Capitol Report

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.

November 18, 2024

NJ Assembly Committee Considers Electronic Public Meetings 

The New Jersey Assembly State and Local Government Committee approved a bill that would allow for electronic meetings under the Sen. Byron M. Baer Open Public Meetings Act (OPMA). A1858 (Conaway)/S228 (Smith) would revise current law, which only allows for remote meetings during a state of emergency, public health emergency or state of local disaster emergency. The New Jersey State Bar Association is monitoring this bill.  

The bill would permit any meeting a public body holds, as defined under the OPMA to be held electronically as long as it is open to the public consistent with current law.   

Judicial Council Approves Juvenile Detention Procedures  

The New Jersey Administrative Office of the Courts updated the electronic complaint system for complaint-warrants for juveniles who are not in custody, but where law enforcement seeks detainment. Since the adoption of Rule 5:21-1(c), which became effective Sept. 1, these complaint-warrants were handled manually.  

Under the new rule, if a youth is not in custody and law enforcement intends to detain the youth for a delinquent act, law enforcement must initiate the complaint in the electronic complaint system and submit the draft complaint to the county prosecutor for review and approval before submitting it to court. Afterward, law enforcement must contact the family division’s court intake staff to arrange for immediate judicial review of the complaint to determine whether probable cause has been established and/or whether to issue a custody warrant.  

For more information on the change, click here. 

Elections Yield Few Surprises in New Jersey Down Ballot Races 

In New Jersey, races for United States Senate and Congress went as predicted with Andy Kim taking the helm as New Jersey’s first Korean American senator to hold the office. Kim defeated Curtis Bashaw in a race to take the seat of former Sen. Bob Menendez. Menendez was found guilty of bribery and awaits sentencing. He stepped down in August, allowing Gov. Phil Murphy to appoint his former Chief of Staff, George Helmy, to the post.  

In Congress, New Jersey welcomes two new members, Nelida “Nellie” Pou and Herb Conaway. Both Pou and Conaway leave the state Legislature where they served as senator and assemblyman respectively. Pou succeeds Rep. Bill Pascrell, who died in August. Conaway takes over Kim’s seat in Congress.  

Donald Norcross, Jeff Van Drew, Christopher Smith, Josh Gottheimer, Frank Pallone, Thomas Kean Jr., Rob Menendez, LaMonica Iver, Mikie Sherrill, and Bonnie Watson Coleman all return to Congress. Norcross, Gottheimer, Pallone, Menendez and Sherrill are attorneys.  

November 11, 2024

Heavily Debated Freedom to Read Act Remains on Governor’s Desk

The New Jersey Legislature sent a bill to the governor that would establish requirements for library material in public school libraries and public libraries and establishes protections for school library staff members and librarians. S2421 (Zwicker)/A3446 (Drulis) awaits Gov. Phil Murphy’s approval. The New Jersey State Bar Association did not take a position on this bill, but closely monitored its movement.

“In recent years, public and school libraries have come under attack by a small number of individuals hoping to erase diverse materials from bookshelves, usually targeting works focused on race and LGBTQ+ themes. Today, New Jersey stands firmly in defense of the freedom to read and the importance of inclusive educational spaces,” said Sen. Andrew Zwicker.

The bill was heavily debated in committees and during voting with opponents voicing concerns that the bill would permit “obscene books and materials.” Sen. Joe Pennacchio, a vocal opponent, stated his concerns on the Senate floor before the 24-15 vote by the Senate. Sen. Jim Holzapfel and Assemblymen Greg McGuckin and Paul Kanitra expressed similar concerns, calling the bill a measure to “give New Jersey bureaucrats more control over local schools and public libraries.”

Not all Republicans were opposed to the bill. Sen. Jon Bramnick voted in support of the bill because it establishes standards and guidelines for what materials are made available to students in school libraries. Pointing out that the bill preserves a parent’s rights to request removal of materials from libraries and requires local school boards to create a procedure to process those requests, Bramnick was encouraged that “questionable provisions were removed” from the bill throughout the legislative process.

Senate Judiciary Committee Considers Reproductive Rights Bill Package

The Senate Judiciary Committee considered the “Reproductive Freedom and Health Equity” bill package to protect and expand access to reproductive care in New Jersey. The bill package sponsors, Senate President Nicholas Scutari and Senate Majority Leader M. Teresa Ruiz, introduced S3492 to provide funding to train health care professionals who provide reproductive services and enhance security and operations at reproductive care facilities; S3493 to require affirmative written consent for certain entities to disclose a person’s medical information, with limited exceptions; and S3494 to require four-year public institutions of higher education to develop and implement a comprehensive reproductive health services plan. The NJSBA is closely monitoring these bills.

The bill package comes on the heels of the reversal of Roe v. Wade, according to the sponsors. “New Jersey is not only affirming its commitment to reproductive rights but solidifying itself as a national leader in the delivery of these services,” Scutari said. Ruiz underscored the purpose of the bills to fund reproductive health care services and “creating a more equitable system where high-quality, private, and safe care is accessible to every community in New Jersey.”

Around the country, states have put the issue on the ballot. Missouri voted to amend its state constitution to protect abortion rights. Arizona also approved a measure to establish a fundamental right to abortion. Montana, Nevada, Colorado, New York and Maryland all voted to enshrine abortion rights in their state constitutions. Measures in South Dakota, Nebraska and Florida fell short, leaving the abortion ban in place.

November 4, 2024

Bill to Move Contempt of Domestic Violence Representation to Public Defender Passes Senate

The Senate adopted S2437 (Pou), which would direct the Office of the Public Defender to represent people who cannot afford counsel and have been charged with contempt of domestic violence cases. The bill is central to the New Jersey State Bar Association’s recommendations to abolish the Madden system of random assignments for individuals who cannot afford counsel.

“This bill ensures that litigants who have a constitutional right to counsel, but cannot afford counsel, receive equal access to justice through effective counsel as well as the support necessary to avoid repeat offenses,” the NJSBA stated in its written remarks.

Contempt of domestic violence cases represent the largest share of assignments to New Jersey attorneys under the Madden system. This system, a result of the state Supreme Court’s ruling in Madden v. Delran Twp., authorizes judges to assign New Jersey attorneys, regardless of their experience, to matters where there is a constitutional right to counsel. The NJSBA issued a comprehensive report urging the Judiciary to reconsider this system of random assignments, calling the system “an obstacle to equality.”

“While the current system provides representation, it does not provide people who are indigent with equal access to justice,” the report states.

The Court convened the Judiciary Working Group on Attorney Pro Bono Assignments, which issued its own recommendations. Its report relied heavily on the NJSBA’s report. A full copy of that report may be found here.

Legislature Stops Short of Sending Child Support Bill to Governor  
The Assembly stopped short of voting on the Equitable Outcomes in Child Support Collection Act, a bill designed to remove barriers to reunification of parents and children in the care of the state Division of Child Protection and Permanency (DCPP). S2331 (Ruiz)/A3517 (Speight) passed the Senate last week with 10 senators opposing the bill and one senator abstaining. The NJSBA supports this measure and previously called upon the Administrative Office of the Courts to issue a directive providing guidance about child support orders in these circumstances.

The law would suspend the enforcement of child support obligations when a child is in the care or custody of the DCPP. Currently, the DCPP seeks reimbursement from families for child support, which collection efforts often surpass the amount of child support. The bill is part of an effort to align with policies issued in 2022 by the U.S. Children’s Bureau, which allows agencies to narrowly define when it is appropriate to seek child support. If passed, New Jersey would join six states that have adopted similar laws.

“Efforts to collect child support on behalf of children who have been removed from their parent’s custody are often counterproductive,” said majority leader and prime sponsor of the bill, Sen. M. Teresa Ruiz. “Not only does the state spend more seeking reimbursement than they actually collect, the added financial burden, and possible legal consequences for the parents, can often prove to be a barrier for reunification even when it is the desired outcome and in the child’s best interest.”

Both Houses Approve Pediatric Mental Health Care Resources Study
The Legislature passed a bill that would assemble a group of stakeholders to create a “comprehensive visual journey map” that outlines families’ experiences in obtaining mental health care and related support services for their children. S3611 (Scutari)/A4970 (Carter) provides a grant to study pediatric mental health with an aim toward understanding and addressing barriers to receiving pediatric mental health care in New Jersey. The NJSBA supported the measure as an important step to understanding pediatric mental health, “especially where it intersects with the legal system.” The bill heads to Gov. Phil Murphy’s desk.

October 28, 2024

NJSBA Advocates Before Supreme Court for Reversal of Ban on Out-of-State Referral Fees

The New Jersey State Bar Association urged the Supreme Court to reconsider the Advisory Committee on Professional Ethics’ (ACPE) Opinion 745 banning the payment of referral fees by court-certified attorneys to out-of-state attorneys. The Association appeared as amicus curiae arguing that the ACPE erroneously considers this payment a fee for legal services rendered in violation of the Rules of Professional Conduct 1.5(e). NJSBA Treasurer Diana C. Manning argued the matter on behalf of the NJSBA. Manning, Christina Vassillou Harvey and Kyle A. Valente authored the brief.

Calling the opinion a solution in search of a problem, Manning reiterated the Association’s argument that referral fees in this construct are an exception to the general rule prohibiting the division of a fee by and between lawyers who are not in the same firm. “Such a referral fee is one of the privileges granted to certified attorneys by the Supreme Court and the New Jersey Board on Attorney Certification in recognition of their ‘education, experience, knowledge and skill for each designated area of practice,’” the Association said in its brief, citing to R. 1:39-6.

The Court questioned the ACPE’s interpretation of the Rules of Professional Conduct, specifically as to the delineation between New Jersey attorneys versus out-of-state attorneys.

The NJSBA was among several entities challenging ACPE’s Opinion 745, including New Jersey Association for Justice, the Trial Attorneys of New Jersey, the American Board of Trial Advocates, Blume, Forte, Fried, Zerres & Molinari, and Bergen, Essex, Hudson and Middlesex county bar associations.

Manning asked the Court to “go back to where we were prior to March,” emphasizing that the ACPE opinion created a problem that did not exist.   “Ethics rules should not be a trap for the unwary,” she said. “Attorneys should be able to rely on the plain language of the Rules.”

The Court stayed Opinion 745 pending a disposition.

Rule Amendments Require Additional Attorney Certification to Aid in Increasing Court Transparency and Public Access

The Supreme Court issued an order relaxing and supplementing Rule 1:38 regarding public access to court and administrative records and R. 2:6-9 regarding inadequate appendices or briefs. The revised rules require a party who files a document or pleading in a public court matter in the Supreme Court or the Appellate Division to certify to the court that the submission contains no confidential information or confidential personal identifiers. To support the timely posting of briefs and motion briefs in the Appellate Division, the Court relaxed rules 2:6-1(c), 2:6-6(a) and 2:8-1(a), the briefs and motion briefs “shall be filed separately from appendices.”

This order represents an Administrative Office of the Courts (AOC) effort to evaluate its operations to increase transparency and improve public access to the court system. In its announcement on Sept. 3, the AOC outlined initiatives including posting all publicly filed briefs for matters being argued before the Court on the Judiciary’s website at least five days before oral argument and to livestream oral arguments before the Appellate Division.

The AOC continues to explore ways to expand access, including to matters at the trial court level.

Click here to review the announcement. Click here for a full copy of the amended court rules.

October 21, 2024

NJSBA Efforts Help Create Path to Reinstatement after Disbarment

The state Supreme Court’s approval to provide a path to readmission for disbarred attorneys ends a years-long New Jersey State Bar Association campaign to address the state’s disproportionate punishment for certain attorney behaviors. The Association applauded Tuesday’s Administrative Determination from the Court to implement a reinstatement process. New Jersey joins 41 other states and the District of Columbia “that permit a disbarred attorney to apply for readmission after serving a lengthy term of disbarment and satisfying other ameliorative and rehabilitative conditions,” according to the Supreme Court’s Report by the Special Committee on the Duration of Disbarment for Knowing Misappropriation released last week.

“New Jersey’s prior approach did not account for those limited circumstances when an attorney’s conduct was caused by addiction, illness or personal struggle and where no member of the public was harmed,” NJSBA President William H. Mergner Jr. said. “The path to readmission outlined by the Court today provides appropriate guardrails that protect the public while continuing to hold attorneys to the highest ethical standards.”

The Court’s determination overturns 45 years of precedent resulting from its holding in In re Wilson, 81 N.J. 451 (1979), which created a bright-line rule that any lawyer who knowingly misappropriates client funds under any circumstances will be disbarred. “Wilson effectively eliminated any consideration of personal circumstances or mitigation in knowing appropriation cases,” said the Court in its report. The NJSBA viewed the Wilson Rule, as it became known, as a harsh punishment for some attorneys – a sentiment the Association has shared with the Court in its amicus filings, letters to the Court and ultimately in a recommendation emanating from a study on lawyer well-being.

In re Wade, 250 N.J. 581 (2022) brought to light the expansive definition of “knowing misappropriation of client funds” that resulted in an attorney with no prior discipline who fully cooperated with the Office of Attorney Ethics (OAE) being disbarred permanently. In its amicus curiae brief in Wade, the NJSBA highlighted the irony of the disproportionate punishment of disbarment where clients’ monies were not drawn for personal use, but the attorney allocated monies to the wrong accounts in an attempt to compensate for fees drawn or sloppy bookkeeping.

The attorney, Dionne Wade, admitted to not keeping her financial books accurately because of a lack of knowledge as to how to track them. An OAE audit  found that Wade’s practice of depositing attorney’s fees in a trust account, and drawing the money only as she needed it for her business account, led to temporary shortages in accounts which she cured by depositing money back into those accounts. While no client was harmed, the OAE characterized these transactions as Wade borrowing client funds, rather than correcting or curing an overdraft.

