expected
of all lawyers.” 2 Therefore, an attorney can act ethically by following
the Rules of Professional Conduct, yet fail to act with
professionalism.
How does an attorney know if he or she is acting with professionalism?
“Professionalism starts from the proposition that there are
often alternative ways of addressing various situations, none of
which, strictly speaking, would violate one of the Rules of Professional
Conduct. The question then becomes what course of
action is the most professional way to address these situations.” 3
The difference between ethics and professionalism can be
illustrated by an example. You represent the seller of business
assets. In negotiations with the buyer’s lawyer, it becomes clear
to you that he does not understand that he should submit a
notice of sale, transfer or assignment in bulk to the New Jersey
Division of Taxation. By failing to do so, the division will not
issue a tax escrow letter requiring the buyer’s lawyer to hold a
portion of the purchase price in escrow, nor will it issue a tax
clearance letter. As a result, the buyer will be responsible for any
state tax liabilities of the seller. What must, or should, you do?
Nothing in the Rules of Professional Conduct obligates you
to notify opposing counsel that the notice should be submitted
to the division. The Rules of Professional Conduct do not
require a lawyer to do the work of his or her adversary. You act
ethically by remaining silent, but your reputation and integrity—two
characteristics of professionalism—will suffer. As a
professional, you should strive toward a higher standard, and
notify your adversary about filing the notice with the division.
Lawyers’ opinions can differ on the subject of professionalism.
Indeed, many lawyers are probably unaware that they
may, or should, do more than simply observe the Rules of Professional
Conduct in the practice of law. In this regard, more
than 25 years ago, the American Bar Association noted:
Lawyers have tended to take the rules more seriously because
of an increased fear of disciplinary prosecutions and malpractice
suits. However, lawyers have also tended to look at nothing but
the rules; if conduct meets the minimum standard, lawyers tend
to ignore exhortations to set their standards at a higher level. 4
Since then, the rigors of practicing law have only intensified,
with lawyering becoming more of a business and less of
a profession. As a result, there has been a continuing erosion
of professionalism among lawyers. Among the factors contributing
to this erosion are:
• The requirement of more billable hours
• An increasing number of lawyers
• Lawyers being less loyal, and moving from firm to firm
• Lawyers having less time to mentor younger lawyers
• Clients retaining attorneys for selected matters, rather than
on a continuing basis
• Use of technology (e.g., email and smart phones) creating
client expectations of instantaneous service from lawyers
• Unrealistic client expectations about results (i.e., winner
takes all) and the amount of legal fees
• Use of technology allowing lawyers to remain in their offices
instead of going out and interacting with other lawyers
• Negotiating and closing transactions remotely (i.e., by
email) instead of in person 5
The decline in professionalism was and is most evident in
the lack of civility and personal integrity among lawyers. It has
spawned the birth of the ‘Rambo lawyer,’ who is alive and well.
A lawyer’s word is no longer his or her bond. Now, even trivial
matters must be confirmed in writing.
What can be done to turn the tide and restore professionalism?
To begin with, lawyers can strive to follow the principles of
professionalism issued by the New Jersey Commission on Professionalism
in the Law. These principles are aspirational in nature,
and designed to assist and encourage lawyers (and judges) to set
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NEW JERSEY LAWYER | June 2012 47

their standards at a higher level. 6
In addition, business lawyers can
observe certain guidelines or principles of
professionalism that have been customarily
followed by many experienced practitioners.
The Professionalism Committee
of the New Jersey State Bar Association’s
Business Law Section is developing such
guidelines, and will be publishing them
as supplemental principles of professionalism
for business lawyers.
The author has drafted proposed supplemental
principles of professionalism.
They are the author’s personal views and
not the official position of the Business
Law Section or its Professionalism Committee.
