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.
NJSBA Calls for Amendments to Court Rules on Withdrawal From Representation, Fees
The New Jersey State Bar Association urged the state Supreme Court to consider taking action to allow attorneys to more readily withdraw from representation when there is consent of the client and ensure payment of legal fees for services provided. The recommendations come from the Putting Lawyers First Task Force – convened by NJSBA Past President Jeralyn L. Lawrence – focusing on ways to improve the legal profession and attorney well-being.
“Members of the NJSBA’s Putting Lawyers First Task Force found that attorneys are often put in a difficult position where they must continue their representation after a client has stopped paying, even when the client agrees to end the representation,” said NJSBA President Timothy F. McGoughran.
McGoughran pointed out that the current practice requires lawyers to file a motion to be relieved as counsel, even if they have the consent of the client. The resulting additional and unnecessary costs for the client and wasted judicial resources would be unnecessary if amendments were made to permit withdrawal in these cases.
In a letter to the Court, the NJSBA recommended that the Court Rules be amended to eliminate the need for a motion to withdraw in most instances if a client consents to the withdrawal, but when there is no consent, to continue to require court consent. The recommendation notes the rules should be amended to require a motion for withdrawal to be heard by the Presiding Judge (unless the Presiding Judge is assigned to the matter) and in camera review of any pertinent information that needs to be shared in support of a non-consensual removal. An amendment to the Rules of Professional Conduct 1.6 should also clarify that the denial of withdrawal from representation as of right where good cause is present is only permitted when extraordinary circumstances exist to necessitate continued representation.
Hand in hand with this recommendation, the Association urged the Court to consider a mechanism to permit attorneys to raise compensation issues in a reasonable manner that limits any impact on the advancement of the case. Recommendations include:
- Revising the case management order to include a section to address counsel fees and funding the attorney’s fees;
- requiring a judgment search for attorney’s fees owed before client funds being held in escrow can be released;
- reviewing the fee arbitration process with an aim of making it more efficient;
- requiring judges to make a finding incases that do not settle as to how the attorneys are being paid before the case proceeds to trial; and
- permitting attorneys who are not being paid to file a Notice of Lien on the Docket Sheet setting forth the amount owed.
“We view the proposals as a matter of fairness to all involved, and hope that the Judiciary will examine them through that lens,” concluded McGoughran. The NJSBA continues to work with the Judiciary to advance recommendations contained within the Putting Lawyers First report.
NJSBA Argues in Favor of Special Master Authority to Stay Implementation of New Alcotest Machine
The NJSBA appeared as amicus curiae in State v. Cunningham, which has been assigned a Special Master to develop a record and make findings regarding the scientific reliability of the Alcotest 9510. The Association responded to a request by the defendant to stay further implementation of the new Alcotest machine pending a reliability determination, urging that the Special Master hold a hearing and develop a factual record on the issue.
The defendant is seeking to stay implementation of the Alcotest 9510 machine, which is being used by police departments in Monmouth County. The Supreme Court has stayed any prosecutions seeking to use these results as evidence pending a reliability determination, which has been assigned to a Special Master. In this latest submission, the Special Master has asked counsel to provide briefing as to whether imposing the stay is within the scope of his assignment as Special Master.
The NJSBA did not opine specifically as to the scope of the Special Master’s authority, but pointed out that he has, at minimum, the authority to hold a hearing to develop a factual record on which the ultimate decision can be made – and urged the Special Master to do so. In support of its argument, the Association pointed out the delays resulting in the current stay, which are similar to those that occurred in State v. Chun, from which the reliability of the Alcotest 7110 machine was analyzed.
In urging the Special Master to hold a hearing and develop a record on the scientific reliability of the Alcotest 9510, the NJSBA pointed out that this would provide the record needed to rule on the motion by establishing how many Alcotest 9510 instruments are in place, where they are installed in Monmouth County, what plans the state has for installing the machine beyond Monmouth County, how many Alcotest 7110 instruments remain in service, what need the state may have to replace Alcotest 7110 instruments, and whether there is an emergent need to do so.