In its brief in Wade, the NJSBA urged the Court to seek “greater clarity and a clear delineation that eliminates an aggressive application of the Wilson Rule beyond the situations of thievery and fraud to which it has justifiably been applied and limited.” Nevertheless, the Court upheld the decision to disbar Wade, but ordered a committee be convened to consider evaluate “whether disbarment for knowing appropriation should be permanent.”

In 2023, under then-NJSBA president Jeralyn L. Lawrence, the Association created the Putting Lawyers First Task Force to identify ways to improve the legal profession. Chief among its recommendation was to create a pathway to readmission. Lawrence was invited to participate on the Supreme Court’s Special Committee and shared   research, developed by the NJSBA, about the treatment of similarly situated attorneys in other jurisdictions, the treatment of attorneys in New Jersey, case law and other relevant information.

The Supreme Court’s order creates a new Rule 1:20-21A which outlines criteria to file a petition for readmission to the bar, which may be done beginning 40 days prior to the expiration of five years from the effective date of disbarment. A copy of the Administrative Determination may be found here. A copy of R. 1:20-21A may be found here. For a copy of the Putting Lawyers First report, click here.

October 14, 2024

U.S. Supreme Court Weighs Prevailing Party Standards, NJSBA Participates as Amicus

The United States Supreme Court heard oral argument on the whether merits-based preliminary injunctions that materially alter the relationship between the parties can constitute a basis for a “prevailing party” designation for the purpose of attorney’s fees. The New Jersey State Bar Association joined parties in requesting certification of the question in the matter of Lackey v. Stinnie, No. 23-621, to urge the Court to affirm the Fourth Circuit’s en banc decision conferring prevailing party status on the plaintiffs. The Association did not participate in oral argument. Justice Gary Stein (Ret.) wrote the brief with assistance from Dominque Kilmartin, NJSBA past-president Robert B. Hille, Peter J. Gallagher and James A. Lewis, V.

“The winner of an unreversed favorable judgment and tangible relief from the court is a prevailing party under Section 1988,” Brian D. Schmalzbach, attorney for the plaintiff-respondents, said before the Court.

The Fourth Circuit was the only holdout, finding that a preliminary injunction did not confer prevailing party status under Section 1988. It reversed itself following the plaintiffs-respondents’ appeal of the District Court’s decision to deny attorney’s fees based on the Fourth Circuit’s holding that established a bright line rule that preliminary injunction awardees are not prevailing parties.

The underlying matter involves a challenge by plaintiffs against the Commissioner of the Virginia Department of Motor Vehicles to the constitutionality of a statute that required courts to suspend a convicted criminal’s driver’s license for failure to pay court-ordered debts. The plaintiffs sought and were awarded a preliminary injunction to enjoin the Commissioner from enforcing the statute in a “detailed and well-reasoned opinion” that concluded the plaintiffs “had demonstrated a substantial likelihood of succeeding on the merits of their claim.” the NJSBA said in its brief.

The trial was stayed over the objection of the plaintiffs pending legislative action on the statute. While the preliminary injunction was in effect, the Virginia General Assembly passed a law suspending enforcement of the statute, ostensibly rendering the lawsuit moot. Following the District Court’s denial, the Fourth Circuit granted a rehearing en banc and in a 7-4 ruling it reversed and remanded the matter.

The NJSBA argued that the result to affirm the Fourth Circuit’s en banc ruling “is a matter of common sense and simple fairness” because but for the stay of the trial sought following the issuance of the preliminary injunction, the respondents “undoubtedly would have succeeded at trial and secured a Final Judgment.” It further argued that the other Circuit Courts of Appeals decisions upholding prevailing party status in preliminary injunction matters in certain circumstances begs the Court’s decision to affirm to reinforce the Circuit Courts’ “remarkably uniform and harmonious” decisions on the issue.

“This Court should credit its own jurisprudence as the source of the Courts of Appeals’ unanimity on the issue posed by this matter, and affirm the sound and eminently sensible disposition by the Fourth Circuit,” the NJSBA said in its brief.

The oral argument can be heard here. The briefs can found here.

District Ethics Committee Volunteer Attorneys Sought

The Office of Attorney Ethics (OAE) seeks a volunteer to serve as secretary to the District Ethics committees (DEC) in Bergen and Essex counties. The position requires the attorney to perform specific duties including record keeping of all DEC proceedings; maintaining files of all inquiries and grievances received and investigations undertaken; and timely responding to inquiries from the OAE, the public, attorneys, courts, DEC officers and members, and/or interested parties about the ethics process and attorney discipline system.

The attorney will receive four continuing legal education credits that satisfy an annual pro bono service Madden exemption as well as reimbursement for costs and expenses. Those interested may access the Notice to the Bar here to apply or for further inquiries.

October 7, 2024

Madden Assignment Bill Expected To Move Out Of Committee, Faces Full Senate Vote

A bill that would move contempt of domestic violence matters from the Madden assignment list to the Office of the Public Defender is being considered by the Senate Budget and Appropriations Committee on Monday. S2437 (Pou)/A4471 (Ramirez) already passed the Senate Judiciary where Public Defender Jennifer Sellitti testified that her office supports the move and asked for funding. The New Jersey State Bar Association strongly supports this bill as one of its key recommendations in a report calling for the abolishment of Madden assignments.

In 2021, the Association issued a report – Achieving Effective Representation in Right to Counsel Matters – which included 13 recommendations to address the state’s constitutional obligation to provide effective assistance of counsel to individuals who have a right to counsel, but are unable to afford one. Among those recommendations is to move contempt of domestic violence matters, which make up the majority of Madden assignments, to the Office of the Public Defender because those cases are more aligned with their current work. The NJSBA consulted with then-Public Defender Joseph Krakora on the issue.

“Specifically, Public Defender Krakora agrees that the OPD is best positioned to provide effective counsel in [contempt of domestic violence matters] for which the [NJSBA Right to Counsel Committee] recommends authorizing legislation and additional funding for the OPD,” said the NJSBA in its report. Other recommendations have since been implemented, including having the OPD represent individuals in parole matters and an increase in pool attorney fees.

Madden assignments arose out of the holding in Madden v. Twp. of Delran, 126 N.J. 591 (1992) when the Supreme Court held that indigent defendants are entitled to representation and urged the Legislature to take action, but stopped short of ordering such action. Instead, the Court created the current Madden system providing a random appointment of counsel to represent individuals who could not afford counsel and who are facing a consequence of magnitude. The Court recognized that this was a stop-gap measure until the Legislature acted.

Following the release of this report, the Supreme Court undertook its own Working Group on Attorney Pro Bono Assignments, which acknowledged and relied heavily on NJSBA’s report for its own recommendations. The NJSBA continues to monitor steps toward ending Madden assignments declaring it an “obstacle to equality.”

“Principles of fundamental fairness dictate that if representation is constitutionally mandated, that representation must be effective,” said the NJSBA in its report. “Implementation of its recommendations will ensure that the promise of equal justice and due process in matters of fundamental rights is no longer illusory for people in need.”

For a full copy of the NJSBA report as well as the Supreme Court’s report, click here.

Equitable Outcomes in Child Support Collection Act Up for Consideration Next Week

The Senate Budget and Appropriations Committee will consider S2331 (Ruiz)/A3517 (Speight), which would stop the collection of child support or any unpaid outstanding arrears by the NJ Division of Child Protection and Permanency (DCPP) during the period of time while the child is in DCPP’s care or custody. The NJSBA supports this bill because it advances the objective that parents who are working to reunify with their children will not be precluded from achieving the goals of reunification and stabilization due to state-imposed child support obligations.

The Association urged the Supreme Court to consider a rule change to implement this practice; however the Courts have referenced pending legislation to achieve this goal. The Association continues to monitor this bill.

eCourts Now Available for Chancery Filings      

The Supreme Court encouraged attorneys to file pleadings and other documents in cases pending in the Superior Court, Chancery Division, General Equity, through eCourts starting Oct. 1. Guidance on how to file through eCourts is available on the Judiciary’s website.

September 30, 2024

 Hoffman Gets Nod for Supreme Court from Senate Judiciary Committee

The Senate Judiciary Committee unanimously voted to approve the nomination of John Jay Hoffman to succeed Justice Lee Solomon on the Supreme Court. Hoffman is expected to take the bench following the Senate vote on Monday.

“Judging was about the people, their stories and their lives,” said Hoffman to the Senate Judiciary Committee, recalling advice from 6^th Circuit Court of Appeals Judge Albert J. Engel, Jr. for whom he clerked. “And we owed it ourselves to think as much about them as we did about legal precedent.”

Hoffman recounted his experience in Japan where he was a post-doctoral fellow at the University of Tokyo Law School, to a clerkship on the 6^th Circuit Court of Appeals, to private practice, the U.S. Department of Justice and then the U.S. Attorney’s Office. He was acting attorney general for three years until he returned to private practice. He is general counsel to Rutgers University.

The Senate Judiciary Committee also considered the nomination of Michael S. Mikulski, II of Southampton. Mikulski also awaits a vote of the Senate on Monday to confirm his nomination.

Dentist and Dental Hygienist Compact Passes Assembly

The Assembly voted favorably on A1896 (Conaway)/S702 (Singer), which would adopt a Dentist and Dental Hygienist Compact to allow out-of-state dentists and hygienists to practice in New Jersey. The New Jersey State Bar Association is monitoring the bill.

“New Jersey is limited in the number of dental hygienists we can produce, which makes it difficult for dentists to practice,” said Assemblywoman Michele Matsikoudis, a prime sponsor of the bill. “These labor shortages are creating delays in important preventative dental treatments. When patients are unable to get the care they need, New Jersey needs to find a solution.”

The bill allows those licensed dentists and hygienists to enter a compact separate from their licensing requirements in order to practice in New Jersey. The bill drew support from several organizations, but drew concerns from the American Association of Dental Boards, which recommended amendments to ensure that those who are permitted to practice in New Jersey undergo a hand skills test and clarify who has authority over the privilege holders under the compact.

The bill is pending in the Senate Health, Human Services and Senior Citizens Committee.

September 23, 2024 

Bill Expanding Admission of Prior Act Evidence Draws Concerns

The Assembly Judiciary Committee took testimony on A4730 (Park)S3535 (Gopal), which would permit the admission of evidence of prior acts of domestic violence, child abuse, and sex offenses in prosecutions for those offenses. The New Jersey State Bar Association (NJSBA) is closely monitoring this legislation, which has drawn concerns from the Administrative Office of the Courts, the Office of the Public Defender and at least one domestic violence prevention organization.

“Our position is that N.J.R.E. 404(b), as presently interpreted by decades of case law, already allows admission of these prior crimes whenever they are relevant to prove a material fact,” said Public Defender Jennifer Sellitti in a letter to sponsors.

Sellitti and others raised concerns with the prejudice resulting from admitting this evidence, potentially leading jurors to consider prior bad acts as proof of the propensity to commit the crime rather than whether they committed the actual crime they are charged with. Sellitti pointed out that the defendant’s right to a fair trial is paramount to admitting evidence that would lead jurors to perceive the defendant as a “bad person” in general.

“Admission of other crimes evidence in circumstances other than those allowed by N.J.R.E. 404(b) could undermine confidence in our criminal justice system and create an increased risk of wrongful convictions based on evidence of past crimes rather than evidence of the present offense.”

Advocates against domestic violence raised concerns that the bill would force survivors to participate with prosecutions. Another concern is language in the bill that would equate witnessing domestic violence with child abuse or maltreatment, which could also lead to charges of neglect for survivors of domestic violence. Questions arose as to whether the bill aims to admit convictions or any charge of abuse or neglect, the latter of which could lead to prejudicial evidence of often false claims of abuse, according to the advocates.

The NJSBA is reviewing this bill and monitoring its progress. The bill was up for discussion only and no vote was taken to move the bill out of the Assembly Judiciary Committee.

Bill Mandating Bias Incident Investigation Standards Given Nod in Assembly Judiciary Committee

The Assembly Judiciary Committee unanimously passed A1921(Park), which would codify the Attorney General’s guidelines on bias incident investigation standards. If enacted, the bill would mandate every county and municipal law enforcement agency to report all confirmed or suspected bias incidents through the Electronic Uniform Crime Reporting system within at least 24 hours from the initial law enforcement response.

Responding to Assemblywoman Victoria Flynn’s question on the necessity of the bill, Stephan Finkel of the New Jersey Office of the Attorney General pointed out that the guidelines are working and the office wants to maintain “at least this level of standards.”

The bill also imposes requirements regarding bias incident response and investigation and sets forth procedures for the follow-up investigation of reported bias incidents.

Assemblywoman Ellen Park, chair of the committee and sponsor of the bill, highlighted the importance of maintaining transparency in accessing and tracking this information.

“For me it’s very important that we ensure the future of bias crime reporting,” she said.

The NJSBA is closely monitoring these bills.

September 16, 2024

New Jersey State Bar Association Amicus Cases Up for Oral Argument

The New Jersey State Bar Association will appear before the state Supreme Court and the Appellate Division as amici this month in matters related to attorney advertising and removing the “Not Established” standard in child welfare matters.

In Re Supreme Court Advisory Committee on Professional Ethics Opinion No. 735

NJSBA member Bonnie C. Frost will argue on behalf of the Association before the Supreme Court to urge reconsideration of ACPE Opinion 735, which allows attorneys to use another attorney’s name or law firm name as a key word search to redirect searches to the competing attorney’s website.

The ACPE issued a finding in 2019 that the practice of purchasing competitor’s names as keywords “is not deceptive, fraudulent, or dishonest conduct within the meaning of Rule of Professional Conduct 8.4(c)” because ACPE believes these keyword-purchase websites are marked as paid or “sponsored.”

