The Certification Exception: Understanding Opinion 745's Impact on Referral Fees
David Bruno, Esq.
Certified Criminal Trial Attorney ??? TEDx Speaker on Reclaiming Time ?? Former Assistant Prosecutor ?? Partner @ Bianchi Law Group ??? National TV Legal Analyst ?? Nothing But The Truth Podcast Host ???
Welcome to Law Life
In this week's Law Life article, I want to discuss a critical topic affecting the legal community: the intersection of certified trial attorneys, referral fees, and the recent controversy surrounding In Re Opinion No. 745 of the Supreme Court Advisory Committee on Professional Ethics.
As someone recognized as a certified criminal trial attorney by the New Jersey Supreme Court since 2013, with recertifications in 2018 and 2023, this issue holds particular significance for me and many of my colleagues.
The Exception to the Rule: Certified Trial Attorneys and Referral Fees
In New Jersey, there's a general prohibition against sharing legal fees. However, Rule 1:39-6(d) provides a notable exception for recognized certified trial attorneys. This exception allows certified attorneys to receive case referrals from lawyers outside their firm and divide fees with the referring attorney, even without regard to services performed or responsibility assumed by the referring attorney.
This exception serves an important public policy goal: ensuring complex legal matters are handled by experienced, qualified attorneys who have demonstrated expertise in their field. The New Jersey Supreme Court recognizes five areas of certification:
1?? Criminal Law
2?? Civil Trial Law
3?? Matrimonial Law
4?? Workers Compensation
5?? Municipal Court
Matrimonial attorneys are excluded from this referral fee exception, making it unique to the other four practice areas.
The Impact of Opinion 745: A Sudden Shift
In March 2024, the Advisory Committee on Professional Conduct issued In Re Opinion No. 745 of the Supreme Court Advisory Committee on Professional Ethics (Opinion 745), dramatically altering the landscape of referral fees. This opinion restricted certified trial attorneys' ability to pay referral fees in two significant ways:
1?? Prohibiting referral fees to out-of-state referring attorneys
2?? Preventing referral fees to attorneys who referred matters due to conflicts of interest
This sudden change created significant concern within the legal community, representing a departure from nearly 45 years of established practice.
The Challenge to Opinion 745
The legal community hasn't taken this change lying down. On October 22, 2024, attorneys appeared before the New Jersey Supreme Court to challenge Opinion 745. Several organizations presented compelling arguments against the opinion's restrictions.
The State Bar Association, through its representative Diana C. Manning , argued that the opinion "created an issue where one did not exist." She emphasized that certified lawyers could pay referral fees to out-of-state attorneys without issue for nearly half a century. The Bar Association maintained that conflicts should be handled on a case-by-case basis rather than through blanket rules that might unnecessarily restrict legitimate referral arrangements.
The New Jersey Association of Justice added another dimension to the challenge. They argued that Opinion 745 creates confusion where clarity once existed in the legal community. Their position emphasized that the opinion doesn't address any real existing problems within the current system. They also highlighted the importance of disclosure in retainer agreements, suggesting that transparency, rather than prohibition, might better serve the public interest.
领英推荐
The Arguments Supporting Opinion 745
The Office of Attorney General, represented by Renee Greenberg , began with a historical perspective, emphasizing that New Jersey has traditionally prohibited referral fees under the Rules of Professional Conduct, with the Certified Attorney Program representing only a narrow exception to fee divisions.
The Attorney General's office further contended that no evidence suggests referrals would cease without monetary compensation. This position challenges the assumption that financial incentives are necessary to ensure appropriate case referrals to certified attorneys.
Central to their argument was the fundamental purpose of these rules: preventing attorneys from receiving fees for mere recommendations without providing substantive services. This position aligns with traditional ethical considerations in the legal profession regarding fee-sharing arrangements.
A Significant Development: The Stay of Opinion 745
In a pivotal development, Chief Justice Stuart Rabner issued a stay of In Re Opinion No. 745 of the Supreme Court Advisory Committee on Professional Ethics on July 23, 2024, suspending its prohibitions until the New Jersey Supreme Court's final decision. This stay effectively maintains the status quo before Opinion 745, allowing certified attorneys to continue providing referral fees to out-of-state attorneys and in conflict situations while the Court deliberates.
Unchanged: New Jersey In-State Referral Fees
Opinion 745 does not affect in-state referral fees. Certified attorneys like myself can still provide referral fees to attorneys in New Jersey for cases in the certified attorney's certified area. That part is not disputed. I am so grateful and appreciative to all the attorneys who trust me and our team of former prosecutors to handle their criminal defense cases throughout New Jersey.
The Value of Certification
Despite these challenges, the certified attorney program continues to serve its fundamental purpose: ensuring that complex legal matters are handled by attorneys who have demonstrated expertise in their field. My certification as a criminal trial attorney represents years of dedication, experience, and commitment to excellence in criminal defense.
The Path Forward
The stay of Opinion 745 provides temporary relief to the legal community, allowing established referral practices to continue. However, the ultimate fate of these referral fee arrangements still hangs in the balance as we await the Supreme Court's final decision. This interim period offers an opportunity for the legal community to consider further and discuss the implications of any potential changes to the referral fee system.
Resources and Further Reading
Each week, I share resources that I discuss. Here are some valuable resources for learning more about certified attorneys, Opinion 745, and attorney wellness:
Engage with Law Life
I hope this insight into the current debate over referral fees and certified attorneys helps clarify this complex issue. If you found this helpful, please share it with colleagues who might benefit from understanding these important changes in our profession.
Thank you for joining me for another issue of Law Life. Keep up the Momentum!
Miss An Article? Catch Up on Past Articles:
People-Driven COO | Entrepreneur | Building High-Performance Teams | Expert in Recruiting, Onboarding, Culture, & Accountability | Leading People-Centric Business Strategy & Operations
4 周As always, a great advocate for the legal industry and keeping it moving in the right direction David Bruno, Esq.!
Family Law and Criminal Defense Attorney, Owner of Mulembo Law PLLC
4 周What is the rationale for prohibiting referral fees to out of state attorneys?
Producer. VP, Marketing @ CloudLex. Editor @ Trial Lawyer's Journal.
4 周Do you think this is more in response to non-lawyers or out-of-state "law firms" coming into New Jersey? Or is 745 about old school, lawyer-to-lawyer referrals?
Paralegal- The Bianchi Law Firm, LLC
4 周Very informative
Criminal Defense Attorney at The Bianchi Law Group, LLC; Former Deputy Bureau Chief/Senior Assistant District Attorney, Brooklyn District Attorney’s Office, New York
4 周Very interesting and important topic!