The New Jersey State Bar Association has had a productive year protecting the rights, interests and livelihood of attorneys. The advocacy work of countless NJSBA members and its leadership moved the needle on several significant issues to the practice of law, benefiting New Jersey attorneys and the state’s most vulnerable residents. From working to preserve referral fee payments to out-of-state attorneys to championing improvements to the state’s ineffective system of assigned counsel, the results achieved through NJSBA’s advocacy aim to have a lasting positive impact.
“Advocacy is a vital function of the NJSBA. When the NJSBA coalesces around a cause, our collective voice can profoundly shape the practice of law for the better. Thanks to the volunteer efforts of many NJSBA members, the Association is well positioned to achieve fair results on behalf of New Jersey attorneys, clients and the public.” NJSBA President William H. Mergner Jr. said.
Here are the highlights from the Association’s advocacy work in recent months. Visit njsba.com to learn more about the NJSBA’s amicus activities and how to get involved.
Opposing Opinion 745 to restore out-of-state referral fees
The NJSBA acted swiftly this year to challenge an opinion by the Advisory Committee on Professional Ethics (ACPE) that banned the payment of referral fees from certified attorneys to out-of-state lawyers. Opinion 745 upended decades of interpretation on the rule and cast a wave of uncertainty over preexisting referral arrangements New Jersey attorneys share with their out-of-state counterparts. In its petition to the state Supreme Court, the NJSBA argued that the opinion placed attorneys in an unwinnable scenario – either decline to pay a promised referral fee and risk a lawsuit alleging breach of contract, or honor a fee arrangement and face a potential ethics violation.
Clients and the public faced the worst consequences, the NJSBA argued. Without the incentive of referral fees, attorneys across state lines would be less inclined to send clients to knowledgeable New Jersey attorneys, even when the case requires procedural and substantive knowledge of New Jersey law. Out-of-state attorneys would be financially incentivized to work on matters they would have otherwise referred to a New Jersey attorney certified by the Court as having heightened expertise and experience. In turn, there is an increased risk of letting time-sensitive filings lapse as attorneys try to familiarize themselves with New Jersey requirements, the NJSBA stated in its briefs.
In response to petitions by the NJSBA and other legal organizations, the state Supreme Court in July agreed to stay the enforcement of the opinion pending review. The NJSBA remains well positioned to advocate for a reversal of the opinion. The Court has yet to set a date for argument.
Reforming the Madden system of assigned counsel
The Association has been a leading voice in the call to abolish the state’s Madden system of assigned counsel in favor of a publicly funded system. The current system, established 30 years ago under Madden v. Twp. of Delran, does not meet the constitutional mandate of effective assistance of counsel, the NJSBA has argued. Assigning counsel at random to a case, regardless of the attorney’s expertise or practice area deprives litigants of adequate representation. This creates a two-tiered justice system, where litigants unable to afford counsel do not receive effective representation and equal access to justice.
The Supreme Court’s Working Group on Attorney Pro Bono Assignments agreed with the Association’s position that the Madden system is ineffective in matching attorneys with economically disadvantaged clients. To direct some Madden clients to more capable counsel, the NJSBA testified in support of a bill that would allow the Office of the Public Defender to provide legal representation for criminal contempt violations in domestic violence matters. The bill would ensure that litigants who cannot afford counsel receive equal access to justice and support to repeat offenses, the NJSBA testified. While the bill is awaiting passage in the state Legislature, the Association stands ready to assist in a potential transition to a system run by the Office of the Public Defender because these cases are most aligned with their current work.
Ending the practice of attorneys purchasing other attorneys’ names for keyword searches
The NJSBA urged the state Supreme Court to declare unethical the practice of attorneys purchasing the names of other attorneys for use as keyword searches to redirect web traffic to their own sites. Read more about the NJSBA’s advocacy on this issue here.