Report of the NJSBA Board of
Trustees
January 2022
Note: This does not constitute
official minutes.
Fee-shifting retainer agreements: The
Board made nine specific comments about proposals in a Court report related
to fee-shifting retainer agreements.
In response to Advisory Committee on Professional Ethics'
recommendation for explicit disclosure of identifiable fees or costs and oral
review of such provisions, the NJSBA urged reconsideration of the oral review
provision. “This new requirement would constitute a significant and unjustified
departure from current contract law and would raise potential statute of fraud
issues,” said the NJSBA in its letter.
The ACPE recommended that estimated fees and costs and a range of
value of the case be set forth in the initiation of representation, to which
the NJSBA cautioned could lead to a multitude of issues including the
impossibility of such a mandate due to the number of variables in each case;
the unpredictability of costs and case values at or near the onset of the
matter; and the implicit promise an attorney may be forced to make of the
outcome of a case.
With respect to keeping clients apprised of rising costs and fees
and requiring informed consent when a client’s fees and costs will likely
exceed a client’s recovery, the NJSBA agreed that a continuing obligation to
keep a client reasonably informed of fees and costs is consistent with a
lawyer’s obligation under the Rules of Professional Conduct. However, it urged
the ACPE to consider letting attorneys use their best judgment and discretion
about the specific information that is necessary to meet their obligations to
communicate with a client to ensure that the client can make informed decisions
about the case.
Government affairs: The Board supported A-1978 (Mukherji), which would provide that a defendant who participated
in a diversion program for certain marijuana offenses on
prior occasion may again participate under certain circumstances. And the
trustees supported S-660 (Oroho)
which would establish that “100% disabled veterans” are not
required to submit to the Motor Vehicle Commission certain documentation to
renew parking privileges.
Pro bono representation: The Board also supported
a Court proposal, but with adjustments, to allow some law students to
appear pro bono in tax court in certain instances
and with attorney supervision. The NJSBA recommended the proposal define law
student as someone who has completed one-third of their course requirement for
graduation and include law graduates and a role for a student’s law
school.
“The
NJSBA applauds the efforts of the Court to expand access to legal assistance at
all levels, while providing pro
bono opportunities for law students early in their careers.
The proposal will also introduce law students to one of the many ways they can
give back from their first days in the profession,” NJSBA President Domenick
Carmagnola wrote in the letter.
The Board recommended that a
separate Court proposal to allow out-of-state attorneys to provide pro
bono legal services to New Jersey clients be further developed before
it is adopted. In a letter to the Judiciary, the NJSBA
said it did have significant concerns about how a proposed amendment to a rule
that would permit attorneys not licensed in New Jersey to provide pro bono legal services would be structured and
whether it would provide the anticipated benefit to litigants.
Vacancies filled: The Board filled a pair of vacancies, which included swearing in John
Macce as a Hunterdon County
trustee on the board. Macce, a founder of Macce & Cresti in Clinton, filled
a vacancy created when Diana Fredericks resigned. The Board also approved Michael G. Donahue III, managing shareholder of Stark &
Stark in Princeton, to fill a vacancy on the NJSBA Nominating Committee.
