Director of Communications
Letter to the NJ Law Journal Editor on the $75 Fee Case
A recent Law Journal editorial questions the wisdom of the New Jersey State Bar Association continuing its legal challenge to the $75 annual assessment legislatively imposed on attorneys to fund the malpractice insurance costs of certain medical specialists. The NJSBA recently lost in the Appellate Division and the Board of Trustees has authorized filing for Certification with the Supreme Court.
Suit was instituted because the NJSBA strongly felt that the actions of the Legislature were neither factually supported nor legally justified, a position the State Bar continues to maintain. The briefs at both the trial and appellate levels were prepared by attorneys on the NJSBA staff, in consultation with counsel in this case (former NJSBA President Edwin McCreedy) and the NJSBA Executive Committee. Moreover, at the initial stages of litigation, two distinguished retired judges, one a former Assignment Judge and the other a former Federal judge, reviewed the brief and assisted in refining the legal arguments to be made. Because the foundational issue in this case questions legislative authority, we never believed that the case would be resolved at any level other than at the Supreme Court.
As for the contention that the NJSBA might be better engaged in a "serious education effort of our elected representatives," that, too, is happening. Despite the fact that attorneys now have to pay this assessment, NJSBA lobbyists continue to work with both legislative houses to identify and address the real reasons for increases in medical malpractice insurance premiums. Whether the Legislature will pay closer attention if the Court adopts our arguments and voids the legislation in question remains to be seen.
The editorial notes that "we attorneys may resent being a punching bag for all the perceived ills of our system of insurance...." We do resent it, and the State Bar is taking what it considers to be the appropriate and necessary steps to do something about being that "punching bag." No one else, either organizationally or individually, is doing so. I would have hoped that rather than questioning our actions, the Law Journal, whose readership is drawn from those required to pay the assessment, would have applauded our continuing efforts to challenge this law.
Very truly yours,
Wayne J. Positan