The New Jersey State Bar Association (NJSBA) urged the Supreme Court’s Advisory Committee on Professional Ethics (ACPE) not to expand the disclosure requirements for arbitration provisions in retainer agreements beyond those outlined by the Court in Delaney v. Dickey (A-30-19). The NJSBA instead recommended including in the Rules of Professional Conduct requirements set forth in the Dec. 21, 2020, opinion, finding that an arbitration provision that references a document regarding arbitration rights be presented to the potential client along with an explanation of those provisions.
The NJSBA participated as amicus curiae, arguing that the lower court engaged in improper rulemaking when it imposed additional requirements on attorneys utilizing arbitration provisions in their retainer agreement. The Supreme Court’s decision echoed these concerns, stating in its opinion that its decision was prospective. It also referred the matter to the Advisory Committee on Professional Ethics to consider proposing “further guidance on the scope of an attorney’s disclosure requirements.” Such action was called upon by the NJSBA in its amicus filing so the committee could consider the issues and invite public commentary.
Responding to a notice from the ACPE, the NJSBA provided the following recommendations for consideration:
- The disclosure requirements set forth in Delaney are sufficient and no other disclosure or information should be required
- The Delaney disclosure requirements should be incorporated into the Rules of Professional Conduct
- Model disclosure language should be published to promote uniform application and to better protect both attorneys and their clients
“In arriving at its recommendation, the NJSBA carefully reviewed the language suggested by the Court in Delaney, that attorneys who insert arbitration provisions in retainer agreements can meet their obligation to convey information about the advantages and disadvantages of arbitral and judicial forums by explaining key concepts,” said NJSBA President Kimberly A. Yonta in a letter to the ACPE. That key information includes an explanation that in an arbitration the client will not have a trial before a jury in a courtroom open to the public; the outcome of the arbitration will not be appealable and will remain confidential; the client may be responsible, in part, for the costs of arbitration proceedings, including payments to the arbitrator; and the discovery available in arbitration may be more limited than in a judicial forum. This is what the Court enunciated in its decision in Delaney.
The NJSBA is working to submit model language for the ACPE’s consideration for inclusion in retainer agreements to satisfy the new disclosure requirements, and will continue to monitor further action in an effort to address the concerns by the Court and balance an attorney’s obligation regarding same.
Oral arguments set in challenge to virtual grand juries
The Supreme Court will hear oral arguments in a challenge to the constitutionality of virtual grand juries next Monday. The NJSBA participated in amicus on the matter of State v. Vega-Larregui, with trustees Christopher J. Keating and Brian J. Neary on the brief. Neary will be arguing the matter on behalf of the NJSBA.
The NJSBA is urging the Court to delay grand juries until they can be safely held in person—which is imminent given the availability of vaccines and social distancing efforts. In support of this recommendation, the NJSBA argues that the constitutional infirmities of virtual grand jury trials far outweigh the need to hold them because of the questionable secrecy of grand jury proceedings, the ability of grand jurors to hear evidence and deliberate in a meaningful way with fellow grand jurors, and the likelihood that there will not be a sufficient record below.
Oral arguments are scheduled of 10 a.m. Arguments are available on njcourts.com.
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. To learn more, visit njsba.com.