The New Jersey State Bar Association is asking the Appellate Division to reject a statutory provision in the New Jersey Debt Adjustment and Credit Counseling Act (NJDACCA) as unconstitutional because it infringes upon the Supreme Court’s exclusive authority to regulate the practice of law. The Association filed its amicus brief in Anchor Law Firm, PLLC, et al. v. The State of New Jersey, et al., challenging the applicability of a statute to attorneys who engage in debt adjustment services on behalf of their clients. NJSBA Treasurer Diana C. Manning and Kyle A. Valente wrote the brief.
“The NJDACCA impermissibly regulates the conduct of attorneys in furtherance of the legal representation of their clients,” the NJSBA said in its brief. “A New Jersey licensed attorney who performs debt adjustment services within the context of an attorney-client relationship is engaged in the practice of law. Attorneys routinely provide debt adjustment services to clients as part of their legal representation.”
A confidential grievance sparked an Office of Attorney Ethics investigation against a lawyer from Anchor Law, a firm that focuses on bankruptcy and debtor/creditor law. One of the alleged ethics violations claimed the plaintiff was acting as a debt adjuster in violation of N.J.S.A. 17:21-19(f), which exempts the prohibition of debt adjustment for profit attorneys who are “not principally engaged as a debt adjuster.”
Anchor argues that this statute violates the separation of powers clause by attempting to regulate attorneys, which can only constitutionally be done by the Supreme Court. It further argues that the statute is vague, overbroad and infringes on a constitutionally protected activity.
The NJSBA pointed out that an attorney who engages in debt adjustment in the context of an attorney-client relationship is actually engaged in the actual practice of law and subject to the sole province of the Supreme Court. Moreover, the NJSBA said, the phrase “principally engaged” is vague, “rendering it unclear to attorneys when their conduct falls within the ambit of the statute.”
There is not yet an oral argument date scheduled for this matter. A full copy of the brief can be found here.
NJSBA Questions Proposal to Waive Family Part Jurisdiction in Juvenile Delinquency Cases
The NJSBA submitted comments outlining concerns about proposed amendments to Rule 5:22-2(a) regarding motions to waive family part jurisdiction in juvenile delinquency cases. The comments are in response to a Notice to the Bar soliciting comments on a rule proposal seeking to place limits on the ability of a prosecutor to seek extensions of time to file a motion for waiver of these matters from the family part to the criminal division. The proposal is meant to ensure youths charged with crimes are not unnecessarily detained for prolonged time periods. The NJSBA offered a different perspective in its comments.
“Our members advise that prosecutors and defense counsel often cooperate with each other in these cases to ensure every benefit is afforded to juveniles charged with a serious offense consistent with the rehabilitation goals of the juvenile defense system,” the NJSBA said in its letter to the Administrative Office of the Courts. Citing the practical application of these motions, the Association pointed out that many times prosecutors are assenting to extensions at the behest of defense counsel seeking additional time to obtain relevant reports such as mental health evaluations, school information, test results or other forensic evidence “to aid in objectively evaluating the case.”
Both prosecutors and defense attorneys agreed that time limitations will likely force a prosecutor’s hand to file a waiver before gathering all relevant information on the case, potentially exposing more juveniles than need be to the criminal part, the NJSBA stated.
The NJSBA pointed out that currently, judges have discretion to manage juvenile delinquency cases on an individual basis, and to work with counsel involved to ensure that the rights of youths charged with crimes are protected. The Association urges the rule proposal not be adopted and that the Judiciary “continue to allow all involved to work to pursue the rehabilitative goals of the juvenile justice system whenever possible.”
For a full copy of the letter, please click here.
Attorney General Posts Records to Assist in DWI Sentencing
The Attorney General’s office announced that it has provided access to records to help determine whether post-conviction relief may be warranted in matters where a person was convicted of an offense of driving while intoxicated based upon potentially tainted Alcotest results.
The records were produced pursuant to an order issued in State v. Zingis, which challenged whether municipal prosecutors had an obligation under State v. Cassidy to provide proof to a sentencing court and defense that a prior DWI conviction was not the result of an Alcotest reading resulting from an erroneously calibrated machine. The NJSBA participated as amicus in both Zingis and Cassidy. Lead counsel in the matter, Jeff E. Gold, was instrumental in helping to prepare the documents containing the records that are now available on the Attorney General website.
In Zingis, the NJSBA argued that as a result of the Cassidy decision confirming that certain Alcotest readings obtained from machines calibrated by former New Jersey State Police Sgt. Marc Dennis were not reliable, the Supreme Court should require prosecutors to provide discovery about prior potentially affected DWIs they intend to use in sentencing or as a predicate offense. Those faulty Alcotest readings were a result of a challenge in Cassidy where it was discovered that Dennis had improperly calibrated a number of Alcotest machines, potentially tainting over 20,000 results between 2008 to 2016.
The two documents posted by the Attorney General include S152, a spreadsheet of every sample made on an affected Alcotest machine from Nov. 5, 2008, and April 9, 2019; and a database of PDF files showing the calibration records of the machines, otherwise known as the Dennis Calibration Repository.
The press release and documents may be accessed here.