This round of briefing and oral argument follows the report of Assignment Judge Jeffrey R. Jablonski, who served as special adjudicator in the case. In a report issued in June, Assignment Judge Jablonski took limited discovery by consent of the parties “to provide any attorneys who either engaged in this advertising practice or those who might have been negatively impacted by it to answer standard form interrogatories.” Following a hearing, Assignment Judge Jablonski issued a report containing a detailed analysis and findings of fact in connection with purchasing keyword search terms from the top three internet search engines. The special adjudicator did not opine on whether the practice complained of is ethical, but concluded that the issue could be addressed using the current RPC provisions, and that no rule modifications were necessary.

In its latest round of briefing, the NJSBA noted the report supports its assertions that this practice is misleading, dishonest and prohibited and therefore unethical. The NJSBA agreed the RPCs were sufficient; however it recommended a comment to the rules to provide additional clarity to specifically state that it is a violation “to purchase another lawyer’s or law firm’s name as a keyword search term from internet search engines to use in the lawyer’s own keyword advertising.”

Frost and NJSBA Assistant Executive Director/General Counsel Sharon A. Balsamo wrote the briefs.

The oral argument will be held on Sept. 24.

N.J. Department of Children and Families v. R.L.

The NJSBA will appear as amicus to urge the Appellate Division to abolish the “Not Established” finding in child welfare cases. NJSBA Past President Jeralyn L. Lawrence will argue the matter on Sept. 25.

The “Not Established” standard exceeds the Department of Children and Families’ delegated authority and contravenes the Title Nine Expungement Statute, the NJSBA said in its briefing. Currently, there is a four-tier system of evaluating child abuse and neglect allegations, which changed in 2011 from a two-tiered system. In 2011, then-Gov. Chris Christie rejected a three-tier system when he vetoed a bill the Legislature passed.

“After Gov. Christie’s veto, the Department implemented the current four-tiered system. This decision appears to be an administrative end-run around both the legislative process and the Governor’s decision, creating a categorization that was not legislatively approved,” the NJSBA said in its brief.

The Association further said that the standard for “Not Established” calls for the presence of “some evidence” of harm to the child, short of the preponderance of the evidence standard required for a “Substantiated” finding. This standard is “amorphous,” the NJSBA said, leading to “arbitrary and potentially capricious outcomes.”

The four tiers are “Unfounded,” “Not Established,” “Substantiated” and “Established.” Unfounded findings are the only ones that may be expunged. While the others are kept on file, “Not Established” findings are not disclosed on Child Abuse Record Information (CARI) background checks. Despite this, the NJSBA raised concerns that these findings remain on record and may be discoverable in related family law matters, drawing concerns that such findings could impact future custody matters.

In addition to Lawrence, NJSBA members Matheu D. Nunn and Brian G. Paul wrote the brief.

September 9, 2024

NJSBA Advocates for Changes to Child Sexual Assault Act to Apply to All Claims Filed After Enactment

In its amicus curiae filing last week, the New Jersey State Bar Association urged the Appellate Division to affirm a trial court’s decision to apply recent amendments to the Child Sexual Assault Act (CSAA) in a broad manner to ensure claims of child sexual abuse could proceed on their merits subject to the newly enacted standards.

The appeal by Warren Hills Board of Education and Warren Hills Junior High School challenged the ruling of the trial court alleging that the Tort Claims Act (TCA) notice waiver under the CSAA did not extend to common law actions, and that certain pre-amendment language in the CSAA should apply to limit those individuals against whom child sexual abuse claims could be brought. NJSBA Secretary Craig J. Hubert and Trustee Thomas J. Manzo wrote the brief on behalf of the NJSBA.

“In the face of the obvious and unambiguous intent to pass a statute that opens the door for all survivors of sexual assault and abuse to bring claims for civil redress against both private and public entities, the matter before the Court asks: Was there any legislative intent to deny a class of victims, such as plaintiff, the right to proceed in their claim based upon prior tort claim notice requirements or based upon the pre-amendment language of the CSAA?” the NJSBA asked in its briefing.

The NJSBA said W.S. v. Hildreth, 252 N.J. 506 (2023) made the answer clear when the Supreme Court held that “such a denial would be irreconcilable with the language of the relevant statues and their legislative history, and would result in unsubstantiated denials of access to civil justice for sexual assault victims…”

The trial court affirmed a previous denial of summary judgment  following a hearing on a Motion for Reconsideration to allow a claim under the CSAA to proceed in the matter of J.H. v. Warren Hills Board of Education, et als. The defendants argued that a footnote in W.S. left open an invitation for Title 59 defendants to seek clarity as to whether the TCA notice waiver extends to common law claims involving sexual assault.

But the court declined to interpret this language as narrowing the class of plaintiffs permitted to file a lawsuit, citing to the language in the CSAA that explicitly permits incidental common law claims related to the sexual assault. The trial court also cited to the Supreme Court’s reasoning in W.S. to apply the new CSAA language to all claims filed after the amendments to the Act.

“The ‘incidental’ common law claims here are negligent hiring, supervision and retention,” the trial court said in its decision on the motion for reconsideration. “While these claims are not actions directly resulting from the commission of sexual crimes as defined by statute, the basis of these claims is the underlying sexual assault claim… Given the Supreme Court’s expansive reading of the statute, the negligence claims need not be dismissed for failure to file a notice of claim.”

In applying the amendatory statutory language prospectively, the trial court also noted, “The purpose of this amendment was to allow victims of sexual abuse to pursue justice where they previously could not.”

The NJSBA appeared as amicus in W.S. and echoed its position on the issue of the expansive reading of the CSAA in this case. Oral argument has not yet been scheduled in this matter.

September 2, 2024 

New Workers’ Compensation Law Increases Attorney Fee Cap to 25%

Earlier this month, New Jersey Acting Governor Nicholas Scutari signed into law S2822 (Lagana)/A3986 (Verelli), which increases the attorney fee cap in workers’ compensation cases from 20% to 25%. The New Jersey State Bar Association has monitored the bill closely.

Proponents supported the bill to consider “additional duties” that workers’ compensation attorneys may be required to handle since the establishment of the cap in 1927.

“We are committed to protecting New Jersey’s workers and ensuring fair wages,” Scutari said. “Today’s legislation makes a meaningful adjustment to the contingency attorney fee cap, ensuring fair compensation for attorneys and providing workers with the accessible, quality legal representation they deserve.”

Last year, a similar bill died in the Legislature. Dubbed the 21^st Century Injury Worker’s Access to Justice Act, the bill sought to address the ruling in Garzon v. Morris County Golf Club, App. Div. Docket #A-1100-21 concerning the basis for the award of counsel fees in the workers’ compensation system.

NJSBA members monitored the current bill closely, but the Association did not take a position on it.

Court Issues Supplement to Directive on Children in Court Form Orders

New Jersey Judiciary’s Judicial Council revised three Children in Court (CIC) permanency order forms earlier this month. The council amended the FC Permanency Order to include a checkbox indicating that a review under the Child Placement Review Act was performed. Also in the FC Permanency Order, as well as the FN and FG permanency orders and the FC Post Termination Permanency Order, an additional listing of reasons why a child did not appear at a permanency hearing has been included; as well as a revised confidentiality notice clarifying that the prohibition of sharing confidential information includes electronic communications and social media.

The supplement amends Directive #15-18 and may be found here. The changes are effective immediately.

New Directive Revises Code of Conduct for Certified Transcribers

The New Jersey Judiciary approved revisions to the Judiciary Transcriber Manual and incorporated the Code of Professional Conduct for Certified Transcribers. The changes included in Directive #08-24 aim to reinforce the authority of the Transcriber Certification Board to suspend or revoke credentials in certain circumstances and to clarify professional expectations and standards for individuals who prepare court transcripts.

Among the updates in the manual are a provision clarifying that applicants are subject to criminal records checks randomly or for cause; an appeals process incorporated into the board’s discipline procedure, and examples of crimes and offenses constituting grounds for refusal to admit a person to an examination or suspension or revocation certification. The Code of Professional Conduct was also revised to incorporate an ongoing duty to report litigation involvement and ensure positive and respectful communications.

A copy of Directive #08-24 may be found here.

August 26, 2024

NJSBA Calls for Affirming Prevailing Party Standards in Preliminary Injunctions in U.S. Supreme Court Amicus Curiae Filing

Merits-based preliminary injunctions that materially alter the relationship between the parties can, under appropriate circumstances, constitute a basis for a “prevailing party” and an award of attorney’s fees, said the New Jersey State Bar Association to the United States Supreme Court in its amicus curiae brief filed earlier this month. The NJSBA joined parties in requesting certification of the question in a brief written by Justice Gary Stein (Ret.), with assistance from Dominique Kilmartin, NJSBA past-president Robert B. Hille, Peter J. Gallagher and James A. Lewis, V.

“Undeniably, Respondents prevailed on their claim.

The preliminary injunction reinstated their licenses without a penalty and enjoined enforcement of the statute, based on their demonstrated likelihood of success, until the cases was mooted eighteen months after the preliminary injunction was entered,” the NJSBA said in its brief. “But for the stay of trial sought and obtained by the Commissioner, and the subsequent repeal of the statute, Respondents undoubtedly would have succeeded at trial and secured a Final Judgment. In that context, the lack of a Final Judgment cannot reasonably or justifiably preclude Respondents from designation as a prevailing party.”

In the matter of Lackey v. Stinnie, No. 23-621, the Court is asked to address the question of whether a “prevailing party” in preliminary injunction cases where the offending statute had been repealed before a final injunction was entered and therefore the case dismissed. Lackey challenged a Virginia statute that suspended driver licenses, without notice or hearing, automatically upon an indigent person’s failure to pay fines for motor vehicle violations. Individuals whose licenses were suspended under the statute sued for injunctive relief and following an evidentiary hearing, such relief was granted based on a substantial likelihood of succeeding on the merits of their claim that the statute failed to provide procedural due process. They argued that the statute made no provision for either notice or a hearing prior to the license suspension.

The Commissioner of the Department of Motor Vehicles did not challenge the preliminary injunction, but after discovery and prior to trial sought a stay pending legislation that eliminated the suspension provision of the statute. That legislative action did not repeal the underlying statute. The stay was granted pending the next legislative session, which ultimately repealed the statute.

The parties stipulated that the litigation should be dismissed as moot, however the respondents argue they prevailed on their claim and are entitled to attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976.

The NJSBA joins others in asking the Supreme Court to affirm the determination of a number of Circuit Courts that despite the lack of a final ruling from the court, “under appropriate circumstances a preliminary injunction based on a finding of likelihood of success on the merits could support a prevailing party finding.”

The NJSBA argued that the petitioner’s claim that there is “confusion and uncertainty” is contrary to the Circuit Courts’ “consistent precedents that require a judicial decision that alters the parties’ relationship in a manner directly benefitting the plaintiff to serve as the sine qua non of a prevailing party finding… but that have pragmatically declined to require a final judgment on the merits as a predicate for that finding.”

Oral argument is scheduled for the fall.

August 19, 2024

NJSBA Advocacy Results in Increased Transparency and Expanded Discovery in Certain DUI Matters

DWI test records obtained during a period when certain Alcotest machines were improperly calibrated must now be publicly available for defendants to use in determining if a prior DWI conviction was potentially tainted by testing improperly certified by then-New Jersey State Police Sgt. Marc Dennis, said the Supreme Court in a unanimous decision.

Pursuant to the Court’s decision in State v. Zingis, Docket No. A-66-21, defendants are also entitled to specific discovery when facing an enhanced sentencing due to a subsequent driving under the influence (DUI) charge where the first charge involved an improperly calibrated machine. The decision largely mirrors the recommendations of the New Jersey State Bar Association, which appeared as amicus curiae. NJSBA member Jeffrey Evan Gold wrote the most recent brief and argued on behalf of the Association. NJSBA members John Menzel and Michael V. Troso participated in the special adjudicator hearings, along with Gold, on behalf of the organization.

In its decision, the Court spelled out a process for the implementation of a special adjudicator’s findings and legal conclusions relative to subsequent DUI convictions where the original conviction was based on potentially tainted Alcotest results. In requiring the posting of information on the state’s website and compelling discovery relative to the original testing, the Court held that the NJSBA-suggested mechanism for the production of information about potentially tainted prior convictions was appropriate in such matters and outlined the procedure parties must follow moving forward.

“Today’s decision is a huge victory for transparency and levels the playing field for all in DUI matters,” NJSBA President William H. Mergner, Jr. said. “Up until now, defendants and their counsel had no reliable means to determine whether a prior DUI conviction was tainted by a miscalibrated Alcotest machine and potentially subject to being vacated through post-conviction relief proceedings.”

“The Court’s decision aligns with the NJSBA’s extensive advocacy in the case, making clear that information on prior DUI convictions premised on potentially tainted Alcotest readings is required to be publicly available, and that prosecutors must provide detailed information at the beginning of every DUI case to ensure all parties are on the same playing field from the start,” Mergner said.

This matter revisited the decision in State v. Cassidy, 235 N.J. 482 (2018), where the Court held that the certification of calibration checks of certain Alcotest machines done by Dennis were improper. Following a lengthy special adjudicator hearing, the Court  held that the calibrations done by Dennis were improper and ordered notifications to all affected defendants of its decision that the results produced by Alcotest machines calibrated improperly are inadmissible. This case called into question over 20,000 Alcotest results.

Thomas Zingis was facing a second DUI charge in 2018, having been convicted of a prior DUI in 2012. As a result of the prior conviction, Zingis faced an enhanced sentence. Zingis challenged the enhanced sentence following the Cassidy decision because his initial DUI offense occurred during the period of the potentially tainted Dennis calibrations. The Appellate Division vacated the enhanced sentence finding that the state failed to prove beyond a reasonable doubt that Zingis’ 2012 DUI conviction was not based on an inadmissible test.