These principles are not original
or unique to New Jersey. In fact, many of
them are derived from the excellent work
done by other bar associations and professional
organizations, including the
American College of Real Estate Lawyers
(ACREL); the North Carolina Bar Association
Business Law Section; and the Tort,
Trial and Insurance Practice Section of the
American Bar Association. An effort was
made not to repeat the principles that
already appear in the New Jersey commission’s
principles of professionalism.
The author’s proposed supplemental
principles of professionalism for business
lawyers are:
With respect to clients:
1. I will endeavor to understand and be
guided by my client’s lawful objectives
in business transactions.
2. I will endeavor to achieve my client’s
objectives as expeditiously and economically
as possible.
3. I will explain all relevant legal issues
to my client and advise my client of
important legal risks.
With respect to working with other lawyers:
4. I will not make misleading statements
of fact or law, including by
omission or inference.
5. I will endeavor to negotiate, document
and consummate transactions
in an atmosphere of cooperation
and informed mutual agreement.
6. I will strive to draft understandable
documents that reflect the agreement
of the parties and that are
appropriate for the transaction.
7. In negotiations and in the preparation
of documents, I will concentrate
on substance and content, and
not on form or style.
8. When requested, I will clearly mark or
identify for other counsel all revisions
that I have made in all documents.
9. I will disclose to other counsel obvious
drafting errors inconsistent with
the agreement of the parties.
10. In making due diligence requests, I
will endeavor to request only relevant
and necessary documents and
information appropriate to the type
and size of the transaction.
11. When requesting a legal opinion, I
will follow the Golden Rule, and
not ask for an opinion that I would
not give myself.
With respect to the legal profession and the
community:
12. I will keep current in the areas of law
in which I practice and, when necessary,
I will associate with, or refer my
client to, counsel knowledgeable in
another field of practice.
13. I will participate as a speaker in continuing
legal education programs in
the areas of law in which I practice,
and will endeavor to train and mentor
younger business lawyers.
14. I will strive to participate in organized
bar activities to improve business
laws.
15. I will strive to improve business
development by providing pro bono
legal services to deserving individuals,
businesses and nonprofit organizations.
As noted by the Appellate Division of
the New Jersey Superior Court: “The
practice of law is a profession, not a
business.…[and,] the practice of law is
not easy. Attorneys are frequently faced
with difficult decisions. They must
make the right decision.” 7
For business lawyers, making the
right decision should mean striving to
conduct ourselves with professionalism.
Professionalism begins where the Rules
of Professional Conduct end. The New
Jersey commission’s principles of professionalism,
and the proposed supplemental
principles of professionalism for
business lawyers, can serve as guidelines
of conduct for all attorneys.
Endnotes
1. Report of the American College of
Real Estate Lawyers (ACREL) Working
Group on Ethics and Professionalism
(Sept. 27, 2004), at n.9 (citations
omitted; emphasis in original).
2. Chief Justice’s Commission on Professionalism
to the Supreme Court
of Georgia, §10, at 4 (1996) (emphasis
in original).
3. State Bar of Arizona Instructor’s
Manual for the Professionalism
Course (May 9, 2005), at 3.
4. ABA Commission on Professionalism,
In the Spirit of Public Service: A
Blueprint for the Rekindling of
Lawyer Professionalism, 112 F.R.D.
243, 259 (1986).
5. See, e.g., Maryland Judicial Task
Force on Professionalism Report and
Recommendations (Nov. 23, 2003).
6. The principles of professionalism
can be found on the website of the
New Jersey State Bar Association. See
www.njsba.com/resources/njcop/nj
cop-principle-prof.html.
7. Davin v. Daham, 329 N.J. Super. 54,
76 & 78 (App. Div. 2000).
Gianfranco A. Pietrafesa is a member
of Archer & Greiner, P.C., in Hackensack,
where he handles business transactions and
related litigation. He is the immediate past
chair of the Business Law Section of the
New Jersey State Bar Association.
48 NEW JERSEY LAWYER | June 2012 WWW.NJSBA.COM