(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
COLEMAN, J., writing for a unanimous Court.
This is an attorney disciplinary matter in which it is alleged that respondent, Albert F. Dalena, was
involved in the unauthorized practice of law by associating with Carlo Maccallini, a foreign attorney who has
not complied with the Foreign Legal Consultant Rule, R. 1:21-9.
Albert Dalena is a New Jersey-licensed attorney who practices law in Madison, New Jersey, under
the firm name of Dalena, Dalena and DeStefano. Dalena & Maccallini is a partnership organized under the
laws of the Republic of Italy and does not maintain a bona fide office for the practice of law in New Jersey.
Maryann T. Sagert, a resident of Illinois, retained Maccallini to settle the estate of her late father, who was a
resident of Italy. Dalena prepared and executed a retainer agreement with Sagert in New Jersey using the
letterhead for Dalena & Maccallini, listing Dalena's law office address in Madison.
Ultimately, a fee dispute arose between Sagert and the Dalena & Maccallini firm. Sagert
subsequently filed a grievance against Maccallini with the District X Ethics Committee (DEC), alleging that
he accomplished nothing while representing her in Italy. The DEC ultimately dismissed the grievance for
lack of jurisdiction over Maccallini. However, during the course of its investigation of the matter, Dalena
provided information to the DEC concerning his relationship with Maccallini. Specifically, Dalena informed
the DEC that Maccallini did not maintain an office for practice as a Foreign Legal Consultant in New Jersey.
Rather, he used Dalena & Maccallini as a convenience for his clients for whom he was doing work in Italy.
Sagert appealed the DEC's dismissal of her grievance to the Disciplinary Review Board (DRB or
Board). Expressing its concern about the propriety of the business relationship between Dalena and
Maccallini, the DRB reversed the DEC's dismissal of Sagert's grievance and remanded the matter to the
Office of Attorney Ethics (OAE) for further investigation. During the course of that investigation, Dalena
informed the OAE that he and Maccallini had considered certification under Rule 1:21-9, but had concluded
that certification was inappropriate because Maccallini was not domiciled in New Jersey, did not have a
permanent presence in New Jersey, did not intend to maintain a bona fide office in New Jersey, and did not
use or intend to use the title of foreign legal consultant.
Before the DRB, the OAE argued that Dalena, through his relationship with Maccallini, assisted in
the unauthorized practice of law because Maccallini was not a certified Foreign Legal Consultant. In
addition, the OAE maintained that Dalena implied that he was engaged in the practice of law in New Jersey
in partnership with Maccallini, in violation of RPC 7.5(d).
The DRB concluded that Dalena engaged in the unauthorized practice of law with Maccallini and
that he used a firm name and letterhead that were misleading. The Board concluded that Dalena's
misconduct warranted the imposition of a reprimand.
The matter is before the Supreme Court pursuant to R. 1:20-16(b).
HELD: Although it is clear that a foreign attorney must be certified under Rule 1:29-1 as a foreign legal
consultant before he or she is authorized to give legal advice in New Jersey, because the issues presented are
of first impression and because major clarifications of the Rule are required, the issue of whether Dalena
committed unethical conduct will not be addressed, and the matter is dismissed.
1. A foreign attorney must be certified under Rule 1:29-1 as a foreign legal consultant before he or she is
authorized to give legal advice in New Jersey. (pp. 9-11)
2. Although it is clear that a foreign attorney must be certified under Rule 1:29-1 as a foreign legal
consultant before he or she is authorized to give legal advice in New Jersey, the Court has never decided
what conduct by a New Jersey attorney while assisting an uncertified, or even a certified, foreign legal
consultant violates our Rules of Professional Conduct. (pp. 11-12)
3. Because of the novelty of the issues presented and because major clarifications of Rule 1:21-9 are
required, the issue of whether respondent committed unethical conduct will not be addressed. Therefore,
this matter will be referred to a committee appointed by the Court to study the issues raised. (pp. 12-14)
The complaint is DISMISSED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
D-
209 September Term 1997
IN THE MATTER OF
ALBERT F. DALENA,
An Attorney at Law.
