“Judicial vacancies are an endemic issue always simmering in New Jersey and throughout its legal system,” Carmagnola wrote. “Yet too often in recent history—such as in this moment—the number of vacancies has been allowed to grow into a full-boil crisis.”
New Jersey Supreme Court Justice Jaynee LaVecchia left a vacancy in the Court late last year, which remains vacant after a failed attempt to fill the seat with Murphy’s nomination of Rachel Wainer Apter. Wainer Apter is the director of the New Jersey Division of Civil Rights and former law clerk to the late U.S. Supreme Court Justice Ruth Bader Ginsburg. Wainer Apter’s nomination stalled when Sen. Holly Schepisi exercised senatorial courtesy voicing concerns over Wainer Apter’s impartiality upsetting an ideological balance on the court. As Fernandez-Vina reaches the mandatory retirement age of 70, the impending vacancy has led to further talks of a compromise between Schepisi and Murphy over the next nominees.
This stalemate has significant consequences as several candidates for judges on the Superior Court level have also stalled, the NJSBA said. “While some view discussions about judicial vacancies to be an esoteric issue, it has very real consequences on the members of the public and business owners who turn to the courts to resolve disputes,” Carmagnola wrote. “With historic number of vacancies that have been pending for the past several years, there are too few judges serving the bench, resulting in too many people waiting for justice. The need to take action is real and must occur now.”
Carmagnola committed the NJSBA to ensuring that qualified candidates are reviewed in a timely fashion and urged the governor to nominate qualified candidates “as soon as possible and work diligently with legislators to ensure the successful confirmation of each.”
This is the latest in a series of letters by the NJSBA to legislators and the governor urging them to fill vacancies in the face of the historic number of them. In October, vacancies climbed over 60. NJSBA has met with leaders to discuss how to address this “with all due speed and efficiency.”
NJSBA urges further review on Supreme Court committee’s recommendations on retainer fee agreement
The NJSBA submitted comments in response to the state Supreme Court’s recommendations made by the Court’s Advisory Committee on Professional Ethics (ACPE) urging further review and debate by other relevant committees in its Jan. 19 letter to the Court. The NJSBA’s comments were limited to retainer fee agreements in statutorily based discrimination cases.
The NJSBA’s comments include:
- In response to ACPE’s 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,” the NJSBA said 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 to 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.
Additional recommendations by ACPE were reviewed by the NJSBA, which is set forth more fully at njsba.com. The NJSBA urged the Court to circulate these comments to the relevant Court Rules Committees and then present rule changes in the ordinary cycle of review for a fuller evaluation of the impact of these proposals on the everyday practice of law.
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.