NJ Ethics Committee Blocks Surety's Demand that Attorney Protect Surety

The New Jersey Supreme Court's Advisory Committee on Professional Ethics  reviewed an inquiry  from an attorney who represents the administrator of an estate.  Opinion 719, published today, is binding in New Jersey, though any party affected (or bar association) may petition the state's Supreme Court for review.


The Administrator was required by the Surrogate to obtain a surety bond.  The Administrator, however, had poor credit and the surety companies to whom he applied set conditions  for issuance of the bond.  The conditions included an agreement by the attorney that the attorney  will remain involved in the matter; will pay the bond premiums; will protect the interests of the surety as well as the client administrator; will  provide legal services “for the benefit of the surety”; will exercise joint control over estate assets; and will  notify the surety if the client administrator breaches his or her fiduciary duty.  The inquirer asked whether he may, consistent with the Rules of Professional Conduct, comply with such conditions.  The Committee finds that compliance with these conditions is prohibited by the Rules of Professional Conduct:

An attorney who complies with these requirements becomes a co-fiduciary with the client administrator.  The attorney may not, consistent with the Rules of Professional Conduct, provide legal services to a client administrator under these circumstances. 

Does Madoff's defense attorney have a conflict of Interest?

A convenient exemplar of a government presentation in a "Curcio" hearing under F.R. Crim. Pro. 44 is this letter to Judge Sand, which Judge District Denny Chin (a Fordham alum) ruled upon today.

During the hearing, Judge Chin asked Mr. Madoff to detail his understanding of the conflicts and he did so.

The judge then said: “I find that the conflicts here are waivable. I find further that Mr. Madoff understands his right to conflict-free counsel and is waiving that right, and I find he is doing so knowingly.”

“Mr. Sorkin can continue to represent Mr. Madoff in this matter,” Judge Chin said.

The result was a foregone conclusion - the government was just making sure that Madoff had no ground for later complaint if he comes to regret the guilty pleas which is expected he will enter on March 12.

The Department of Justice has now posted a transcript of the Curcio hearing.

The court also addresses the waiver of indictment, and makes reference to a Pimentel letter. In that document the government lays out the possible sentence the accused faces.