A special adjudicator hearing was ordered by the Supreme Court to determine which counties were affected by Dennis’ conduct and what notification was provided to those defendants. The Court’s decision here resolves two outstanding questions that the parties disagreed on. One was the availability of Exhibit S-152, a 180-page Excel spreadsheet setting forth all of the redacted subject test records obtained during the identified period of time Dennis was actively certifying Alcotest calibrations. The other was the proper procedure for challenging a prior Dennis-affected DUI conviction when facing enhanced sentencing on a subsequent DUI.

The Court held that Exhibit S-152, in a redacted form, must be publicly released on the state’s website, where it will be accessible by defendants and their counsel. It also held that during the initial conference for a DUI matter, a court must inquire whether the pending matter represents a first or subsequent DUI charge and determine if the prior offense occurred between Nov. 5, 2008, and April 2016. If so, the court must schedule a discovery conference to allow the state to provide the defendant and counsel, as well as the court, discovery that includes the summons number from the earlier offense to search Exhibit S-152.

This decision resolves a long-standing concern of the NJSBA regarding transparency relative to the notices required by the Cassidy decision and the production of information related to Dennis-calibrated machines. The state challenged the underlying Appellate Division decision to vacate the enhanced sentencing because Zingis’ name did not appear on the Attorney General’s list of Dennis-affected defendants compiled following the Cassidy case, nor was Camden County – where Zingis’ initial DUI occurred – was not implicated by the Cassidy decision.

However, the Appellate Division held that the state failed to prove beyond a reasonable doubt that Zingis’ conviction was not based on an inadmissible Alcotest result and called into question the compilation of the Attorney General’s list of notifications following Cassidy. The Court also questioned the lack of support for notification of those defendants following Cassidy. Instead the Appellate Division called for a more robust record of this information.

The NJSBA suggested the public availability of the subject test records contained in S-152 combined with the Dennis calibration records  would resolve many of the questions regarding such challenges. The Court’s decision reflects its agreement and establishes the  “robust record” called for by the Appellate Division for all matters going forward.

August 12, 2024

Attorneys Who Purchase Other Attorneys’ Names As Keyword Searches Violates RPCs, NJSBA Says

The New Jersey State Bar Association once again urged the Supreme Court to declare unethical the practice of attorneys purchasing the names of other attorneys for use as key word searches to redirect web traffic to their own sites. In support of this request, the NJSBA submitted a supplemental briefing following the Special Adjudicator’s findings following discovery and a hearing on Opinion 735 by the Advisory Committee on Professional Ethics (ACPE). NJSBA Assistant Executive Director and Counsel Sharon Balsamo and Bonnie C. Frost wrote the brief.

“The Special Adjudicator’s findings, submitted to the Court for its consideration after a lengthy discovery process and hearing, illustrate how and why attorneys engage in the practice and what they gain from it,” the NJSBA said in its briefing. “Importantly, the Special Adjudicator’s findings conclude that potential clients are likely not able to distinguish between internet search results that are paid advertising, including as a result of purchased keywords, and those organic results that appear in direct response to the search terms a user entered.”

The Association’s briefing focuses on the ACPE’s finding that the practice of using another attorney’s name as a keyword search to redirect web traffic was not in violation of the Rules of Professional Conduct because such advertisements appear as “sponsored” or as an advertisement, distinguishing it from “organic” results. “The user can choose which website to select and the search engine ordinarily will mark the keyword-purchased website as paid or ‘sponsored.’ This is not deceptive, fraudulent, or dishonest conduct within the meaning of Rule of Professional Conduct 8.4(c),” the ACPE said in its June 25, 2019, opinion.

Following the issuance of Opinion 735, the NJSBA filed a petition for review urging reconsideration of the opinion in light of “evolving technology” and with consideration of the Rules of Professional Conduct holding attorneys “to the highest standards of professionalism.”

The Bergen County Bar Association also filed a petition for review at the behest of an attorney, Richard H. Weiner, who personally experienced this practice and submitted discovery to the special adjudicator regarding his experience. The Supreme Court appointed Hon. Jeffrey R. Jablonski as special adjudicator, and he oversaw discovery and a hearing. Following the hearing in October 2023, Judge Jablonski issued a “Report of the Special Adjudicator” with 18 factual findings.

The NJSBA’s supplemental briefing highlights the experiences of attorneys and a marketing professional – all of whom demonstrated how the purchase of competitors’ names as key words resulted in confusion for the consumer and presumably deceptive practices in order to redirect web traffic to the purchaser’s website. Six states have rejected this practice as problematic and not in keeping with an attorney’s ethical obligations. Of the three states that permit the practice, two permit this practice premised on the notion that users can distinguish an advertisement from an organic search and the other examined the issue from a privacy argument and not an ethics issue.

The Supreme Court will consider supplemental briefing, which includes submissions from the Association, the Bergen County Bar Association, the New Jersey Civil Justice Institute and the ACPE.

August 5, 2024

Supreme Court Issues Stay on ACPE Opinion 745 Regarding Out-of-state Referral Fees

The state Supreme Court issued a stay of enforcement of Opinion 745 of the Advisory Committee on Professional Ethics (ACPE), lifting the ban on referral fee payments to out-of-state attorneys by certified civil trial attorneys.

The New Jersey State Bar Association sought a stay of Opinion 745 pending a disposition of various petitions of review of the opinion before the Supreme Court. NJSBA Treasurer Diana C. Manning, Christina Vassilou Harvey and Kyle A. Valente wrote the brief.

The NJSBA is challenging ACPE Opinion 745, arguing it upends a decades-long interpretation of the rule governing the ability of certified trial attorneys to pay referral fees to lawyers. There is no distinction in the plain language of the New Jersey Rules of Court between in-state and out-of-state attorneys, the NJSBA said in its briefing.

The Association further argued that the ACPE improperly characterizes referral fees as legal fees. Such a characterization triggers the prohibition against paying legal fees to an attorney who is not permitted to practice law in New Jersey. But under R. 1:39-6(d), referral fees paid by certified civil trial attorneys are not compensation for legal fees – rather they are paid “without regard to services performed or responsibility assumed by the referring attorney…”

In its opinion, the ACPE analyzed R. 1:39-1 through -9 along with the Rules of Professional conduct in reliance on its opinion that referral fees to out-of-state attorneys are akin to compensation to attorneys who are not licensed to practice in New Jersey. According to the ACPE, referral fees are a division of a legal fee, paid for legal services rendered, and therefore are strictly prohibited by RPC 7.2(c), which prohibits attorneys from giving anything of value to a person for recommending a lawyer’s services; RPC 7.3(d), which prohibits compensation or anything of value to be given to a person for recommending the lawyer’s employment by a client or as a reward for recommendation of the attorney; and RPC 1.5(e), which permits payments of legal fees in proportion to legal services rendered when a lawyer has assumed joint responsibility for the representation.

In addition to pointing out that the ACPE misinterprets the court rule that does not distinguish between in-state and out-of-state attorneys and referral versus legal fees, the Association argued that Opinion 745 undermines the goals of the attorney certification program. The Supreme Court has not yet set a date for argument on the matter. A full copy of the briefing may be found here.

Supreme Court Clarifies RPCs Regarding Communication With Represented Parties on Social Media

The Supreme Court adopted an official comment to Rule of Professional Conduct 4.2 regarding communication with represented parties to include “acts of another.” The adoption follows a ruling in In re Robertelli, 248 N.J. 293 (2021), which involved an attorney whose paralegal communicated with a represented party through Facebook.

In Robertelli, a paralegal employed by an attorney representing a public entity sent a flattering message to a public employee who brought a personal injury action against a public entity. The employee granted the paralegal “friend” status, thus permitting the paralegal to access the employee’s personal information. The attorney was brought up on disciplinary charges for violating RPC 4.2 and other RPCs. He argued that he had no understanding of Facebook and did not direct the paralegal to communicate with the employee.

While the disciplinary charges were dismissed, the Court referred the matter to the ACPE for further study and consideration of amendments to the RPCs.

“Today, social media is ubiquitous, a common form of communication among members of the public,” Justice Barry Albin said in the unanimous opinion. “Attorneys must acquaint themselves with the nature of social media to guide themselves and their non-lawyer staff and agents in the permissible uses of online research. At this point, attorneys cannot take refuge in the defense of ignorance.”

The official comment clarifies that “[a] lawyer shall not engage in a prohibited communication through the acts of another” and that communications “intended to gain access to non-public social media postings of a represented party fall within the prohibition of [RPC 4.2].”

July 29, 2024

NJSBA Urges Pretrial Release Rule Amendments

The proposed amendments to Rule 3:26-2 regarding a process for reviewing a defendant’s compliance with pretrial release conditions require additional clarifying amendments, said the New Jersey State Bar Association in a letter to the Administrative Office of the Courts.

“The NJSBA supports the goals of the proposed amendments and agrees wholeheartedly that these measures are needed to provide a structure for the review of pretrial release conditions and the handling of alleged violations of monitoring,” NJSBA President William H. Mergner, Jr. said to Acting Administrative Director Judge Glenn A. Grant. “The NJSBA suggests, however, that additional amendments are needed to strengthen to process that is sought to be established.”

The Judiciary’s proposed amendments to R. 3:26-2 would authorize review of the conditions of pretrial monitoring for a defendant who has been compliant with all conditions for at least six months. The proposed amendments would also provide specific timeframes for resolution of violations of monitoring filed by the prosecutor and/or by the Pretrial Services Program.

The NJSBA suggests that the amendments include more details to clarify the method of notifying all parties of a pretrial compliance review as well as a defined timeframe for any party to file an objection. With respect to no contact or no return conditions, that no changes may be granted to these terms unless all parties consent in writing or a hearing is held by the court and all parties are given the opportunity to be heard. With regard to the procedure for addressing violations of monitoring, language should be added to make it clear that the timeframes contained in the rule may be adjusted for appropriate reasons.

A full copy of the proposed rule amendments can be found here.

Matrimonial Case Management Orders Should Remain in Rules Appendix, Says NJSBA

The NJSBA called upon the Judiciary not to move the FM Case management order that is now included in the New Jersey Rules of Court as Appendix X from the appendix to allow future amendments as needed. The Judiciary proposed its removal to “simplify the process for future amendments.”

“The comment process currently afforded to individuals before any changes are made to forms contained in the Rules Appendix is critical to ensuring any changes are thoroughly vetted and take all perspectives into account,” Mergner said in a letter to Judge Grant. “The NJSBA is concerned if the form is not included in the Court Rules, the opportunity to provide such comments will not be made available.”

In addition to concerns about the ability to weigh in on future amendments, the NJSBA signaled possible access to justice concerns, especially for self-represented litigants who should be afforded easier access to the form.

A full copy of the notice may be found here.

July 22, 2024

Newly Enacted Real Estate Consumer Protection Act Defines Roles in Real Estate Contracts

The governor signed into law the Real Estate Consumer Protection Act, which incorporates protections for consumers regarding real estate and commercial real estate transactions. S3192 (Diegnan)/A4454 (Freiman) outlines the responsibilities of a brokerage firm, buyer’s agent, seller’s agent, dual agent, designated agent and a transaction broker. It also establishes circumstances under which an individual is a buyer’s agent or a seller’s agent and delineates the terms of the broker agreement between the agent and a consumer.

The law becomes effective Aug. 1. The NJSBA monitored this bill but did not take a position on it.

Tax Lien Sales Certificate Holders Not Entitled to Equity Property Tax Lien Foreclosures

New Jersey’s tax sale law and In Rem Tax Foreclosure Act were revised to reflect the holding in the Tyler v. Hennepin County, MN, et al, 598 U.S. 631 (2023) and, in some instances, subject tax lien foreclosures to the same procedures as mortgage foreclosures. The U.S. Supreme Court in Tyler held that the property owner was entitled to the equity following a tax lien foreclosure.

Prior to the enactment of this law, a third-party lienholder could file suit to foreclose on a property after six months in the case of a municipality holding a tax sale certificate for a party that had been abandoned, or two years in the case of a third-party lienholder. Upon the foreclosure, the lienholder was able to receive the title and all the equity remaining in the property. The U.S. Supreme Court held that such retention of equity beyond the amount that was owed on overdue property taxes and interest was a taking under the Fifth Amendment of the U.S. Constitution.

Under the newly enacted law, except in the case of abandoned property, a property owner whose property is subject to a tax lien foreclosure has the right to file a written demand in Superior Court before a final judgment is entered, requiring the holder of the tax sale certificate to foreclose the right to redeem the certificate in the same manner as a mortgage foreclosure. That would compel a judicial sale or internet auction of the property through the Sheriff’s office, after which a property owner could apply to the court for any funds left from the sale after payment of the tax lien, attorney’s fees and sheriff’s costs.

If the owner or the owner’s heirs do not demand a judicial sale or internet auction, the tax sale certificate holder may foreclose without this sale, taking full title to the property, and there would be no claim against the holder of the tax sale certificate for equity. Any judicial sale or internet auction would be conclusively presumed the fair market value of the property and if no one bids on the property, it would be conclusively presumed there is no equity in the property.

Other provisions include provisions to pay out allowable costs and attorney’s fees from the sale; defines “surplus funds;” requires at least 30 days’ notice to the property owner entitled to redeem an outstanding tax lien; requires notice to property owners to advise of the right to request a judicial sale or internet auction; and a requirement for a detailed reimbursement structure for expenses actually incurred by the lien holder for preparation and litigation of a foreclosure action to be added to the amount required to redeem the tax sale certificate.

The newly enacted law was effective as of July 10 and has no effect on any foreclosure action in which a final judgment has been entered prior to the effective date. The NJSBA monitored this bill but did not take a position.

July 15, 2024

Senate Gives Nod to More Judges Before Summer Break, Signals Rare Summer Session  

The Senate Judiciary Committee approved the nominations of five judges to the Superior Court, one to the Administrative Court and two to the Workers Compensation Court before closing out the legislative session before summer break. Senate President Nicholas Scutari indicated that he plans to call back the Senate to consider the looming nomination of John Jay Hoffman for the state Supreme Court.

