The New Jersey State Bar Association (NJSBA) urged clarification on arbitration clauses in retainer agreements following the state Supreme Court’s opinion in Delaney v. Dickey, offering proposed model language for its consideration. The comments were submitted to the Court’s Advisory Committee on Professional Ethics last week.
The language was drafted to include disclosure requirements referenced in the Court’s opinion in Delaney, which was decided in December 2020. Delaney signaled a significant change in the obligation on the part of an attorney to explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. The matter was referred to the Advisory Committee on Professional Ethics to consider proposing “further guidance on the scope of an attorney’s disclosure requirements.”
The NJSBA participated as amicus in the matter to urge the Supreme Court to reverse the Appellate Division decision, arguing that it expanded the Rules of Professional Conduct without going through the process of comment and review. The Court’s decision was prospective, thereby providing an opportunity to consider draft language. After referral of the issue to the committee, the NJSBA submitted the following proposed language for consideration:
By agreeing to submit these matters to arbitration, you understand that (1) you are giving up your right to have a trial before a jury in a courtroom open to the public; (2) you are agreeing to have your dispute decided by an arbitrator, instead of a judge or jury; (3) the proceeding is known as “binding arbitration,” which is different from non-binding arbitration proceedings that occur in the Superior Court; (4) the right to appeal the arbitrator’s decision or have it reviewed is severely limited; in most instances, the arbitrator’s decision will be final and all parties will be bound by it, although there may be very limited circumstances under which the arbitrator’s decision can be appealed or reviewed; (5) the decision of the arbitrator may be confidential and you may be prohibited from revealing it or discussing it with anyone; (6) you may be fully or partially responsible for the costs associated with an arbitration proceeding, including payments to the arbitrator; and (7) the information that is required to be shared between the parties, and the evidence that can be presented, in arbitration may be more limited than in a judicial forum.
The NJSBA is closely monitoring this issue.
As judicial nominees move forward, NJSBA urges more to follow
The NJSBA met with key officials to discuss the crisis of judicial vacancies in New Jersey. “It is one that threatens that system to its very core and the consequences of which will be felt most deeply by the residents of our great state,” NJSBA President Kimberly A. Yonta said in a letter to Governor Phil Murphy.
Twelve judges were approved in mid-March, but, prior to their approval, New Jersey had 74 judicial vacancies. This represents 20% of the bench and is the highest number of vacancies the state has ever faced, Yonta said. “The result is that too few judges face enormous pressures to keep up with a flood of cases from people still suffering as a result of the COVID-19 pandemic.”
The NJSBA continues to urge swift action to nominate judges in anticipation of a number of issues that will continue to rise, including landlord-tenant issues and criminal trials. “To be crystal clear, the existing bench will not be sufficient to handle the crush of cases that are coming,” Yonta said.
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.