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.
The New Jersey State Bar Association (NJSBA) is convening a working group to discuss implicit bias in the jury selection process in anticipation of the state Supreme Court’s Judicial Conference on Jury Selection this fall. In a letter to the Court last month, the NJSBA asked the Court to share information for examination and debate on the issue of jury selection. The announcement by the Court on the conference follows a ruling in State v. Andujar linking the number of peremptory challenges in New Jersey to the potential for discrimination and implicit bias in the jury selection process.
“The NJSBA is committed to meaningful participation in the upcoming Judicial Conference on Jury Selection examining the nature of discrimination in the jury selection process and how to effectively address it,” wrote Domenick Carmagnola in a letter to Acting Administrative Director of the Courts Glenn A. Grant. “We look forward to engaging with the invited members of the legal community in a probing conversation about the necessary steps to root out discrimination in the selection of juries.”
In Andujar, the Court reversed a conviction finding that the prosecutor singled out a Black juror by running a criminal background check on a potential juror based on his responses. The Court did not find purposeful discrimination on the part of the state, but held that the potential juror’s removal from the jury panel “may have stemmed from implicit or unconscious bias on the part of the state, which can violate a defendant’s right to a fair trial in the same way that purposeful discrimination can.”
The Court called for a judicial conference in Andujar to assess implicit bias and the jury selection process, and to recommend improvements. The judicial conference rule outlines those who are invited to attend. The NJSBA has urged the inclusion of “affinity bar associations and key individuals who have been zealous advocates and thought leaders on the jury selection process.”
The entire letter can be found at njsba.com.
NJSBA seeks amicus in ethics case on misappropriation and mandatory disbarment
The NJSBA filed for leave to appear as amicus curiae to seek a clear delineation of the Wilson rule and clarification of what constitutes knowing misappropriation in circumstances where trust accounting errors or insufficiencies are alleged. In the matter of Office of Attorney Ethics v. Wade, the Office of Attorney Ethics (OAE) recommended disbarment of an attorney under the Rules of Professional Conduct 1.15 for knowing misappropriation of client and escrow funds from her attorney trust account. The Disciplinary Review Board unanimously voted to disbar the attorney. The matter is pending an appeal in the Supreme Court. The amicus brief was written by NJSBA Past President Robert B. Hille and Abdus-Sami M. Jameel.
The matter emanates from an allegation that the attorney took client funds without her clients’ knowledge and authorization and failed to comply with the trust accounting requirements. The OAE claims the attorney admitted to the former and that she was intentionally non-compliant with trust accounting to cloak her personal use of the funds. The attorney argued that the misappropriation was caused by her “total financial ignorance and not an intent to steal.” She attributed her ignorance to deficiencies in her personal history and professional training which, when coupled with her assumptions regarding what funds were hers, led to allegations of misappropriation of funds.
Using the standard set forth in In re Wilson, 81 N.J. 451 (1979), the OAE recommended disbarment. The Wilson rule set the standard that an attorney’s knowing misappropriation will almost “invariably” result in disbarment. The standard was strengthened and expanded in later cases to include misappropriation of escrow and law firm funds. In the report of the special master, the reviewing attorney expressed “skepticism over the history of the actual enforcement of Wilson in random audit cases.” The special master expressed concerns over the application of the evidentiary standard in Wilson, as well as “the over reliance on admissions in deciding to enforce Wilson.” He continued, “Nonetheless, I am constrained by the overwhelming case law following Wilson which has imposed disbarment in every knowing misappropriation case.”
The NJSBA, while not taking a position on the specific facts or findings in the case, argued that the Wilson rule is aggressive and unclear, leading to the result of disbarment in matters where less severe discipline may be warranted.
“The NJSBA agrees that public confidence is maintained with a bright-line rule requiring disbarment where there is clear and convincing evidence of an intent to steal a client’s money or to defraud a client, the NSJBA said in its brief. “The NJSBA asserts this is what has historically been understood as ‘knowing misappropriation’ under Wilson. However, the NJSBA believes that, absent clear and convincing evidence of theft or fraud, notions of justice and fairness based on the merits of the particular facts presented require consideration of alternative appropriate sanctions, if any, short of disbarment.”
The NJSBA urged the Court to clarify what constitutes knowing misappropriation in circumstances where trust accounting errors or insufficiencies are alleged in connection with a recommendation for disbarment under the Wilson rule. It also sought a clear delineation on the “aggressive application of the Wilson rule beyond the situations of thievery and fraud to which it has justifiably been applied and limited.” It further sought confirmation that the burden to demonstrate ethical violations remains on the OAE, and that only medical defenses are subject to the clear and convincing evidence standard.
The order to show cause hearing is scheduled for Sept. 27.