Among the five judges approved by the Senate is New Jersey State Bar Association Trustee Jennifer McAndrew-Vuotto of Morris County. She thanked the late NJSBA Trustee Jeremy Farrell for his support throughout the nomination process. In addition to McAndrew-Vuotto, the Senate voted favorably for the nominations of Amber J. Gibbs and Adam Kenny, both of Middlesex County, Louis Charles Shapiro of Cumberland County and Jude Anthony Tiscornia of Hudson County.

Scutari announced at the Senate Judiciary Committee hearing earlier in the day that with these nominations, from his perspective, the judicial crisis is over. As of today, he noted, there are 40 vacancies, which is more than the number of vacancies the Administrative Office of the Courts has stated is necessary for the judiciary to properly function.

According to news reports, Scutari is looking for an August date to hold a Senate session. There is no indication of whether more judges will be considered in addition to Hoffman. The NJSBA continues to monitor this issue.

Digital Tort Claims Act Filings Goes Live

All tort and contract claims must be filed digitally beginning July 11, the New Jersey Treasury said in an announcement issued earlier this week. Tort and contract claims are required to be filed if the claims are against the state of New Jersey, its departments, agencies and employees, including state colleges and universities (except Rutgers University). According to the website, already-filed paper notices of claim that may have been filed in recent weeks may be converted to a digital format.

The portal tracks the status and progress of claims and allows a person filing to amend the claim at any time after submission. It also allows a person to upload documents when filing a claim or any time following the initial filing.

For more information, go to the digital claim portal here.

July 8, 2024

NJSBA Requests Stay of Opinion 745 Banning Referral Fees to Out-of-State Attorneys

The New Jersey State Bar Association requested a stay of the enforcement of an Advisory Committee on Professional Ethics (ACPE) opinion about referral fees, which has upended a decades-long interpretation of the rule governing the ability of certified trial attorneys to pay such fees.

The NJSBA is seeking a stay of Opinion 745, pending a disposition of various petitions for review of the opinion pending before the state Supreme Court, noting the potential harm that will be caused by enforcement of the opinion. Opinion 745 interprets the New Jersey Rules of Court to prohibit referral fees from certified trial attorneys to out-of-state lawyers, calling the fees compensation for legal services. In its petition, the NJSBA urged the Supreme Court to reverse the decision, arguing the plain language of the rule says otherwise. NJSBA Treasurer Diana C. Manning, Christina Vassiliou Harvey and Kyle A. Valente wrote the brief.

“A certified trial attorney has three choices upon the resolution of a pending matter that has been referred by an out-of-state attorney, in the aftermath of Opinion 745,” the NJSBA said in a brief signed by NJSBA President William H. Mergner Jr. advocating for the stay.

“One, an attorney may refuse to pay the referral fee ‘earned’ at the time of the referral and risk a claim for breach of contract. Two, the attorney may pay the referral fee in the face of a clear pronouncement by the ACPE that the payment of such fee is not ethical and risk prosecution for an ethical violation. Three, the attorney may retain the referral fee funds until the requested review of Opinion 745 is resolved,” the brief said.

The ACPE declined to stay the matter, saying it does not have such authority. The NJSBA noted the entity has issued a stay in at least one previous matter.

The NJSBA argued Opinion 745 misinterprets the plain language of R. 1:39(6)(d), which permits referral fees to be paid by a certified trial attorney to “the referring attorney or referring attorney’s estate… without regard to services performed or responsibility assumed by the referring attorney…” The ACPE has interpreted this to mean that only New Jersey attorneys may receive a referral fee. The NJSBA disputes that conclusion.

The rule is clear and unambiguous, said the NJSBA in its reply brief. “The ACPE does not refute in a meaningful way the connection that because the terms ‘out-of-state attorney’ and ‘New Jersey attorney’ appear elsewhere in the Court Rules, the fact that Rule 1:39-6(d) does not have these qualifications indicates that the intent was to apply to ‘all attorneys’ without qualification.”

In its stay request, the NJSBA said that enforcement of Opinion 745 puts in jeopardy a civil trial attorney who declines to pay a promised referral fee. That attorney could face “costly litigation” for failure to pay the fee in the face of case law that clearly compels such payment. On the flipside, payment of a referral fee could land the certified trial attorney with an ethics complaint for failure to abide by Opinion 745. Additionally, there are tax ramifications as a result of this conflict for the law firm who receives the referral fee and the law firm who initiated the referral, neither of which has received the benefit of the actual funds at the time the tax obligation is due.

The NJSBA cautioned further that potential clients with out-of-state attorneys may also suffer if they are unable to avail themselves of the benefits of a certified trial attorney with procedural and substantive knowledge of New Jersey law. “Out-of-state attorneys may delay referring cases to a New Jersey attorney to await the outcome of the Court’s potential review in this matter,” the NJSBA stated. “Such a delay may, unbeknownst to the out-of-state attorney, cause peril for litigants, because there are strict time and substantive requirements for various types of litigation, such as the need to file a Tort Claims Notice or an Affidavit of Merit.”

The Bergen, Essex, Hudson, Middlesex and Monmouth County bar associations joined in the NJSBA petition for review. Several other groups filed individual petitions for review of the opinion, including the New Jersey Association of Justice, the Trial Attorneys of New Jersey, the American Board on Trial Advocacy and the law firm of Blume, Forte, Fried, Zerres & Molinari, P.C. The petitions for review and the request for a stay are pending before the state Supreme Court.

July 1, 2024

Bills Move Amid Flurry of Budget Activity

Several bills being monitored by the New Jersey State Bar Association moved in both the Assembly and Senate budget committees in a last-minute push before the Legislature breaks for the summer.

S1385 (Singleton)/A3731 (Murphy) – Lisa’s Law

A last-minute add-on, this bill establishes a four-year pilot program in Ocean County (or a different county as determined by the Attorney General) for the electronic monitoring of domestic violence offenders and notification to victims. The NJSBA initially opposed the bill because it proposed to conduct electronic monitoring based solely on an arrest – and not a conviction – for violating a temporary or final restraining order, raising constitutional questions. As amended, monitoring would only be ordered with the victim’s informed consent and would apply to defendants convicted of contempt of a domestic violence order.

Further amendments allow for judicial discretion to decide whether to place the defendant on electronic monitoring by holding a hearing and considering specific factors enumerated in the bill. It also includes electronic monitoring device standards, and the imposition of fines and fees.

The pilot program is named Lisa’s Law in remembrance of Letizia Zindell of Toms River, a domestic violence victim who was murdered by her former fiancé who had been jailed on a contempt charge just prior to murdering her and then killing himself. The bill has not moved in the Assembly.

S2806 (Turner)/A3861 (Reynolds-Jackson) – Louisa Carman Medical Debt Relief Act

This bill would prohibit a consumer reporting agency from creating a consumer report containing a patient’s paid medical debt or medical debt worth less than $500, regardless of the date the medical debt was incurred. It would also prohibit a medical creditor or medical debt collector from reporting a patient’s medical debt to any consumer reporting agency. The bill affords further protections to patients with medical debt from collection actions, including the ability to void any medical debt that is furnished to a consumer reporting agency and including this act as a violation of the “consumer fraud act.” The NJSBA is currently monitoring the bill.

S3201 (Gopal)/A2378 (Spearman) – Upgrades penalties for assaulting law enforcement and requiring testing for communicable diseases

The NJSBA opposes this bill, which would upgrade certain penalties for assaulting law enforcement and increase penalties for assault with bodily fluids. Those who are charged with assault with a bodily fluid would be required to provide a blood sample or other biological sample to be tested for a communicable disease. The NJSBA opposed the bill because of the mandatory testing requirement, which the Association said could lead to selective enforcement based on an alleged offender’s status as LGBTQ. Furthermore, the bill’s imposition of the requirement for those who are “at risk for a communicable disease” lacks any further definition or guidance. The Association further argued the bill is unnecessary because there are already a sufficient range of potential charges and penalties in place for assaults against law enforcement officers.

Amendments were made to remove the mandatory testing requirement, requiring a warrant for the collection of blood and based on sufficient grounds. The bill passed without further amendments, which are anticipated if the bill moves further. It has not yet moved in the Assembly.

S3192 (Diegnan)/A4454 (Frieman) – Real Estate Consumer Protection Enhancement Act

This bill provides protections for consumers regarding residential real estate transactions and certain aspects of commercial real estate transactions. Among the protections provided are articulated responsibilities to a consumer by brokerage firms, the buyer’s agent, the seller’s agent, a dual agent, a designated agent and a transaction broker. The NJSBA did not take a position on the bill but is monitoring it. As of the date of publication, the bill passed the Senate and is awaiting Assembly approval.

June 24, 2024

Dissolution and Termination of LLC Recission Permissible by Court Order, Says NJSBA; Appellate Division Agrees

In a case of first impression, the Appellate Division held that trial courts possess the jurisdiction and authority to order recission of a certificate of dissolution and termination with a proper showing of justification and notice to interested or affected parties. The New Jersey State Bar Association participated as amicus curiae in the matter of Patel v. N.J. Department of Treasury, Division of Revenue and Enterprise Services (DORES), Docket No. A-2370-22. NJSBA member and past Business Law Section Chair Gianfranco A. Pietrafesa argued the matter on behalf of the Association and wrote the brief.

The certificate of formation of an initial limited liability company was filed in 2003 and went through a number of amendments to change members, the last amendment of which was filed in 2016. The LLC holds a liquor license. The business was sold to Patel in 2019, and no further amendments were filed to reflect the new ownership. In 2020, a former LLC member who sold the business to Patel filed a certificate of dissolution and termination with DORES without any notice to Patel. When Patel discovered the filing in 2021, he attempted to reinstate the LLC to avoid upending ownership of the liquor license.

The NJSBA argued that DORES’s role in filing a record is ministerial. It is not required to verify the authority of a person signing the record, nor does it have discretion to refuse to file a record that otherwise satisfies statutory requirements. While the New Jersey Revised Uniform Limited Liability Act (RULLCA) does not authorize the recission of a certificate of dissolution and termination, a court may rescind a certificate on equitable grounds in the trial court.

Sorting through this complex history, the Appellate Division noted that all of the parties agreed that DORES lacks the legal authority to rescind a certificate and terminate administratively.

“That said, the counsel before us all agree there should be a clear avenue for the present members of an LLC to pursue the recission of an LLC’s dissolution and termination on equitable grounds, in instances where the certificate has been filed improperly,” said Judge Jack Sabatino. “With the concurrence of all counsel, we conclude the appropriate mechanism to pursue such recission is through a civil action in the trial court.”

The matter was remanded to the trial court to explore the facts surrounding the filing of the certificate of dissolution and termination, and to appropriately adjudicate the matter.

Bill Regulating Psychedelics Gets Assembly Committee Hearing

The Assembly Health Committee held a hearing on a bill that would establish a framework for the regulated production and use of psilocybin in connection with behavioral health care and preventative behavioral treatment. The NJSBA is monitoring Psilocybin Behavioral Health Access and Services Act, A3852 (Conaway)/S2283 (Scutari), which passed the Senate Health, Human Services and Senior Citizen’s Committee earlier this month.

“Scientific research is showing that psilocybin can be a safe and effective treatment for severe depression, anxiety and other mental health disorders,” said prime sponsor, Senate President Nicholas Scutari. “This bill will create a framework for a program that offers professionally-supervised services to qualified patients who would benefit from psilocybin treatment. This has the potential to make a real difference in the lives who suffer adverse behavioral health conditions.”

The bill mandates a three-step treatment process for the administration of psilocybin treatment and creates an advisory board to develop standards for training relevant professionals.

The bill remains pending in the Senate Budget and Appropriations Committee but has not yet been voted on in the Assembly.

June 17, 2024

For-profit Debt Adjuster Bill Moves Out of Committee, But With Significant Concerns

The New Jersey State Bar Association testified in opposition to S1310 (Pou), which would permit for-profit debt adjusters to operate in New Jersey. Currently, nonprofit debt adjusters are licensed to do so in New Jersey with strict guidelines regarding fees, audits and bonding. Yongmoon Kim, chair of NJSBA’s Consumer Protection Law Committee, testified before the Senate Commerce Committee to warn of the predatory behaviors of such companies that are being sued in other parts of the country.

“The Consumer Financial Protection Bureau just recently issued a notice on the risks associated with debt settlement companies,” the NJSBA said in its written remarks to the committee. Those risks, outlined in an Aug. 24, 2022, statement, cautioned people to consider all available options including working with a nonprofit credit counselor before engaging the services of a debt settlement company.

“The CFPB issues the same warnings to avoid the very concerns the NJSBA has pointed out here including high fees, the potential inability of the debt settlement company to resolve all of the debts leaving the consumer with ever more debt due to late fees and penalties, and exposure to collection actions if settlement does not occur,” the NJSBA said.

The bill was pocket-vetoed in the last session by Gov. Phil Murphy. It was reintroduced this session. It was amended to include mandatory disclosures of certain information before entering into an agreement with the consumer. While the amendment was noted as an improvement to the bill, it did not go far enough, according to those testifying in opposition to the bill.

Legal Services of New Jersey’s Dave McMillan testified that people he represented often found themselves without recourse because they were unable to make the payments, inclusive of fees and other charges, to these debt settlement companies. Also testifying in opposition were Beverly Brown Ruggia from New Jersey Citizen Action and Renee Steinhagen from New Jersey Appleseed.

The NJSBA urged caution before proceeding, pointing out that there were many more safeguards put into place in a version of this legislation drafted by the New Jersey Law Revision Commission in 2012.

Sen. Joseph Cryan peppered the advocates of the bill with questions regarding the settlement process, asking what would happen to the fees and interest mounting as settlement occurs. Proponents of the bill pointed out that they negotiate at the time they are engaged, which saves the consumer further fees and interest. Later opposition testimony pointed out that while that may be true, the fees and interest accrual is often accounted for in the taxable portion of the discharged debt. Cryan, who voted yes to the bill in the last session, voted no.

