On May 15, S-1815 (Lesniak) was introduced in the Senate and on May 22, the Assembly counterpart, A-2858 (Cryan) was introduced, to reduce the statute of limitations for legal malpractice from six years to two years and reverse the New Jersey Supreme Court decision in Saffer v. Willoughby, 143 N.J. 256 (1996), which requires attorneys to pay counsel fees to a prevailing party in legal malpractice cases.

On October 1, a comprehensive legislative package aimed at reforming the State's $1.8 billion workers' compensation insurance system was signed into law by Governor Jon S. Corzine. These bills were part of a six-bill package that arose as a result of hearings held in June by the Senate and Assembly Labor Committees in response to a series of articles in the Star Ledger about the New Jersey workers’ compensation system. One of the bills, S-1918 was conditionally vetoed.

SUMMARY OF WORKERS’ COMPENSATION BILL PACKAGE
S-1913 (Sarlo) Increases the power of judges of compensation to enforce workers' compensation law. On Oct. 1, the bill was signed by the Governor.

S-1914 (Sarlo) Strengthens enforcement against employers for failure to provide workers' compensation coverage. On Oct. 1, the bill was signed by the Governor.

S-1915 (Sarlo) Concerns workers' compensation coverage and certain licenses, certificates, permits and registrations. On Oct. 1, the bill was signed by the Governor.

S-1916 (Sarlo) Concerns emergent medical care under workers' compensation. On Oct. 1, the bill was signed by the Governor.

S-1917 (Sarlo) Expands the membership of the Compensation Rating and Inspection Bureau. On Oct. 1, the bill was signed by the Governor.

S-1918 (Sarlo) Makes failure to provide workers' compensation coverage a violation of the New Jersey Insurance Fraud Prevention Act, and a crime of insurance fraud. On Oct. 1, the Governor conditionally vetoed S-1918.

NJSBA POSITION ON THE BILL PACKAGE

The New Jersey State Bar Association supports this package of bills to reform New Jersey’s workers’ compensation laws. Click here to read the NJSBA Position.

The bills were reviewed by the Association’s Board of Trustees, Executive Committee, Legislative Committee, and Workers’ Compensation Section, which is evenly divided among petitioner and respondent attorneys, large and small firms, representatives of the Division of Workers’ Compensation and Insurance Counsel representing some of New Jersey’s largest insurance carriers. We share the Legislature’s goal of ensuring the strength and vibrancy of New Jersey’s workers’ compensation system.

Earlier this year, the NJSBA was an active participant in making recommendations during the Senate Labor Committee hearings on the bill package.

The Association made the following recommendations to improve the system:

• While we recognize that the State faces challenging fiscal times, we support an increase in the number of Deputy Attorneys General assigned to the Second Injury Fund to handle complex cases.
• We recommend an amendment to statute and regulation to ensure that an injured worker receives treatment and wage replacement benefits in a timely manner under the Uninsured Employers’ Fund.
• We recommend better enforcement of the Fund to reduce the number of non-compliant uninsured employers and those who misclassify workers as independent contractors or into low risk job titles to evade paying proper calculated premiums.
• Workers’ compensation judges should be given jurisdiction to decide whether a lien with the Division of Temporary Disability Insurance is appropriate and should be re-paid to the Division. We believe these judges have the necessary expertise to resolve these matters fairly.
• We support efforts to modernize and improve the Division of Workers’ Compensation computer system to enhance appropriate tracking and record-keeping, which is vitally important to the system.
• Finally, we echo the support of virtually every speaker at the Senate Labor Committee hearing, beginning with Justice James Coleman, calling for improvement in the vetting of workers’ compensation judges. In 2000, the NJSBA Workers’ Compensation Section established a committee to confidentially screen judicial candidates and report directly to the NJSBA President. We renew our commitment to serve the Governor and the Legislature in this important role, akin to the process of the NJSBA Judicial and Prosecutorial Appointments Committee to review judges of the NJ Superior Court.

