The New Jersey State Bar Association submitted comments last week in response to the New Jersey Supreme Court’s proposed rule amendments regarding Family Division staff. The proposed rule amendments are designed to standardize job specifications for current Administrative Specialist 4 positions, which includes referees, child support hearing officers and domestic violence hearing officers, and to conform to legislation eliminating the use for juvenile referees in cases involving an informal or “counsel non-mandatory” hearing.
The proposed rules make the following amendment:
• Rule 1:40-12, regarding mediators and arbitrators in court-annexed programs, provides that the Administrative Director shall prescribe court staff mediator qualifications and training requirements;
• Rule 5:25-2, -3 and -4, regarding referees, child support hearing officers and domestic violence hearing officers, would be deleted and replaced with a new Rule 5:25-5 to authorize the use of hearing officers and mediators to serve in docket types as provided in the Judiciary policies and would eliminate the juvenile referee program.
The NJSBA noted the qualifications and training requirements for mediators under Rule 1:40-12 were carefully and thoughtfully established to ensure the aims of court-annexed mediation sessions are met. It took issue with the exemption for court staff mediators and judicial law clerks serving in the Family Division, urging the Court to ensure that they meet the same standards to avoid undermining “the laudable aims of the requirements.”
The Association provided additional comment regarding the distinction between consent conferences, which are not confidential, and mediation conferences, which are, to ensure that all participants are aware of this distinction at the beginning of either.
A full copy of the proposed amendments may be found here. A copy of the NJSBA’s comments may be found here.
NJSBA’s Comments to Professional Responsibility Report Urges Reconsideration of Negative Online Review Restrictions
The NJSBA submitted comments in response to the New Jersey Supreme Court’s report by the Professional Responsibility Rules Committee (PRRC). The PRRC recommended amendments to the Rules of Professional Conduct regarding discriminatory conduct and basis and rate of fee sections; a pilot program permitting the New Jersey Attorney General to join every other state in the country in having the ability to waive conflicts of interests by public entities; and declining to recommend an amendment to permit attorneys to make a limited response to negative online reviews. The NJSBA urged reconsideration of the last recommendation in light of an earlier recommendation to modify the Court’s approach coming from the Advisory Committee on Professional Ethics Opinion 738.
“The NJSBA carefully considered the PRRC’s weighing a lawyer’s obligation to maintain confidentiality against the significant issues created by false information published by clients online,” said NJSBA President William H. Mergner Jr. in a letter to the Court. “The PRRC’s suggested response to egregious allegations made by former clients does not suffice to defend a lawyer’s hard-earned good reputation. We strongly believe that, if a client takes the first step of publicly disclosing information, that opens the door for a lawyer to respond in a measured way to appropriately address any false statements in that disclosure.”
In the report, the PRRC acknowledged the significant problems arising from “false information in online reviews,” but fell short of recommending an amendment that would carve out an exception to permit lawyers to disclose otherwise confidential information about the client online.
“Rather, the Committee finds that lawyers in this situation should respond with the suggested language set forth in [ACPE Opinion 738]: ‘A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say I do not believe the post presents a fair and accurate picture of events,’” said the PRRC in its report.
The NJSBA has long advocated for an amendment that would permit the lawyer to a response that would include this language as well as permitting additional language in limited situations:
• Only where an objectively factual statement directly impugns the lawyer’s ability to represent clients, including honesty, competency, integrity, knowledge of the law and similar legal attributes;
• Before the lawyer is permitted to use confidential client information, provide a 30-day written warning to the former client by certified mail, email with delivery receipt or guaranteed overnight delivery capable of being tracked, identifying the objectively inaccurate information, explaining why it is inaccurate and warning that if not removed, the client may be subject to legal action and/or release of confidential information;
• Any disclosure of confidential information must be narrowly tailored and limited to what is reasonably necessary to rebut the objectively inaccurate claim;
• Lawyers can indicate their disagreement with the post only if it contains objectively inaccurate facts.
The report also addressed amendments to RPC 8.4(g), recommending against adoption of the American Bar Association Model rule, which the NJSBA previously advocated. The NJSBA supports clarifications suggested by the PRRC, agreeing that New Jersey’s rules already adequately prohibit discriminatory and harassing conduct.
The PRRC also recommended an amendment to RPC 1.5(B) regarding basis and rate of fee. The proposed amendment would require that any changes regarding basis and rate of fee in a new matter be communicated to the client in writing. The NJSBA supports this as a best practice to keep the clients informed and protect attorneys.
RPC 1.7 is also recommended to be amended to begin a pilot program in which the New Jersey Attorney General can waive conflicts of interests on behalf of public entities. The NJSBA points out that New Jersey is the only state where such conflicts cannot be waived and this is a practical recommendation because private firms are often conflicted out of representation of public entities, leaving the state with difficulty finding effective representation.
A full copy of the report may be found here. A copy of the NJSBA’s comments may be found here.