Criminal Defense Lawyers

New Jersey Section 2C:40A-5 – Additional penalty for attorneys; grade of offense.

New Jersey Section 2C:40A-5 – Additional Penalty for Attorney Misconduct

New Jersey statute 2C:40A-5 provides for additional penalties for attorneys who violate rules of professional conduct related to employers requiring lie detector tests. This law allows the New Jersey Supreme Court to impose sanctions beyond those in the criminal code for attorney misconduct in this area.

Overview of 2C:40A-5

Section 2C:40A-5 is part of New Jersey’s criminal code under Chapter 40A, which deals with employers requiring lie detector tests. The statute reads:

In addition to any other sanction that may be imposed by the Supreme Court, an attorney who violates the Rules of Professional Conduct promulgated by the Supreme Court, with respect to this chapter, shall be guilty of a disorderly persons offense.

This section provides that attorneys can face criminal penalties for violating professional conduct rules related to the practices banned under Chapter 40A. The main rules prohibit attorneys from advising employers to require lie detector tests or psychologically stressful examinations, with limited exceptions.

Violating these rules under 2C:40A-5 is a disorderly persons offense. This is a petty offense in New Jersey, similar to a misdemeanor in other states. It is punishable by up to 6 months in jail and a fine of up to $1,000.

Key Points on 2C:40A-5:

• Applies to attorneys who violate professional conduct rules under Chapter 40A
• Allows additional penalties beyond professional discipline
• Violation is a disorderly persons offense
• Punishable by up to 6 months in jail and $1,000 fine
• Supreme Court imposes professional discipline separately
• Law aims to further deter attorney misconduct related to lie detector tests

So in addition to professional sanctions, attorneys can also face criminal charges for advising employers to improperly require lie detector tests from employees or job applicants.

Background on Lie Detector Laws and Rules

New Jersey law generally prohibits employers from requiring lie detector tests, with limited exceptions such as public law enforcement agencies. Rules of professional conduct also prohibit attorneys from assisting employers in violating these laws.

For example, [RPC 7.3(b)] states that a lawyer shall not assist an employer in conduct the lawyer knows to be illegal, fraudulent, discriminatory or prohibited under rules on lie detector tests. The New Jersey Supreme Court has disciplined attorneys under this rule for advising clients to require such tests.2C:40A-5 serves as an additional deterrent by allowing criminal penalties. The New Jersey Legislature determined that attorney misconduct in this area is serious enough to warrant enhanced punishment beyond professional discipline.

Disorderly Persons Offense

As mentioned above, violating 2C:40A-5 is a disorderly persons offense. This is a low-level criminal charge, but still allows for jail time and fines as punishment. The grading as a petty offense rather than a misdemeanor indicates the conduct involved is not as serious as many other criminal offenses.

However, the potential penalties under a disorderly persons offense are still substantial. As noted earlier, the maximum sentence is 6 months in jail and a fine up to $1,000. Courts also have discretion to impose a term of probation following jail time.

Defendants have the right to a jury trial for a disorderly persons offense. Prosecutors must prove guilt beyond a reasonable doubt, the same standard for more serious criminal charges. Defendants who cannot afford an attorney are entitled to a public defender.

Role of the Supreme Court

An important aspect of 2C:40A-5 is that it allows additional penalties beyond professional discipline by the Supreme Court. The statute states sanctions may be imposed “in addition to” any professional sanctions.

The New Jersey Supreme Court has exclusive jurisdiction to regulate the state’s lawyers under the state constitution. The Court can suspend or disbar attorneys for misconduct under the Rules of Professional Conduct. Violating rules on lie detector tests can and has resulted in suspension of law licenses.2C:40A-5 does not limit the Supreme Court’s authority to discipline attorneys. The Court may still impose sanctions like suspension while attorneys also face criminal charges and penalties. The law provides further punishment through the criminal justice system rather than replacing professional discipline.