Sen. Jon Bramnick abstained on the bill, urging further consideration of amendments to provide consumer protection safeguards. The bill remains pending in the Senate and has no Assembly counterpart.

June 10, 2024

NJSBA Offers Comments on Court Rule Amendments

New Jersey State Bar Association Treasurer Diana C. Manning and Special Civil Part Committee Immediate Past Chair Tracey Goldstein discussed proposed Court Rule amendments at a hearing on recent reports issued by the Judiciary’s various rules committees. The New Jersey Supreme Court holds the public hearing each spring.

Commenting on the Civil Practice Committee report, Manning noted the NJSBA supports the proposals relating to civil practice, but suggested language changes meant to clarify the amendments further. “We offer these comments in the spirit of cooperation,” said Manning, noting a shared goal of “establishing procedures that are clear, fair to all parties and advance the interests of and access to justice.”

NJSBA-suggested clarifications include ensuring that all attorneys have an opportunity to confer with non-party organizations before depositions to make sure the individual presented for deposition has the requisite knowledge of the matters involved; clearly providing the circumstances under which third-party observers can attend independent medical examinations; and confirming that a civil arbitration award is transmitted by the arbitrator and filed by the civil division manager.

Goldstein addressed concerns with proposed amendments to the rules governing ejectment actions. The NJSBA opposes a proposal to require separate actions for possession of property and monetary damages. Goldstein said such a requirement would be impractical, unnecessary and would likely hinder the resolution process.

The Court indicated it would take the NJSBA’s comments under consideration.

The NJSBA’s full comments can be found on njsba.com.

 NJSBA Offers Guidance to Appellate Division as Amicus Curiae on Procedures for Rescission of LLC Dissolution and Termination Documents

The NJSBA appeared as a friend of the court in a recent appeals court argument on a critical business law issue.

“New Jersey statutes do not allow for the Division of Revenue to rescind a dissolution or termination of an LLC,” explained Gianfranco A. Pietrafesa in oral argument before the Appellate Division for amicus New Jersey State Bar Association (NJSBA). “An LLC can only be brought back by a Court exercising its equitable authority.”

In Patel and Shiv Hospitality, LLC v. Dept. of Treasury, Division of Revenue and Enterprise Services, the Appellate Division must decide whether and under what circumstances the Division of Revenue can reverse a certificate of dissolution and termination filed on behalf of an LLC. Shiv Hospitality, LLC was formed Nov. 20, 2003 and, after various member and agent changes over the years, a certificate of dissolution and termination was filed in Dec. 2019.

The plaintiff alleges the certificate was filed in error, as all of the LLC’s member/managers had assigned their interest to him and he became the sole owner and member in Nov. 2019. He sought to have the dissolution/termination canceled, but the Division of Revenue declined, claiming it has no statutory authority to take such action on its own. He appealed to the Appellate Division to grant its request for the LLC to be reinstated.

The NJSBA agreed that the Court can enter a judgment rescinding the dissolution/termination documents, but urged that a record should be developed first. Pietrafesa, a past chair of the NJSBA’s Business Law Section, also suggested that guidance from the Appellate Division in a written opinion on the topic would be helpful to the bar.

The Court took the matter under advisement.

June 3, 2024 

Senate OKs Bill Requiring State Agency Collaboration to Help Abused and Neglected Children with Disabilities

The Senate voted unanimously in support of a bill that would require the Division of Child Protection and Permanency to consult with the Division of Developmental Disabilities following a finding of child abuse and neglect to create services as necessary.

The New Jersey State Bar Association supports S720 (Burgess)/A4168 (Reynolds-Jackson) with a recommendation to define “reasonable efforts” as stated in the bill.

The bill was initially drafted to create a plan for services for a child who has a developmental disability and is eligible for services and who appears to need therapeutic services. A committee amendment revised the bill to reference more broadly the services provided by DDD.

“Reunification is the most common goal for children in foster care,” said bill sponsor Sen. Renee C. Burgess. “While current efforts at reunification are often effective, with more comprehensive efforts, including coordination between DCPP and DDD, they could become even better.”

The bill remains pending in the Assembly Judiciary Committee.

Judiciary Wi-Fi Upgrade in County Courthouses Goes Into Effect

All Superior Court courthouses are receiving an upgraded wireless infrastructure installed by the Judiciary Information Technology Office. The Wi-Fi network that attorneys have been using will be discontinued. Attorneys will no longer use the “NJ-Attorney” Wi-Fi network, and are directed to use the same Judiciary wireless network that the public uses in each of the courthouses. Attorneys should look for the “[county name] Judiciary Public Wifi” and accept the End User Agreement to access the network. Attorneys will no longer need to enter a user ID and password. The change takes effect June 3.

May 27, 2024

Senate Committee Clears NJSBA-Backed Bill to Move Domestic Violence Contempt Matters to Public Defender

Last week, the New Jersey State Bar Association testified before the Senate Judiciary Committee in support of S2437(Pou)/A4471(Ramirez). The bill directs the Office of the Public Defender to provide legal representation for criminal contempt violations in domestic violence matters. The NJSBA supports this bill, which concept was one of 13 recommendations in its report to address effective representation in matters where there is a right to counsel. Past NJSBA Trustee Eugenia Lynch testified on behalf of the Association.

“New Jersey has the primary obligation to provide effective counsel in matters implicating fundamental rights, which obligation is enshrined in the federal and state constitutions, case law and statutory law,” the NJSBA said in its written remarks to the Senate Judiciary Committee. “This bill ensures that litigants who have a constitutional right to counsel, but cannot afford counsel, receive equal access to justice through effective counsel as well as the support necessary to avoid repeat offenses.”

Public Defender Jennifer Sellitti testified of the importance of this bill, which she pointed out was one of the recommendations of the Reconvened Joint Committee on Criminal Justice. The Senate Judiciary Committee approved the bill with amendments to incorporate the ability for the Public Defender to appoint social workers to assist attorneys and clients who are charged with contempt. Sellitti testified in response to questions regarding funding, which is estimated to be about $7 million in the first year.

The NJSBA convened a Right to Counsel Committee to review the matters in which there is a right to counsel and determine the best way to address the needs of litigants in need of counsel to obtain experienced and knowledgeable representation. Currently, counsel is appointed off of the Madden list, which was created following the Supreme Court’s decision in Madden v. Delran and was meant as a stop-gap measure to pair litigants who cannot afford counsel, but have a right to counsel, with a licensed New Jersey attorney. The Right to Counsel Committee authored a report – Achieving Effective Representation in Right to Counsel matters – which made 13 recommendations to improve representation, including moving contempt of domestic violence matters to more experienced counsel in the Office of the Public Defender. The Supreme Court’s Working Group on Pro Bono Assignments relied upon this report in its own recommendations, which include this one.

The Reconvened Joint Committee on Criminal Justice echoed this recommendation in its own review of defendants facing domestic violence charges. This committee identified as an area of concern and an area for improvement the provision of resources to reduce recidivism. More specifically, the committee focused on recommendations to move away from pretrial intervention and toward therapeutic treatment and related resources to address the root causes of the criminal behavior. S2437 is one of four recommendations addressing domestic violence. The other recommendations include additional training for law enforcement and prosecutors to identify strangulation as a specific form of domestic violence and resources for victims during the pendency of a criminal or domestic violence case; legislation to require standards for abusive partner intervention domestic violence programs and resources to provide these services; and amending the Public Safety Assessment to enhance its accuracy regarding factors of domestic violence.

The bill was referred to the Senate Budget and Appropriations Committee. The NJSBA is closely monitoring this bill.

May 13, 2024

Legislators to Discuss Trenton, Data Privacy, Wellness at NJSBA Annual Meeting

The New Jersey State Bar Association welcomes several legislators as panelists and attendees at this year’s Annual Meeting from May 15-17 in Atlantic City, who will participate on a number of panels throughout the three-day meeting. They will share their insights on the latest issues being discussed in Trenton, land use, attorney wellness, judicial nominations and data privacy.

As in years past, the Annual Meeting will host an Inside Trenton program featuring legislators and leaders to discuss the latest in legislation being considered in the Legislature. The slate of panelists includes Sens. Jon Bramnick, Michael Testa, John McKeon and Anthony Bucco; Assemblyman Herb Conaway; and Assemblywomen Victoria Flynn and Luann Peterpaul. Also joining the panel is Governor’s Chief Counsel, Parimal Garg. William Maer of Public Strategies Impact will moderate the program.

In addition to Inside Trenton, attendees will hear from legislators and other leaders on a variety of panels including:

• Assemblywoman Claire Swift, who will speak on attorney wellness at The Value of Psychological Support Services for Law Professionals and Family Members. She is an attorney at the Swift Law Firm where she is joined by family members practicing in criminal defense, driving while intoxicated cases, real estate, family law and personal injury.
• Raj Mukherji will discuss the newly enacted Data Privacy Act, which he sponsored. The panel – Data Privacy and Security in New Jersey: What You Need to Know – will do a deep dive on navigating coordination of compliance efforts with various state privacy statutes.
• Bucco will also participate on So, You Want to be a Judge? The senator, who is a member of the Senate Judiciary Committee, offers his unique perspective on the nomination and appointment process.
• Assemblywoman Ellen Park will talk about Diversity, Equity and Inclusion on a robust panel of practitioners to talk about DEI programs post-SFFA v. Harvard and SFFA v. UNC.
• Garg will participate in two other programs of interest including Criminal Justice Reform: A Renewed Look and NJ At SCOTUS: NY v. NJ and the Waterfront Commission.

The Annual Meeting offers a full slate of programs on up-to-date issues in many practice areas. Judges – both sitting and retired – and other officials will offer their unique perspectives. There is still time to register for the meeting here.

May 6, 2024 

 Supreme Court Clarifies Rule on Contingency Fees in Retainer Agreements

The New Jersey Supreme Court adopted an Official Comment to Rule 1:21-7 to provide guidance to attorneys and the public regarding ethical issues related to retainer fee agreements in statutorily-based fee-shifting cases. The Court’s action follows its decision in Balducci v. Cige, 240 N.J. 574 (2020), in which it held that the issue was “worthy of the deliberative process by which new ethical rules are promulgated by this Court.” The New Jersey State Bar Association participated as amicus in Cige to encourage a more robust decision-making process to address mandates emanating from the Appellate Division’s decision interpreting ethical requirements relative to these types of agreements.

The Notice to the Bar issued on April 26 sets forth an official comment that requires lawyers who represent clients in statutorily-based discrimination cases to:

• Explicitly disclose in the retainer agreement all identifiable fees or costs that the clients may have to pay either up front or at the conclusion of the case;
• Provide an estimate of fees and costs and the range of value of the case at the initiation of representation, taking into consideration the “wide scope of potential paths litigation might take;”
• Maintain a continuing obligation to inform clients about additional fees and costs that may arise as the case progresses;
• Promptly inform the client when rising fees and costs are likely to result in little to no monies recovered by the client in the lawsuit.

Additional guidelines in the notice include:

• Retainer agreements are presumptively unreasonable when a lawyer charges the greater of a contingent fee or a regular hourly fee that is payable even if there is no recovery;
• A contingency fee agreement in which the damages award and the fee are combined, and a percentage is applied to the combined amount, is not presumptively unreasonable;
• There should be no cap on fees recoverable in a statutory fee-shifting case, but lawyers should notify clients in the retainer agreement or orally when the fee percentage is higher than 33⅓%;
• There is no need for proportionality between the lawyers’ fee award and the damages award.

In Cige, a plaintiff challenged the validity of a retainer agreement that proposed a fee of the greater of an hourly rate, 37.5% of the net recovery or the statutory fees, by settlement or award. Balducci terminated the attorney-client relationship and received a bill for fees and expenses for nearly $287,000. In addition to holding the agreement invalid, the Appellate Division held that Cige was also obligated by the Rules of Professional Conduct to communicate clearly that his fee structure was different, in that the plaintiff would be obligated to pay regardless of the success of her case. The court further held that attorneys must tell clients that if a case becomes too complex, an hourly rate-based fee could approach or even exceed any recovery and advise of other attorneys who would represent the client on a purely contingency fee basis.

The NJSBA took no position on the validity of the retainer agreement but took issue with the Appellate Division’s interpretations of the Rules of Professional Conduct. In reviewing the recommendations by the Appellate Division regarding providing comparative recovery to clients in similar cases or referrals to attorneys who may have experience in similar cases, the Supreme Corut too noted concerns with the recommendations. The Supreme Court concluded that the recommendations “require careful and thoughtful consideration and deliberation,” and that such professional standards governing attorneys are done “through the rulemaking process.” The Court referred the issue to a newly established ad hoc committee comprised of representatives of the Civil Practice Committee, the Professional Responsibility Rules Committee, and the Advisory Committee on Professional Ethics, and other representatives of the bar and bench with experience in these matters.

That committee issued nine recommendations in November 2021, one of which was not adopted in the official comment. A copy of that notice may be found here. The NJSBA signaled concerns over some of the recommendations, and recommended clarifications to others. The Official Comments take effect Sept. 1.

April 29, 2024

NJSBA Petitions To Intervene To Reverse Opinion 745 On Out-Of-State Referral Fees

The New Jersey State Bar Association petitioned the Supreme Court to review and summarily reverse the Advisory Committee on Professional Ethics (ACPE) Opinion 745 regarding the payment of referral fees by court-certified attorneys to out-of-state attorneys. The NJSBA argues that the ACPE erroneously considers this payment a fee for legal services rendered in violation of the Rules of Professional Conduct 1.5(e). The brief was drafted by Christina Vassiliou Harvey, Esq., NJSBA Secretary Diana C. Manning, Esq., and Kyle A Valente, Esq.

