The New Jersey State Bar Association recently supported the findings in a report from the state Supreme Court Working Group on Attorney Pro Bono Assignments Report as being in line with its own recommendations to address Madden assignments. The Association submitted comments further asking the Court to abolish Madden in favor of the implementation of publicly funded compensated counsel to provide effective representation for indigent litigants facing consequences of magnitude.
“It is unfair to litigants who are unable to afford their own counsel but are constitutionally entitled to effective representation, and places attorneys in the untenable position of potentially violating their professional obligation to provide competent counsel by forcing them to provide representation in matters outside the scope of their expertise,” said NJSBA President Timothy F. McGoughran in a letter to the Court. “Indeed 17 county and affinity bar associations have adopted resolutions calling for the end of the Madden assignment system, as it presents an obstacle to equality, a barrier to justice and a disservice to all.”
Among the recommendations of the working group are:
• Legislation to expand the charge of the state Office of the Public Defender (OPD) to handle domestic violence contempt hearings, parole revocation hearings, guardianship cases for people receiving New Jersey Division of Developmental Disability services, state Division of Child Protection and Permanency administrative matters, and civil commitments. The NJSBA supports this recommendation because the OPD is best positioned with appropriate knowledge and expertise to provide representation in these areas.
• Funding for the provision of effective representation to indigent people in all cases where there is a right to counsel. Both the OPD and Legal Services of New Jersey should receive funding. The NJSBA urged all necessary actions be taken to ensure OPD has the staff and resources it needs to operate under an expanded mandate and supports funding for legal service organizations to handle specialty cases.
• Calling on county governments to fund public defenders in areas the Legislature has not funded, especially for domestic violence contempt hearings. The NJSBA supports an overall recommendation to publicly fund effective counsel for these matters, noting that a statewide funding mechanism will ensure uniformity and consistency.
• Continuing the assignment of parole revocation hearings under Madden to allow assignments based on the county of commitment rather than the county of detention. The NJSBA has long supported this to alleviate the disparate impact on south Jersey attorneys where there are fewer of them representing litigants where the prisons are located.
• Tracking methods for case types that are presently handled under Madden for proper statistical analysis. The NJSBA supports this recommendation in furtherance of making the right to counsel fully accessible, transparent and consistent.
• Narrowing the exemption categories for Madden assignments. The NJSBA recommends this as a good step on an interim basis and until representation is fully funded.
• Creating an attorney registration system to track an attorney’s practice area, preference or expertise. The NJSBA supports this as an interim solution and supports the provision of a hyperlink on the registration page for attorneys to more easily report their pro bono work and be informed of the existence of pro bono opportunities.
The Association did not support the Working Group’s recommendation to create a pool of volunteers to answer questions from Madden attorneys. The NJSBA cautioned that this merely shifted the state’s burden to provide effective counsel to a smaller group of volunteer attorneys.
Overall, the Association recommended that the Supreme Court adopt its own recommendations made by the NJSBA’s Right to Counsel Committee in its report, Achieving Effective Representation in Right to Counsel Matters. Both the report and the letter commenting on the Working Group’s report may be found at njsba.com.
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.