Analysis of the Law’s Purpose

What motivated the legislature to enact 2C:40A-5 allowing criminal penalties for attorney misconduct related to lie detectors? Legal experts point to several policy goals behind this law.

First, it aims to provide additional deterrence against attorneys violating the rules. While professional discipline is a deterrent, some lawyers may take the chance if the only consequence is temporary suspension. Facing criminal prosecution and jail time helps further deter violations.

Second, the law enhances public confidence in the legal profession. Allowing criminal charges shows the public that lawyers do not just “police themselves” but can be criminally accountable like anyone else for this unethical conduct.

Finally, the grading as a petty offense shows the conduct is considered less serious than many other crimes. The legislature saw this violation as warranting some punishment but not at the level of a serious criminal offense.

Whether these goals have been achieved through 2C:40A-5 is still subject to debate. But the legislature’s purpose was to use additional punishment to further deter attorney misconduct in advising improper lie detector practices.

Constitutional and Ethical Issues

While 2C:40A-5 aims to serve important policy goals, some experts have raised concerns about the law from a constitutional and ethical perspective. Two potential issues stand out.

First, does threatening criminal penalties infringe on attorneys’ free speech rights? The US Supreme Court has held lawyers’ advice to clients enjoys some First Amendment protection. Arguably, 2C:40A-5 encroaches on attorneys’ freedom to give legal advice. However, the state likely has compelling interests that justify this narrow limitation.

Second, is it appropriate to impose criminal penalties for ethics violations? Arguably, professional discipline should be left to the Supreme Court, while criminal law should focus on public harms. But the legislature has power to criminalize this conduct, and saw the need for extra deterrence here. Still, some contend that professional sanctions alone would suffice.

These issues illustrate that while 2C:40A-5 serves important purposes, there are some ethical and constitutional concerns with imposing additional criminal penalties on lawyer misconduct. There are reasonable arguments on both sides of these issues.

Use of 2C:40A-5 in New Jersey

Since being enacted, 2C:40A-5 has not been widely used to criminally prosecute attorneys in New Jersey. There are a few possible reasons for this.

For one, professional discipline by the Supreme Court remains the primary means of enforcing rules on lie detector tests against lawyers. Additionally, prosecutors retain discretion on whether to bring criminal charges even when discipline is imposed. They may see professional sanctions as sufficient punishment in most cases.

Also, proving a criminal violation requires evidence beyond professional discipline, like knowing intent by the attorney. Prosecutors may believe satisfying this higher standard for a conviction is difficult in many cases.

However, legal experts caution that 2C:40A-5 remains available for egregious cases. They advise attorneys to be aware of potential criminal liability, not just professional discipline, for advising employers to unlawfully require lie detector tests. The law enhances deterrence through the threat of criminal penalties.

Defense Arguments for Attorneys Charged Under 2C:40A-5

For the rare instances when prosecutors do bring charges under 2C:40A-5, defense attorneys have several arguments to raise on behalf of their clients. Possible defenses include:

• The communication was protected free speech under the First Amendment.
• The attorney acted in good faith reliance on a court ruling or ethics opinion.
• The employer’s use of lie detector tests fell under an exception to the prohibition.
• The attorney’s conduct was negligent at most, not intentional or knowing as required.
• Professional discipline is sufficient punishment and criminal sanctions are excessive.

Raising ethics, constitutional, and factual defenses can help attorneys charged under 2C:40A-5 avoid criminal penalties. But ultimately, avoiding misconduct in the first place is the best way for lawyers to steer clear of prosecution under this law.

Conclusion

New Jersey’s Section 2C:40A-5 serves the important purpose of deterring attorney misconduct related to unlawful lie detector tests by allowing criminal prosecution. But the law raises some ethical and constitutional concerns as well in imposing additional penalties on lawyers’ professional violations. Defense lawyers have arguments to raise if prosecutors bring charges under this statute. However, attorneys should be aware of and comply with rules of conduct concerning lie detector tests to avoid discipline and potential criminal liability.