“The referral fee mechanism is an exception to the general rule prohibiting the division of a fee by and between lawyers who are not in the same firm, unless the fee is in proportion to the services performed by each lawyer or each lawyer assumed joint responsibility for the representation,” the NJSBA said in its amicus brief. Citing to R. 1:39-6, Effect of Certification, the NJSBA further commented that “[s]uch a referral fee is one of the privileges granted to certified attorneys by the Supreme Court and the New Jersey Board on Attorney Certification in recognition of their ‘education, experience, knowledge, and skill for each designated area of practice.’”

The NJSBA argued that the plain language of R. 1:39-1 through 1:39-9 regarding Specialty Certification of Attorneys is clear that referral fees can be paid to attorneys, not limited to attorneys barred in New Jersey, and that a referral fee is not a legal fee for service. Enumerating several instances in the court rules where the words “out-of-state” and “New Jersey” are used to describe attorneys, the NJSBA argued that where there is reference simply to “attorney” there is no limitation on who may receive a referral fee.

With regard to the referral fee as a legal fee, the NJSBA further argued that Opinion 745 conflates payment of a fee under R. 1:39-6(d) with division of a legal fee under R.P.C. 1.5(e). However, R. 1:39-6(d) specifically provides that a lawyer who refers a matter to a certified attorney is entitled to the payment of a referral fee “without regard to the services performed or responsibility assumed by the referring attorney.” The NJSBA cited Eichen, Levinson & Crutchlow, LLP v. Weiner, 397 N.J. Super. 588, 595-97 (App. Div. 2008), which distinguished compensation for work on a matter from a referral fee, the NJSBA said.

As further support to reverse Opinion 745, the NJSBA argued it would discourage referrals to knowledgeable New Jersey attorneys, which would have adverse consequences to the client and a loss of confidence in the justice system.

“One purpose behind allowing payment of a referral fee involving a certified attorney is to encourage the referral of matters to experienced attorneys,” the NJSBA said. “By precluding payment of a referral fee to an out-of-state attorney, Opinion 745 incentivizes the out-of-state attorney not best suited to handle a particular claim on behalf of a New Jersey client to nevertheless seek pro hac vice admission to handle the matter or to perform a portion of the ‘services performed’ in order to derive a fee under R.P.C. 1.5(e).”

Other legal groups filed petitions seeking review of the opinion for similar reasons, including several county bar associations, the New Jersey Association for Justice, Trial Attorneys of New Jersey and the American Board of Trial Advocates.

The NJSBA awaits a disposition on the petition for review.

April 22, 2024

Supreme Court Declines to Adopt Regional or Statewide Madden Assignments, Updates Court-Appointed Attorney Form

The state Supreme Court will not regionalize or create a statewide model for assignment of Madden counsel, the Court announced in a Notice to the Bar addressing a recommendation by the Working Group on Pro Bono Assignments to examine how matters are assigned to attorneys. The Court also said it would refine data collection practices and statistical analysis regarding Madden assignments and would explore an Attorney Online Registration System to collect information to improve pro bono assignments.

The New Jersey State Bar Association made recommendations on Madden assignments, including that in anticipation of fully abolishing Madden assignments, the Court consider regionalizing assignment pools, rather than assigning attorneys by county; and publishing comprehensive data on right to counsel matters and assignments.

The Court noted recent developments impacting Madden assignments, including establishing a unit within the Office of the Public Defender to provide legal representation for anyone on parole charged with a violation of parole or who is under consideration for parole revocation. These matters were usually assigned to attorneys from the Madden list. The Court also recognized S2437 (Pou), which would direct the Office of the Public Defender to provide legal representation for contempt of domestic violence cases. These represent the highest percentage of Madden assignments.

“In light of these enacted and potential changes to the types and volume of cases handled by the Office of the Public Defender, as contrasted to those cases potentially requiring court assignment of Madden counsel, the Court has considered only certain portions of the Working Group’s report and recommendations,” said Judge Glenn A. Grant in the Notice to the Bar.

In addition to declining to regionalize Madden assignments and enhance data collection and analysis of Madden assignments, the Court promulgated a form to be used by defendants applying for Madden counsel. The Judiciary created a packet for litigants who want to apply for a Court Appointed Attorney and explained who is eligible.

The NJSBA drafted a comprehensive report – Achieving Effective Counsel in Right to Counsel Matters – that the Working Group relied upon in making its own recommendations to the Court. In addition to calling for the abolition of Madden assignments in favor of publicly compensated counsel, the Right to Counsel Committee of the NJSBA underscored the importance of providing effective counsel by pairing attorneys with expertise in a particular matter to the assignment. Those recommendations also included avenues for attorneys to provide pro bono work consistent with their skills. The NJSBA has advocated for S2437 to be passed into law and continues to work with stakeholders to abolish Madden assignments.

Here is a full copy of the Notice to the Bar and Pro Bono Attorney Application Packet

April 15, 2024

Expungement Process Needs Improvements, NJSBA Says

The New Jersey State Bar Association is calling for an end to the “genuine crisis with the expungement of criminal records.” In a letter to the Hon. Glenn A. Grant, Acting Administrative Director, and New Jersey Attorney General Matthew J. Platkin, NJSBA President Timothy F. McGoughran raised concerns about a process that “has been plagued by delays” impacting tens of thousands of individuals seeking employment, housing and other opportunities.

In 2019, cannabis reform led to an electronic system to process expungements, regrading certain marijuana convictions to allow for immediate expungements and reduced waiting periods to expunge both indictable and disorderly person’s convictions. In 2021, the New Jersey Supreme Court ordered the automatic expungement of over 360,000 records, specifically including those records for solely cannabis-related offenses.

“Nearly three years later, despite these changes, the handling of expungements remains a labyrinthine process, often differing from county to county,” McGoughran said. “As practitioners on all sides of the expungement system, our members continue to experience issues that frustrate the goals of the legislation and negatively impact residents and the newly created cannabis marketplace.”

Four main concerns outlined in the letter are:

Lack of Uniformity in Application of the Expungement Statute: Despite AOC Directive #05-23, which provides guidance on expungements — specifically the compelling circumstances standard, expedited expungements and eCourts — the expungement process varies widely county by county. Some counties interpret certain convictions as eligible for expungement and some do not. Furthermore, support for the new statutory standard of compelling circumstances may be met with a description of a petitioner’s rehabilitative journey in one county and a demand of actual evidence of rehabilitation in another county.

Clean Slate Expungement petitions suffer the same disparate treatment where some counties read the statute to preclude expungements where the application includes an indictable offense along with multiple disorderly persons and/or municipal ordinance violations. Finally, some counties will permit any balance due on fines and restitution, permitting such fines to be converted to a civil judgment and carrying on with the expungement, while other counties demand proof that non-payment was not willful.

Backlogs and State Police Access to eCourts: There is a significant backlog in processing expungement petitions across the state. While the statute requires a hearing date be set no more than 60 days after the filing of a petition for expungement, delays of up to 24 months are not unheard of, NJSBA said. Pointing to a class action lawsuit by the Office of the Public Defender, the NJSBA points out that the State Police’s lack of access to a petitioner’s file in order to review and/or file any objections before an expungement is granted would address this delay and avoid an unnecessary and potentially costly secondary review.

State Police Secondary Review Process: The NJSBA points out that the secondary review of expungements petitions following a court order not only conflicts with the plain language of the expungement statute, but also raises potential constitutional concerns. . The NJSBA said the secondary review process may implicate  the separation of powers clause because determining eligibility for expungement is a function of the Judiciary and has already been completed by the time an expungement petition is granted.

Expungements of Foreign Nationals: Immigration courts and immigration agencies do not recognize or extend comity to state expungements for foreign nationals. As a result, the entry of a plea at any time — even if the matter has been dismissed, vacated, and expunged — equates to a conviction unless there is explicit language that the plea itself has been vacated. Those with automatic expungements are forced to apply to the Superior Court to vacate the expungement in order to obtain these records in support of immigration relief from removal or an immigration benefit. The resulting burden adds delays and significant expense for foreign nationals.

The NJSBA set forth seven recommendations to improve the expungement process, including ending the secondary review by the State Police, issuing a directive to adopt a uniform application of the expungement process, and granting State Police access to eCourts so that they can more timely object to a petition prior to the grant of an expungement. A full copy of the letter may be found here.

April 8, 2024

 NJSBA Submits Comments on Supreme Court Civil Practice Rules 

The New Jersey State Bar Association submitted comments mostly in support of the recommendations of the Supreme Court Civil Practice Committee in its January 2024 Report. The recommendations include updates to the rules to formalize electronic service of motions and discovery, discovery issues generally, and arbitrations.

“The NJSBA recognizes the importance of ensuring our rules are clear, establish procedures that are fair to all parties, and, most importantly, advance the interests of and access to justice,” NJSBA President Timothy F. McGoughran said in his letter to the Administrative Office of the Courts.

Specifically, the Association commented:

1. 1:5-2 and R. 1:11-2: Manner of Service; Withdrawal or Substitution 

The NJSBA supports the proposed amendments to R. 1:5-2, which addresses service by email of discovery demands and motions – but not original process. The proposed amendment formalizes the general practice post-COVID of electronic service of motions and discovery demands. Counsel would be permitted to serve one or all of the email addresses designated in eCourts, which eliminates the potential for emails being sent to a general mailbox to help ensure the email reaches the intended recipient.

The proposed amendment would also limit the rule amendment for service only between attorneys to protect self-represented litigants who may otherwise have limited access to technology.

Regarding withdrawal or substitution, the Committee proposed amendments to address two issues. Rule 1:11-2 is proposed to be amended to address missing contact information for non-lawyer parties where an attorney is withdrawing or seeking to be relieved from a matter and a non-lawyer is being substituted into the case. The proposed amendments would require the full name of the party or parties who will be self-represented, the current mailing address(es), and telephone numbers to be included with an application to be relieved as counsel.

The second proposed amendment would codify a prior rule relaxation that established confidentiality standards for certain landlord-tenant actions arising out of non-payment or habitually late payment of rent owed during the pandemic. This amendment addresses legislation that became effective Dec. 1, 2021.

The NJSBA pointed out that these proposals “reflect practical, reasonable amendments to Court Rules, will help to streamline communications among counsel, and will provide attorneys with critically needed information in pro se matters.”

1. 2:11-4: Attorney’s Fees on Appeal

The Association suggest language to expand the scope of this proposed amendment, which provides a mechanism by which a party who prevailed on its appeal but is not yet a “prevailing party” is entitled to attorney’s fees and costs under a relevant fee-shifting statute. The amendment directs the party to apply for fees and costs after the remanded matter ends in the trial court.

The NJSBA suggest that in section (b) where the proposed amendment directs the timing and jurisdiction of a motion for attorney’s fees, that it be amended to read that if a motion for reconsideration is filed with any appellate court, a motion for fees shall be filed 10 days after the ruling on the motion for reconsideration by the last appellate court to rule on a reconsideration motion.

1. 4:14-2: Notice of Examination; General Requirements

The Association urges clarification to the proposed amendments, which address issues that arise where the incorrect individual appears for a deposition as a corporate designee and does not possess relevant information. The NJSBA points out that the amendments are meant to reflect Federal Rule 30(b)(6) regarding organization depositions regarding the ability of parties to confer with non-party organizations about those individuals who will appear at a deposition on behalf of the organization to ensure that they possess information about the matters that will be examined.

The suggested change to the proposal would be to move reference to “conferring in good faith about the matters for examination” from subparagraph (d), which addresses “production of things” to subparagraph (c) regarding the examination of a witness.

“This language also reinforces the intent of the proposed changes that all parties have an opportunity to participate in any pre-deposition discussions with a non-party about the scope of the non-party’s deposition in order to prevent any biased manipulation of the testimony,” the NJSBA said.

1. 4:19-1, -2: Physical and Mental Examination of Persons and Observation and Recording of Physical and Mental Examination of Persons

The Association recommends additional revisions to these proposed amendments, which clarifies the procedure regarding who may attend a defense independent medical examination (IME) as well as whether and how such examinations may be recorded.

The amendments suggested by the Association include eliminating a reference to matters pending solely in the Law Division, Civil Part to ensure the provisions apply to any matter to which the Part IV Rules apply and not just civil matters filed in the Law Division; removing the reference to “business” address to account for single individuals acting as an observer not affiliated with a business; clarifying that a curriculum vitae is only required from individuals who will serve as an expert witness; and clarifying the reference to the parties in last sentence of the Rule to be the party serving notice of the exam.

1. 4:21-5 and -6: Arbitration Award, Entry of Judgment De Novo

The Association suggests a minor edit to the proposed amendment to these rules, which clarifies that the uploading of an arbitration award into the court’s electronic filing system (eCourts) constitutes filing and service by the court of the award under the Rule.

“To avoid confusion about when an arbitrator’s report is actually filed, the NJSBA recommends changing the first reference to the term “file” to “transmit” so that it is clear the award is only transmitted from arbitrator to civil division manager, not filed,” the NJSBA said.

1. 4:22-1: Request for Admission

The NJSBA supports the proposed amendments to this rule, which would permit requests for admissions to extend to opinions as well as facts. The amendments are consistent with previous comments submitted by the NJSBA on this rule.

6. 6.1-2, 6:3-4 and 6:4-3: Cognizability; Summary Actions for Possession of Premises; Interrogatories; Admission; Production

The NJSBA opposes these proposed amendments that seek to limit the available relief in an ejectment action to possession of the premises only and requiring a separate action to be filed for damages. Among the concerns raised is that the statutes that govern these actions permit both possession and monetary actions to be awarded at the same time in a summary action.