Argued January 21, 1999 -- Decided February 26, 1999
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
Michael J. Sweeney, Deputy Ethics Counsel,
argued the cause on behalf of the Office of
Attorney Ethics.
Justin P. Walder argued the cause on behalf
of the respondent (Walder, Sondak & Brogan,
attorneys).
Joseph A. Bottitta, President, submitted a
letter in lieu of brief on behalf of amicus
curiae, New Jersey State Bar Association.
This opinion of the Court was delivered by
Coleman, J.
This attorney disciplinary case concerns an allegation that
respondent was involved in the unauthorized practice of law by
associating with Carlo Maccallini, a foreign attorney who has not
complied with the Foreign Legal Consultant Rule, R. 1:21-9.
Respondent was admitted to practice law in New Jersey in
1959. He practices law in Madison, New Jersey, under the firm
name Dalena, Dalena and DeStefano. He has no prior disciplinary
history. Our statement of the facts is taken from respondent's
stipulated facts.
Dalena & Maccallini is a partnership organized under the
laws of the Republic of Italy and does not maintain a bona fide
office for the practice of law in New Jersey. Maryann T. Sagert,
a resident of Illinois, contacted the American Consulate in Rome
seeking an attorney fluent in English and Italian. She was
referred to Maccallini in Italy whom she retained to settle the
estate of her late father who was a resident of Italy.
Respondent prepared and executed a retainer agreement with Sagert
in New Jersey using the letterhead for Dalena & Maccallini, 181
Main Street, P.O. Box 607, Madison, New Jersey, 07940, which is
respondent's law office address.
A dispute arose between the Dalena & Maccallini firm and
Sagert concerning the reasonableness of a $4,646.50 fee charged
for services rendered in connection with the estate matter. That
bill prompted Sagert to file a fee arbitration request against
Carlo Maccallini with the Morris County District X Fee
Arbitration Committee, apparently because the retainer agreement
was executed in Madison, New Jersey and listed the law firm
address as Madison, New Jersey.
The District X Fee Arbitration Committee upheld the entire
fee sought by Dalena & Maccallini. Sagert appealed to the
Disciplinary Review Board (DRB) which vacated the fee
arbitration determination based on a lack of jurisdiction over
one of the parties.
While the fee arbitration was pending, Sagert also filed a
grievance against Maccallini with the District X Ethics Committee
(DEC) on February 15, 1995. Sagert alleged in the complaint that
Maccallini accomplished nothing while representing her in Italy.
The DEC inquired of respondent whether Maccallini had complied
with Rule 1:21-9, and whether Maccallini was associated with
respondent in his law firm. Respondent provided the following
information:
Mr. Maccallini requested my assistance in
contacting Maryann Sagert and an agreement
was entered with Dalena & Maccallini which
was used as an intermediary and convenience
by Carlo Maccallini in Rome. I practice each
day as the Senior Partner of the firm above
listed on this letterhead (Dalena, Dalena &
DeStefano). Carlo Maccallini did not
maintain an office for practice as a Foreign
Legal Consultant here in New Jersey, but he
used Dalena & Maccallini as a convenience for
his clients for whom he was doing work in
Italy. Dalena & Maccallini has no listed
telephone number in any telephone book, or
any law library, legal periodical, Martindale
Hubbel or other publication. Carlo
Maccallini has not held himself out as a
Foreign Legal Consultant, but he has held
himself out as an attorney licensed in the
Republic of Italy to see clients here in the
United States.
Respondent forwarded with the above written explanation a
copy of a newspaper advertisement taken out by Maccallini, which
typically appeared in American newspapers. Respondent explained
that such advertisements
[i]ndicate that Carlo Maccallini is available
for appointments for problems in Italy and is
not associated with the firm Dalena, Dalena &
DeStefano. There is no mention of Dalena &
Maccallini. The practice of Mr. Maccallini
in coming to the United States goes back
about 14 years. Customarily Mr. Maccallini
comes to the United States to see clients for
cases that he has in Italy. He does so twice
a year and generally for three or four day
periods. The total time spent in the United
States seeing clients generally extends not
more than 7 days over a yearly period.
