Emphasizing the fundamental importance of the need for indigent litigants to have effective counsel in cases of magnitude, the New Jersey State Bar Association (NJSBA) recently took a pair of actions aiming to end the Madden system of pro bono assignments.
The Association adopted a resolution urging the Judiciary to end the assignments and asked the Legislature to provide necessary funding to provide effective representation in all cases in which there is a right to counsel. Referring to the Madden system of assignments as an obstacle to equality, the NJSBA, in its resolution, calls upon the Judiciary to end Madden assignments as a necessary step to address this barrier to access and justice. It also joined a pending case as an amicus party where an attorney was assigned a case in Camden County and has asked to be relieved based on inexperience.
Madden assignments are a result of the Supreme Court’s decision in Madden v. Twp. of Delran, 126 N.J. 591 (1992), which held that indigent defendants have a constitutional right to effective counsel when there is a consequence of magnitude. The NJSBA has consistently voiced concerns about the Madden system, has been a steadfast advocate in favor of publicly funded representation, and has actively encouraged voluntary pro bono service among its members as an alternative.
The Association in 2021 adopted the report and recommendations of its Right to Counsel Committee, Achieving Effective Representation In Right to Counsel Matters. The report outlined 13 recommendations to consider in addressing the issue of effective counsel in matters where there is a right to counsel. Chief among them was to end the Madden system.
At its January meeting, the NJSBA Board voted in support of a resolution calling upon the Supreme Court to abolish the Madden system of random assignments. The resolution also calls upon the Legislature to publicly fund a compensated counsel system to provide effective counsel to indigent litigants in right to counsel matters
“The Supreme Court in Madden noted its limited power in ensuring equal access to justice and the judicial system in lieu of a legislative fix…although the Madden system of pro bono assignments was meant to be a stop-gap measure until the Legislature acted, Madden assignments continue to be made more than 30 years after the original decision,” the resolution states.
In addition, the Right to Counsel Committee report noted: “Despite its serious limitations, the Madden system has been the default mechanism for random assignments regardless of counsel’s expertise in many types of right to counsel matters that has created a separate and critical issue in the consideration of due process.”
In a related effort, the NJSBA has filed a motion seeking to appear as amicus curiae in the matter of State v. Burgos, in which counsel requested to be relieved from a Madden assignment based on his inexperience in the area of the law for which he was assigned.
In this Camden County matter, attorney Michael Haya was denied relief from representation after advising the court that he had not practiced law since 2000 and had not practiced in the area of the law at all for which he was assigned. He has since filed an order to show cause seeking relief from the Madden assignment.
The NJSBA is also arguing that Haya should be relieved as counsel, that the defendant has the constitutional right to effective counsel, and that Madden assignments created a two-tiered justice system
“As a result of Madden, an attorney, who while having passed the bar, has worked as a computer programmer and a non-attorney consultant for almost 23 years has been assigned to defend a contempt of domestic violence charge. He is not simply ‘rusty’ in the practice of law, he has not seen a courtroom as an attorney for over 20 years. This attorney should be excused from service,” the Association argued in its brief.
“More importantly, the indigent defendant in this case and all indigent defendants subject to a Madden-assigned attorney, deserve more than a ‘physical presence’ in their court proceedings. This is not what the constitution envisioned—nor could it be what the Court envisioned. The effective right to counsel enshrined in the federal and state constitutions is purposeless without an effective way to ensure competent, knowledgeable counsel.”
The matter has been scheduled for Feb. 8 before the Assignment Judge Deborah Silverman Katz.
Below is the full text of the NJSBA resolution:
A RESOLUTION of the New Jersey State Bar Association calling upon the New Jersey Supreme Court to abolish the Madden assignment system, which has proven to be an obstacle to equality and a disservice to all, and calling upon the Legislature to publicly fund the provision of effective representation in all cases in which there is a right to counsel, as a necessary step to be taken to address this barrier and foster access to justice.
WHEREAS, the Supreme Court of New Jersey held in Madden v. Twp of Delran, 126 N.J. 591 (1992) that indigent defendants are constitutionally entitled to counsel when facing a consequence of magnitude; and
WHEREAS, the Supreme Court in Madden noted its limited power in ensuring equal access to justice and the judicial system in lieu of a legislative fix and developed a random assignment system to ensure indigent defendants had attorney representation when facing a consequence of magnitude; and
WHEREAS, the NJSBA has consistently voiced concerns about the Madden system of mandatory pro bono assignments, has repeatedly advocated in favor of publicly funded representation, and has actively encouraged voluntary pro bono service among its members as an alternative; and
WHEREAS, although the Madden system of pro bono assignments was meant to be a stop-gap measure until the Legislature acted, Madden assignments continue to be made more than 30 years after the original decision; and
WHEREAS, the NJSBA convened the Right to Counsel Committee to examine the history of the right to counsel in New Jersey, how that right was established, how the right to counsel was fulfilled in each area of the law, and the effectiveness of assigned counsel under the system developed following the Supreme Court’s decision in Madden; and
WHEREAS, the Right to Counsel Committee issued a report, Achieving Effective Representation In Right to Counsel Matters, outlining thirteen separate recommendations to consider in addressing the issue of effective counsel in matters where there is a right to counsel in New Jersey; and
WHEREAS, chief among the recommendations was to abolish the Madden system of assignments to uncompensated counsel in favor of a publicly funded system for the provision of effective representation; and
WHEREAS, the NJSBA Board of Trustees adopted this report on April 16, 2021; and
WHEREAS, the recommendations advocate using a multi-pronged approach to funding the right to counsel including additional funding to the Office of the Public Defender to handle cases most aligned with their current work (parole revocation, contempt of domestic violence hearings, civil commitments, and other such cases); authorizing municipal public defenders to handle municipal appeals; funding non-profit providers with expertise in particular types of cases (private adoptions, guardianship, paternity); and increasing pool attorney rates, among other recommendations;
NOW, THEREFORE IT IS RESOLVED, that New Jersey State Bar Association Board of Trustees hereby calls upon the Supreme Court of New Jersey to abolish the Madden system of assignments; and
LET IT BE FURTHER RESOLVED, the New Jersey State Bar Association Board of Trustees hereby calls upon the Legislature to publicly fund the provision of effective legal representation, including the costs associated with implementation and administration of the compensated counsel system, in all cases in which there is a right to counsel consistent with the decision in Madden.