The New Jersey State Bar Association (NJSBA) weighed in on the state Supreme Court’s proposed amendment to Rule 1:21-3, which would permit attorneys not licensed in New Jersey to provide pro bono legal services to qualifying individuals and businesses under the supervision of a New Jersey-licensed attorney. The NJSBA urged the Judiciary to take a closer look at the proposal to address “several important aspects” regarding the use of privately supervised pro bono representation by out-of-state attorneys.
“We share the Court’s goal of expanding access to pro bono legal representation for litigants who cannot afford private counsel; however, we have significant questions about how this proposal will be structured and whether it will provide the anticipated benefit to litigants,” NJSBA President Domenick Carmagnola wrote in a letter to the Court.
The rule amendment would permit pro bono legal services under the supervision of a New Jersey-licensed attorney, rather than under the auspices of a clinical or pro bono program. This raises several questions regarding the scope and mechanics of supervision, Madden credit availability for the supervising attorney, pro hac admission and attorney registration, the Association said.
With regard to eligibility for such services, the NJSBA pointed out that the term “qualifying individuals” is not defined in the proposed amendments. Unlike the current screening policies and procedures contained in R. 1:21-11(a)(1), the proposed rule does not incorporate this definition and therefore may need some clarification.
“The NJSBA in no way means to suggest that the definition should be rigidly interpreted, as certified organizations use a range of income thresholds depending on the target client population, the kind of pro bono service involved, and the funding streams that underwrite the work,” Carmagnola said. “However, certified organizations vet prospective clients for qualification for pro bono service under established and relevant standards to ensure compliance with the Court rule.”
Further consideration should be paid to what type of training, sample materials and mentorship is available to these volunteers to ensure appropriate representation; whether the rule incorporates out-of-state legal services or public interest organizations; and the reporting requirements necessary under this structure. Finally, the NJSBA pointed out that legal services and pro bono organizations routinely provide professional liability coverage to their volunteers, which does appear to authorize or extend to New Jersey-licensed lawyers who individually supervise out-of-state lawyers.
“The NJSBA wholeheartedly supports the Court’s continuing commitment to expanding access to pro bono legal representation for litigants who cannot afford private counsel; however, we believe the proposed amendments presented here would benefit from additional review and comment to address the issues raised above,” Carmagnola said.
OAL hearings continue remotely for foreseeable future
In response to the NJSBA’s request for the Office of Administrative Law (OAL) to establish a policy to honor a preference for virtual hearings where the parties have no objection, the OAL reiterates its plans to continue remotely with no anticipated in-person date announced.
Carmagnola urged Acting OAL Director and Chief Administrative Law Judge Ellen Bass to continue remote hearings in light of the omicron surge. Bass clarified the status of in-person proceedings has not, and will not happen without a return that is “slow and measured” and with the goal of putting “the health and safety of the OAL community at the forefront.”
Bass pointed to an ad hoc Zoom Committee comprised of OAL judges, who are tasked with advising her on how to best continue to use remote technology to serve litigants once the pandemic ends. “I believe that Zoom will continue to have utility for certain types of hearings and certain types of testimony, and that there are lessons to be learned from our pandemic experience.”
The NJSBA continues to monitor the courts and to provide input on the most efficient use of technology and a safe return to in-person proceedings when necessary to provide effective representation and access to justice.
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.