Based on the recommendation of the DEC investigator, the
DEC dismissed the grievance for lack of jurisdiction over
Maccallini. Sagert filed a notice of appeal with the DRB,
stating that, when she retained Dalena & Maccallini, she believed
"that Mr. Maccallini was a part of the firm in New Jersey."
According to Sagert, respondent assured her that she "would have
the 'United States law' to protect her if the job wasn't being
done in Italy."
On January 25, 1996, the DRB reversed the DEC's dismissal of
Sagert's grievance and remanded the matter to the Office of
Attorney Ethics (OAE) for further investigation. On January 26,
1996, the DRB Counsel advised the OAE that the DRB was concerned
about the propriety of the business relationship between
respondent and Maccallini.
By letter dated March 1, 1996, Counsel for the OAE requested
respondent to provide specific information concerning the legal
and financial structure of Dalena & Maccallini. On March 8,
1996, respondent informed the OAE that
[t]here are no written agreements concerning
the association of Dalena & Maccallini. That
relationship is an ad-hoc relationship.
Dalena & Maccallini does not do business in
the State of New Jersey. The office acts as
a convenience for Carlo Maccallini in doing
business in Italy and meeting with American
clients here.
To further explain the financial arrangement between
respondent and Maccallini, respondent supplied copies of bills
given to Sagert. Respondent revised his March 8, 1996, response
to the statement that Dalena & Maccallini is a law firm that has
been in existence for approximately fourteen years and is located
in Rome, Italy. He asserted that the listing of a New Jersey
office on Dalena & Maccallini's letterhead meant that it is
merely a satellite office of the firm
practicing in Italy. The office here in New
Jersey has what is best described as an "ad-hoc" relationship with the Rome office. The
New Jersey office does not constitute a "bona
fide" office as described under our Court
Rules. It serves only the Italian law firm
as a communication center for correspondence
and documents and convenience to American
clients and others who have matters pending
in Italy.
Respondent further explained that the Italian law firm of
Dalena & Maccallini has clients throughout the United States and
that the firm has no New Jersey practice presently or at any
time. Respondent added that
[a]lthough Dalena & Maccallini is not a law
firm which has a New Jersey practice, it
clearly constitutes a "partnership" for
purposes of the practice of law within the
Republic of Italy. I have not, either by
means of expressed statements or by
implication, misled to [sic] the public the
nature of the partnership of Dalena &
Maccallini. It has always been made clear to
our clients that the firm does not have a New
Jersey practice. . . . By way of further
explanation, Carlo Maccallini does advertise
and meet with clients on matters solely
concerning the Republic of Italy. He does
not practice New Jersey law, and any fees
earned by Dalena & Maccallini have to do with
foreign matters.
Respondent stated that he and Maccallini had considered
certification under Rule 1:21-9, but had concluded that
certification was inappropriate because Maccallini is not
"domiciled or has a permanent presence in the State of New
Jersey," he "does not intend to maintain a bona fide office in
the State of New Jersey," and he has not used, and does not
intend to use, the title of "foreign legal consultant."
Respondent admits that Maccallini occasionally meets with
clients in the law offices of Dalena, Dalena & DeStefano,
regarding matters of Italian law. Although there is no New
Jersey Lawyers' Diary listing or telephone number for Dalena &
Maccallini, there is a small plaque at the rear of the Dalena,
Dalena & DeStefano office that reads "Dalena & Maccallini."
The OAE requested that respondent provide copies of retainer
agreements between Dalena & Maccallini and New Jersey residents,
identical or similar to the agreement with Sagert. Respondent
certified that he has no such agreements in his possession
because all retainer agreements with Dalena & Maccallini are kept
in the firm's Rome office. He also certified that there are no
pending matters in which Dalena & Maccallini represents New
Jersey clients pursuant to fee agreements similar to the
agreement between Dalena & Maccallini and Sagert.
