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.

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