In an eight-page decision, Assignment Judge Deborah Silverman Katz denied an attorney’s application to be excused from his assignment to represent a defendant in a contempt of domestic violence order matter. The New Jersey State Bar Association (NJSBA) participated as amicus curiae in support of Michael Haya’s application and urged the court to assign the matter to publicly-funded counsel or to adopt one of the NJSBA’s Right to Counsel Committee’s recommendations to address the right to counsel in New Jersey. The NJSBA’s request was also denied, but Haya was eventually relieved upon the request of the defendant in the underlying matter, who stated his concern that he was being assigned ineffective counsel.
“Granting the relief sought by the NJSBA would not just affect Mr. Haya. It would ‘reach far beyond’ and delve into the state’s system of Madden appointments,” said Judge Silverman Katz. “[I]t would be inappropriate for this Court to repeal and replace the state’s long-standing system of pro bono assignment for indigent defendants.” She relied upon the state constitution and case law that gives exclusive rule-making power to the Supreme Court, not the lower courts, to make such decisions.
Haya was assigned the matter off of the Madden list pursuant to the court’s random system of assignments resulting from the matter of Madden v. Delran, 126 N.J. 591 (1992).
Haya argued that he had not practiced since 2000 and had no experience in this area of law; rather he consults with retirement plans and third-party administration matters. Judge Silverman Katz rejected that argument.
“He has demonstrated the ability to become a member of the bar by graduating law school and passing the bar exam,” said Judge Silverman Katz. “He has certified that he renders advice as it generally relates to retirement plans and associated matters. He is certainly capable of reading and understanding the primers provided by the court in undertaking representation of [the defendant].”
The NJSBA has called upon the Supreme Court to abolish Madden, declaring it an obstacle to equality. It passed a resolution, which was presented to the governor and to Chief Justice Stuart Rabner. Instead, the NJSBA urged the Court to call on the Legislature to create a publicly-funded resource for right to counsel matters. In addition, the NJSBA called upon the Supreme Court to consider the recommendations outlined in its Right to Counsel Committee report, Achieving Effective Representation in Right to Counsel Matters. That report can be found at njsba.com.
“This is not an attorney issue,” said NJSBA President Jeralyn L. Lawrence. “This is about the right of indigent defendants to have effective counsel.”
The NJSBA is reviewing next steps to pursue, including joining in an appeal of the decision.
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.