The OAE argued before the DRB that respondent committed the
following unethical violations:
1. That he assisted Maccallini in engaging
in the unauthorized practice of law, in
violation of RPC 5.5(b), because Maccallini
was not a certified Foreign Legal Consultant;
and
2. That he implied that he was engaged in
the practice of law in New Jersey in
partnership with Maccallini, in violation of
RPC 7.5(d), based on respondent signing the
fee agreement with Sagert in New Jersey on
the Dalena & Maccallini letterhead that
contained his New Jersey address.
Based on its de novo review of the record, the DRB found
that respondent engaged in the unauthorized practice of law with
Maccallini in violation of RPC 5.5(b) and RPC 7.5(a), and that
respondent also violated RPC 7.5(d), in that he used a firm name
and letterhead that were misleading. The DRB explained the
violations rather succinctly:
Although not cited by the OAE, RPC 7.5(a) is
relevant. That rule states that an attorney
shall not use a firm name, letterhead or
other designation that violates RPC 7.1,
which pertains to false or misleading
communications. Again, one could look at
respondent's letterhead and retainer
agreement and find it misleading, not as to
whether it is a partnership or it has a New
Jersey practice, but as to whether it is a
New Jersey partnership. Accordingly, the
Board found a violation of RPC 7.5(a). For
the same reason, it is clear that RPC 7.5(d)
has been violated. In addition, by not
specifically identifying Maccallini as a
foreign legal consultant, as mandated by R.
1:21-9(e)(7), both in the letterhead and in
the sign "Dalena & Maccallini," respondent
assisted Maccallini in creating the
impression that Maccallini was permitted to
practice in New Jersey within the
partnership.
The DRB concluded that respondent's unethical conduct warrants
the imposition of a reprimand as the appropriate sanction.
Our independent examination of the record convinces us that
some of the legal conclusions reached by the DRB are clearly and
convincingly established by the record. The DRB properly
rejected respondent's assertion that a foreign attorney has the
discretion whether to apply for certification pursuant to Rule
1:21-9 when a certification is required. That rule prescribes
the requirements for a certification and the practice of law in
New Jersey by foreign legal consultants. In relevant part, it
provides:
(a) Certification of Foreign Legal
Consultants. A person who is admitted to
practice in a foreign country as an attorney
. . . and who complies with the provisions of
this rule may be certified by the Supreme
Court as a foreign legal consultant and, in
that capacity, may render legal services
within this state to the extent permitted by
this rule.
(b) Eligibility. In its discretion the
Supreme Court may certify as a foreign legal
consultant an applicant who:
(1) for a period of not less than 5 to 7
years immediately preceding the date of the
application has been admitted to practice and
has been in good standing as an attorney or
counselor at law or the equivalent in a
foreign country and has engaged either (A) in
the practice of law in such country or (B) in
a profession or occupation which requires as
a prerequisite admission to practice and good
standing as an attorney or counselor at law
or the equivalent in such country;
(2) possess the good moral character
customarily required for admission to the
practice of law in this State; and
(3) intends to maintain, within this
State, a bona fide office for practice as a
foreign legal consultant.
(7) use any title other than "foreign
legal consultant"; provided that such
persons's authorized title and firm name in
the foreign country in which such person is
admitted to practice as an attorney or
counselor of law or the equivalent may be
used, provided that the title, firm name, and
the name of such foreign country are stated
together with the title "foreign legal
consultant" and further provided that such
does not create the impression that the
foreign legal consultant holds a plenary
license to practice law in this State.
[Emphasis added].
The rule requires certification by the Supreme Court, among
other things, before a foreign legal consultant can practice law
in New Jersey. The meaning of the word "may" in the rule could
not be simpler or clearer: the Court may or may not grant the
certification, in its discretion. It does not mean, as
respondent contends, that the foreign attorney may or may not
apply for certification, at his or her discretion, and still
practice law in New Jersey. The word "may" is clearly intended
to vest discretionary authority with the Court and not the
applicant. A foreign attorney must first apply for certification
as a foreign legal consultant if he or she wishes to render legal
advice in New Jersey; the Supreme Court then may or may not grant
certification. After being certified, the foreign legal
consultant is not authorized to render legal advice on New Jersey
law, but only on the law of the foreign country in which the
attorney is admitted.
