New Jersey State Bar Association
Board of Trustees Report
January 15, 2021
Note: This is a summary of the recent Board of Trustees
meeting, which was held virtually due to the ongoing public health pandemic. It
does not constitute official minutes.
Background screening for guardians: The NJSBA submitted
comments on proposed rule changes that seek to ensure the protection of
incapacitated adults from the risks of potential abuse, neglect, and financial
exploitation by guardians. The Association recognized the laudable purpose of
the proposal, but expressed concerns that the new certification and
fingerprinting requirements could have a disparate impact on individuals with
lower incomes. Further, the Association said the requirement to disclose all
civil and criminal judgments is overly broad and will result in proposed
guardians having to disclose information that is not germane to a determination
of their qualifications.
Right to Counsel Report and Recommendations: The Board
accepted the Achieving Effective Representation in Right to Counsel Matters
Report from the ad hoc Right to Counsel Committee. Former NJSBA President
Evelyn Padin created the committee to address growing concerns about Madden
assignments in matters where the Court has concluded indigent litigants are
entitled to legal representation. The Trustees agreed to share its
recommendations with the relevant groups, stakeholders, officials, agencies and
organizations for discussion, analysis and comment, with an expectation of
future recommendations being presented to the Board for specific action.
The Report found the Madden system of random assignments
does not always provide effective representation because it randomly assigns
attorneys to matters irrespective of their practice area. Rather, a
recommendation was made to abolish the Madden system in favor of alternatives
that match counsel appropriately with the matter, regionalize assignments and
urge the Legislature to fully fund the provision of effective representation in
cases where there is a right to counsel. The recommendations include increasing
compensation to pool attorneys within the Public Defender system and
coordinating with non-profit providers. The Report also urged the Judiciary to
apply assignments in a consistent way throughout the state and foster greater
transparency in assignments and exemptions while the Madden system continues.
Amicus: The Board granted the Executive Committee
authority to authorize amicus participation — after review and recommendation
by relevant groups within the NJSBA — in State v. Vega-Larregui, the pending
challenge to virtual grand juries that is now before the Supreme Court.
American Bar Association: The Board received an update
from former NJSBA President Karol Corbin Walker, who is the New Jersey delegate
to the American Bar Association. Walker continued the tradition of meeting with
the Association prior to the ABA’s signature events and she gave an overview of
the issues the organization will tackle when it gathers for the Mid-Year
Meeting in February. In a related development, the Trustees voted to support
resolutions that will be considered at that meeting, including:
• 10b,
which would require that federal, state, local and territorial courts consider
diversity for all appointments;
• 10e,
which urges the adoption of the federal Daniel Anderl legislation to support
judicial safety in light of the fatal attack on the home of Federal District
Court Judge Esther Salas this summer. The measure urges Congress enact laws to
prohibit the disclosure of personally identifiable information of active,
senior, recalled, or retired federal judges, including magistrate judges,
bankruptcy judges, administrative law judges, administrative judges, and
immigration judges, and their immediate family who share their residence,
including but not necessarily limited to home addresses or other personal
contact or identifying information; and
• 106a,
which encourages the use of pronouns consistent with a person’s gender identity
within the legal profession and justice system, including in filed pleadings,
during mediations and court proceedings, and within judicial opinions.
Government relations: The Board supported several pieces
of pending legislation. The Association plans to reach out to the sponsors of
the bills to provide feedback and suggestions from practitioners in the field.
The measures are:
A4616 Murphy/S2880 Beach, which would require residential
psychiatric and long-term care facilities to provide certain financial
information to facility residents and other individuals;
New Jersey Law Revision Commission Report, which concerns
changes to unemployment law statutes; and
SB4711/HR8591, which is the federal Daniel Anderl
Judicial Security and Privacy Act of 2020 that would prohibit the disclosure of
personal information of former, active and retired judges and establish the
crime and civil action remedy for disclosure of such information. The NJSBA
supported the legislation, which is consistent with its support of the
legislation on the state level, to protect the independence and integrity of
the Judiciary.
Cybersecurity update: The Board received a cybersecurity
briefing about the significant Solar Winds cyberattack and Microsoft hack that
have wreaked havoc for hundreds of government agencies and businesses,
including the New Jersey legal community.
The Solar Winds attack is regarded by industry officials
as a “nightmare scenario.” The software that was hacked is used to manage a
wide range of informational technology platforms and functions. The attack
allows spyware called “Teardrop” to access sensitive information, beginning as
far back as 2019. While the focus of the attack was on large businesses and
government agencies, almost everyone is likely to work or associate with an
organization that was directly hit, state bar officials said.
The Microsoft hack is reported as an attack on its
platform by Russia. The hack extended far beyond the original reach to the
general populous and the information it compromised extended to a wide range of
transactions and files, including tax returns, GPS locations, court records,
credit card information, company memos and legal records.
The NJSBA has begun to see infections related to these
events, primarily via incoming emails. The NJSBA has taken substantial steps to
protect its records and has alerted members who have shown signs of being
hacked.
To stay safe, it is important to:
• Never
trust free software and never reuse passwords;
• Regularly
update software and computers;
• Scan
all inbound and outbound traffic;
• Monitor,
detect and report security events and rare behavior;
• Prohibit access to your resources from specific regions, and only allow access from countries where you have business; and
• Have a good technology partner.