The Association argues that requiring a separate action to recover monetary damages goes against judicial economy. Furthermore, in trespasser/squatter situations, the defendant is oftentimes unknown and therefore it would be difficult to file a subsequent action for damages if the plaintiff does not know the party’s identity and cannot properly serve them. The proposed amendments give “a tremendous advantage to the trespasser/squatter and a landlord who illegally evicts” by placing additional hurdles on the plaintiff, rather than the wrongdoer.

Finally, the Association points out that unlike landlord-tenant actions, there is no separate docket for ejectment actions and therefore both the possession action and the action for money damages would be designated as DC Dockets. This could lead to confusion for everyone involved.

A full copy of the 2024 Report of the Supreme Court Civil Practice Committee may be found here. A copy of NJSBA’s comments may be found here.

April 1, 2024

NJ Law Revision Commission, NJSBA to Review Withholding of Gets

The New Jersey Law Revision Commission has agreed to collaborate with the New Jersey State Bar Association to study the issue of withholding a get in a religious divorce. In a public meeting last week, the commissioners heard from past Chair of the Family Law Section, Sheryl L. Seiden, on recent case law relative to gets and the impact on withholding a get from a woman seeking a divorce in the Jewish faith.

Last October, the Association requested that the NJLRC review the issue in light of two recent matters involving the withholding of gets. In Satz v. Satz, the Appellate Division held that where there was language in the marital settlement agreement that the parties agreed to submit to the jurisdiction of the beis din (“Jewish court”) and accept its judgment, the civil court had jurisdiction over the husband to issue sanctions if the husband did not cooperate with the decision of the beis din.

Less than a month after the Satz decision, in S.B.B. v. L.B.B., the Appellate Division reversed the issuance of a final restraining order resulting from the husband’s complaint of harassment. The wife created and disseminated a video asking Jewish community members to “press” her husband to deliver a get after he refused to do so. In S.B.B., the Appellate Division held that such speech was protected under the First Amendment, which “protects the right to coerce action by ‘threats of vilification or social ostracism.’”

At its meeting last week, commissioners discussed the issue and the potential Constitutional issues. The NJLRC agreed to collaborate with the NJSBA to explore the issue further to ascertain whether it should recommend amendments to New Jersey statutes to address the issue of withholding gets.

A full copy of the NJLRC’s memo outlining the issue may be found here.

NJSBA Signals Crisis of Expungement of Criminal Records, Urges Clarification

In a letter to the Administrative Office of the Courts and to the Attorney General’s Office, the NJSBA outlined an expungement process “plagued by delays” and urged efforts to clarify the process. It identified areas of concern rooted in lack of uniformity, backlogs, unnecessary secondary reviews, and other issues.

“Members of the NJSBA are concerned about a genuine crisis with the expungement of criminal records, particularly the swift expungement of records that was anticipated as part of cannabis reform,” said NJSBA President Timothy F. McGoughran. He pointed out that the problematic expungement process “has negatively affected employment, housing and a host of other potential opportunities and benefits for those the new law was meant to assist.”

Numerous examples of inconsistencies regarding the application and interpretation of the new expungement statute are evident across counties, said the NJSBA. Those examples include various interpretations of convictions eligible for expungement; differing requirements for meeting the new statutory standard in different counties when considering an expungement of a third- or fourth-degree controlled dangerous substance conviction; and inconsistencies and outdated proof requirements that exist in some counties.

Clean Slate Expungements also require clear guidance as counties treat differently those cases where a person has an indictable offense along with multiple disorderly persons offenses and municipal ordinance violations. The payment of fines has also been treated differently county by county, with some counties converting the fines to a civil judgment and others requiring testimony that nonpayment was not willful. The latter poses an unnecessary burden to the applicant and is not required under the statute.

The NJSBA also identified as an issue the “enormous backlog” in processing expungement petitions. The statute requires a hearing date no more than 60 days after the filing of a petition. Some counties are processing expungements in a timely manner, while others face delays of up to 24 months due to lack of sufficient resources to comply with the statute.

The timeframe for the New Jersey State Police to process expungement orders and seal an individual’s criminal record can take up to two years after an order is granted. While there is a class action lawsuit filed by the Office of the Public Defender, the NJSBA has recommendations to eliminate some of this delay by providing the state police’s attorneys access to the state’s online expungement portal.

The Association learned that the NJSP conducts a secondary review of expungement petitions after the receipt of a signed court order granting the petition before sealing the record. The NJSBA questioned this practice as the current statute does not allow for a secondary level of review by the NJSP.

The Association also noted that the immigration courts and immigration agencies do not recognize or extend comity to state expungements for foreign nationals, where such pleas equate to a conviction unless there is explicit language to the contrary. Foreign nationals who have had their records expunged must apply to the Superior Court to vacate the expungement in order to obtain records in support of immigration relief, causing delays and significant expense to foreign nationals.

A full copy of the NJSBA’s letter may be found at njsba.com.

March 25, 2024 

NJSBA to Argue before State Supreme Court as Amicus in DWI Sentencing Case 

The New Jersey State Bar Association will continue its work as a friend of the court in a case that involves more than 20,000 breath samples from driving while intoxicated (DWI) cases.  

Jeffrey Evan Gold will argue the Association’s amicus position in State v. Zingis on Tuesday, March 26, when the New Jersey Supreme Court hears arguments in Trenton.  

The case focuses on the state’s obligation, in a prosecution for a second DWI offense, to prove that a prior DWI conviction was not based on Alcotest breath sample results involving former State Police Sgt. Marc Dennis. Dennis was charged with misconduct for failing to properly calibrate Alcotest machines. That has called into question thousands of tests produced in DWI stops where Dennis calibrated the machines.  

The Association has been part of the case during briefing and throughout special master hearings. Gold and NJSBA members John Menzel and Michael Troso wrote the NJSBA briefs. 

“The Zingis questions are on discovery and burdens of proof. How does the State satisfy its discovery obligations, when seeking an enhanced sentence, to disclose to a defendant that Dennis calibrated a subject test they took during the arrest which ultimately convicted?” the Association stated in a brief. “What is the burden of proof on the State when it knows (collectively) that a Dennis calibration was associated with the prior arrest, versus when it knows he was not?”  

The Association has urged the Supreme Court to follow the Special Master’s recommendation to use an index to track the cases in question and an NJSBA-created repository containing calibration certificates for all machines known to have been calibrated by Dennis as a resource to determine if a prior conviction may have been tainted.  

The Association said the Supreme Court should make the index and repository widely available, with certain protections, to provide notice to potentially aggrieved defendants and quickly obtainable evidence for active prosecutions. The Association further stressed the importance of the information being available for those contemplating post-conviction relief motions – rather than those already seeking post-conviction relief. It also urged the Supreme Court to require notice be provided to the Association regarding any modification of the repository with an opportunity to be heard before any modification could be accepted by the Court. 

Arguments begin at 10 a.m. To watch live, visit njcourts.gov.  

March 18, 2024

Open Public Records Act Needs Amendments, Says NJSBA 

Two New Jersey legislative committees heard lengthy testimony on S2930 (Sarlo)/A4045 (Danielsen), which would make significant changes to the state’s Open Public Records Act (OPRA). The New Jersey State Bar Association did not take a position on the bill, but proposed three amendments to suggest ways to ensure attorneys who use OPRA for the benefit of their clients don’t face unnecessary hurdles or issues.  

“We appreciate your concerns with the current law and certainly understand the intention to balance the equities,” said the NJSBA to the bill’s sponsors. It urged amendments to clarify that attorneys are not commercial requestors and to remove the prohibition that attorneys may not seek documents that are part of a discovery request or a court order. The Association also signaled concerns about the ability for a government entity to reject a request for a document that is “maintained by another public agency.”  

The bill amends the definition of “commercial purpose” to include the “direct or indirect use of a government record for sale, resale, solicitation, rent or lease of a service, or any use by which the user expects a profit either through commission, salary or fee.” There are exemptions for media and educational uses. The Association argued that this definition unwittingly sweeps in attorneys who use OPRA for a number of purposes. In addition, the bill would require a requestor who is making the request on behalf of a third party to disclose the name of the person on whose behalf the request is being made. NJSBA argued this could potentially violate attorney confidentiality in some circumstances.  

The bill also prohibits an attorney’s request for documents “if the record sought is the subject of a court order in the legal proceeding or if compliance would otherwise be unreasonable, oppressive or duplicative of an already pending discovery request made in that legal proceeding.” That same clause requires the attorney to certify whether the government record is being sought in connection with a legal proceeding and identify the proceeding, including disclosing a party of interest, that party’s attorney and any person acting as an agent for or on behalf of that party. The Association said that the Supreme Court has already held that documents that do not have to be disclosed due to a court ruling does not translate into a prohibition on obtaining the same document through OPRA.  

Finally, the Association urged removing the section involving other public agency documents because it raises concerns that it unduly burdens not just the requestor who has to go to another agency for the record, but also the other public agencies.  

The NJSBA continues to review the bill and any amendments and asked to work with the sponsors on these and other issues that were raised during that review.  

March 11, 2024

Seven Get Nod for State Superior Court Bench

The New Jersey Senate Judiciary Committee advanced seven nominees for appointment to the state Superior Court bench. Six are from  Bergen County and one is from Ocean County. Pending a vote of the Senate later this month, if the hopeful jurists are approved judicial vacancies would go down to 41.

“We’re getting where we should be and I think the court systems are a lot more normalized now,” said NJSBA President Timothy F. McGoughran in an interview with NJ Spotlight News.

The nominations were announced days after the New Jersey Supreme Court said it was lifting the moratorium on conducting civil and matrimonial trials in the Somerset/Hudson/Warren Vicinage. While the nominations are helping to stem current backlogs, many counties are still working to get through the backlog of matters.

Passaic County is the only vicinage currently under a moratorium on civil and matrimonial matters. Passaic County Bar Association President-Elect Toni Belford Damiano expressed frustration at the mounting caseloads, which she says impacts families seeking divorces, in particular.

The NJSBA signaled a judicial vacancy crisis two years ago as vacancies increased following the pandemic. Vacancies were as high as 69 at the end of 2022. The slowdown in nominations compelled the Supreme Court to halt civil and matrimonial trials months later while the vacancy rate continued to hold steady during 2023. At the end of 2023, there was still a 12%shortage of judges in the Superior Court with retirements on the horizon.

Several candidates remain in the pipeline for judicial nomination, which – if confirmed – would bring the vacancy rate to more manageable numbers. The NJSBA continues to monitor the issue and urges “state leaders – the governor and the state Senate – to fulfill their Constitutional duties and act swiftly to approve more qualified candidates to the Judiciary

COAH Up for Consideration Again Before Senate Committee

On March 11 the New Jersey Senate Budget and Appropriations Committee will consider A4 (Lopez)/S50 (Singleton), which abolishes the Council on Affordable Housing and significantly overhauls municipal responsibilities regarding affordable housing. The NJSBA did not take a policy position on the issue, but recommended amendments to address the obligations imposed on municipalities to meet deadlines and the use of trust fund monies for attorney’s fees.

In its latest round of amendments, the bill expanded some of the timelines relative to the Housing Element and Fair Share Plan. However, the bill still restricts the use of municipal development trust funds on attorney’s fees to obtain a Judgment of Repose, contest a determination of the municipality’s fair share obligation, or on costs of any challenger in connection to a challenge to the municipality’s obligation, housing element or faire share plan.

The NJSBA raised concerns that such a prohibition would undoubtedly impact smaller municipalities that may be required to hire special counsel to address these complex issues. A recommendation was made to amend the bill to remove the prohibition to ensure that municipalities have the resources to appropriately address any such challenges.

Sponsors publicly anticipated amendments to address concerns raised at prior hearings. New language is anticipated to be made available next week.

March 4, 2024 

State Supreme Court Rescinds Directive Prohibiting Pleas for DUIs 

In a turnabout, the New Jersey Supreme Court issued an order earlier this week rescinding a directive that would prohibit plea deals for driving under the influence (DUI) matters. The New Jersey State Bar Association supported the legislation which, among other things, extended the deadline to permit the installation of ignition interlock devices (IID) and permitted plea agreements for certain DUI or refusal charges. The Association did not take a position on the issue of the directive, but were urged by members to review the issue in light of its support of the legislation.  

On Dec. 21, 2023, Gov. Phil Murphy signed the bill into law, representing a significant change in the way DUI matters are handled in municipal court. Following enactment of the new law, the Administrative Office of the Courts issued a memorandum to assignment judges and municipal court presiding judges announcing that Guideline 4 for Operation of Plea Agreements in the Municipal Courts of New Jersey remained in effect, in contradiction to the law.  

The memo drew strong criticism from municipal court practitioners and from Senate President Nicholas Scutari, who sponsored the bill.   

However, last week the Supreme Court reversed course and issued an order withdrawing Guideline 4. After recounting the case law on Guideline 4 and the parameters of governing pleas by the other branches of government, Chief Justice Stuart Rabner concluded that cooperation among the branches of government outweighed a “test of the limits of their power.”  

“Accordingly, in the interest of comity, the Court adopts the statement of policy in the amendment to N.J.S.A. 39:4-50 and withdraws Guideline 4,” said Chief Justice Rabner. The order is effective immediately.  

A full copy of the order can be found here.  

Court Issues Notice On Rule Relaxation in Auto Theft Offenses Ahead of Legislative Efforts  

The state Supreme Court issued a Notice to the Bar announcing that the Court Rules relative to certain auto theft offenses and violations of pretrial monitoring conditions have been relaxed. The order establishes a presumption that a complaint-warrant, not a complaint-summons, would issue upon a finding of probable cause that a defendant has committed certain auto theft offenses or certain violations of the conditions of pretrial release. The order implements two recommendations of the Reconvened Joint Committee on Criminal Justice regarding public safety concerns about car thefts and the high rate of repeat offenses. The Court noted that these amendments “aligns with legislative efforts to support public safety through tougher enforcement of those offenses.”  

A full copy of the order is available here.  

Archived Capitol Reports from 2024