Although it is clear that a foreign attorney must be
certified under Rule 1:29-1 as a foreign legal consultant before
he or she is authorized to give legal advice in New Jersey, the
Court has never decided what conduct by a New Jersey attorney
while assisting an uncertified, or even a certified, foreign
legal consultant violates our Rules of Professional Conduct. The
novelty of issues raised in this case is important because
at the close of this century, unlike at its beginning, lawyers
frequently are called on to participate in or give advice
concerning transactions or events in other countries. For that
reason, we must rethink what is meant by the practice of law in
New Jersey by a foreign legal consultant and the ethical issues
arising from the association of a New Jersey attorney with
foreign legal consultants.
The New Jersey State Bar Association has filed an amicus
curiae brief. It consulted with members of the International Law
Section, the Unlawful Practice Committee, and the Professional
Responsibility Committee, and concluded that Rule 1:21-9 has
fostered a whole host of unanswered (or unanswerable) questions.
We agree with the State Bar that the following are among the most
significant issues that need clarification:
1. When does a foreign attorney need to be
certified under R. 1:21-9?
2. In general, what restrictions should be
imposed on a New Jersey attorney's
relationships with foreign counsel --
those who are certified and those who
are not?
3. How may an attorney advertise or
otherwise make known any relationship
with foreign counsel?
4. May a New Jersey attorney, by
public advertisement or otherwise,
promote the use of foreign counsel
in matters involving the practice
of law in that counsel's
jurisdiction?
6. May New Jersey attorneys use their
offices to fax information from a
foreign attorney's client to that
foreign attorney in the foreign
attorneys own country?
7. May New Jersey attorneys advise their
clients that the foreign attorney will
be available for certain dates for
consultation on matters pending in the
foreign attorney's country?
8. May New Jersey attorneys be reimbursed
for any overhead, i.e., faxing and
mailing, done as an accommodation to the
foreign attorney?
9. Do the answers to these questions depend
on whether or not the foreign attorney
is certified as a foreign legal
consultant?
10. What actions are permissible if the
foreign attorney is certified that are
not permissible if the foreign attorney
is not certified?
Because the issues presented are of first impression and
because we agree that major clarifications of Rule 1:21-9 are
required, we have decided not to address whether respondent
committed unethical conduct. See generally In re Ravich, 155
N.J. 357, 379-81 (1998), (O'Hern, J., concurring in part,
dissenting in part); In re Hinds,
90 N.J. 604, 635-36 (1982).
The Court will instead refer the matter to a committee to study
the problems and make recommendations to the Court. Even if we
were satisfied that there is clear and convincing evidence that
respondent engaged in the unauthorized practice of law with an
uncertified foreign legal consultant, and that respondent's
letterhead is misleading, because the Court has never interpreted
Rule 1:21-9, and because of the numerous important questions
concerning its meaning, this would not be an appropriate case to
impose a public reprimand. We therefore, dismiss the complaint
and refer this matter to a committee to study the issues raised.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, and STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
D-
209 September Term 1997
IN THE MATTER OF :
ALBERT F. DALENA, : ORDER
AN ATTORNEY AT LAW :
The Court having concluded that the matter of the discipline
of ALBERT F. DALENA of MADISON, who was admitted to the bar of this
State in 1959, presents novel issues and that Rule 1:21-9 must be
clarified, and that therefore the Court will not address whether
respondent committed unethical conduct, and good cause appearing;
It is ORDERED that the complaint in DRB 97-204 is hereby
dismissed.
WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at
Trenton, this 26th day of February, 1999.
/s/ Stephen W. Townsend
CLERK OF THE SUPREME COURT
NO. D-209 SEPTEMBER TERM 1997
Application for
Disposition Dismissed
Decided February 26, 1999
Order returnable
Opinion by Justice Coleman