REGULATORY CLARIFICATION
With respect to S-1913 and S-1916, we support regulatory clarification and will be submitting comments directly to Commissioner David Socolow.

On Sept. 25, the General Assembly passed a seven-bill package designed to reform various aspects of corporate and business law:

S-2050/A-2879 (Adler/Diegnan) Allows certain corporate notices to be provided via electronic transmission. On Sept. 25, A-2879 passed in the Assembly (79-0).

A-2880 (Diegnan) Eliminates 10 day advance notification of proposed effective date of certain shareholder action. On Sept. 25, A-2880 passed in the Assembly (79-0).

A-2881 (Vas) Allows director of corporation to provide notice of resignation, which resignation is only effective upon occurrence of certain event. On Sept. 25, the bill passed in the Assembly (79-0).

S-2049/A-2882 (Adler/Diegnan) Provides one hour and two hour service options for expedited over the counter corporate service requests. On Sept. 25, A-2882 passed in the Assembly (79-0).

A-2883 (DeAngelo) Provides that corporate by-laws may allow corporation to eliminate plurality voting for corporate directors. On Sept. 25, the bill passed in the Assembly (79-0).

A-2884 (Albano) Expands scope of unincorporated entities permitted to merge or consolidate with domestic corporations. On Sept. 25, the bill passed in the Assembly (79-0).

A-2885 (Milam) Allows officers of corporation to grant employees and officers of corporation shares of stock, rights or options.

The NJSBA Business Law Section supports all of these bills and the bills are pending review by the NJSBA’s Legislative Committee and Board of Trustees.

The 213th State Legislature (2008-10) began on January 8, 2008. This report provides an update on significant legislation since the start of the session.

NJSBA ended the 212th Legislative Section with several significant achievements:

• Enactment of two NJSBA-drafted laws - irrecondilable differences and legislation to clarify the Uniform Probate Code with the Wrongful Death Act
• Defeat of legislation to extend the $75 attorney assessment
• Elec regulations substantially narrowed th exempt attorneys from the coverage of lobbying laws.
• NJSBA's legislative committee refined criteria for review of legislation
• NJSBA Day in Trenton conceived and launched for 2008
• Participated in ABA Lobby Day to build NJSBA's visibility with New Jersey's Congressional delegation and with the American Bar Association
• Legislative Training Program launched to educate SBA members of legislative procedures and protocol.

On May 12, S-1981/A-2715 (Adler/Roberts ), which provides that the New Jersey Supreme Court shall have the authority to establish the number of juror challenges through its rulemaking process, was introduced and released by the Assembly Judiciary Committee, and is moving quickly through the State Legislature.

S-1784/A-2789 (Sweeney/Burzichelli) was recently introduced and is pending in the State Legislature and is pending before the Senate and Assembly Judiciary Committees.

The bill would:

• Create eight additional Supreme Court judgeships statewide
• The new judges would be funded by an across-the-board increase in court fees.
• 95% of the fee increases would annually be appropriated by the Department of Treasury for LSNJ.
• 5% of the fee increase would annually be appropriated to the Department of State, Higher Education Services to be allocated equally among Rutgers Law School, Newark and Camden and Seton Hall Law School for clinical programs which provide free legal representation to the poor.

On May 5, the Senate Labor Committee held a public meeting to discuss ways to improve New Jersey’s worker’s compensation system, driven ostensibly by a series of articles in the Star Ledger about the system. NJSBA was among a select group of invited organizations which presented testimony. Arthur H. Kravitz, Chair and Marcia S. Freedman, Chair-Elect of NJSBA’s Workers’ Compensation Section, provided the NJSBA’s policy position.

NJSBA President Lynn Fontaine Newsome, First Vice President Allen A. Etish, Immediate Past President Wayne J Positan, together with ABA State Delegate and NJSBA member Thomas R. Curtin and NJSBA Executive Director Angela Scheck and Legislative Counsel Valerie Brown attended ABA Lobby Day 2008 in Washington, DC on April 15-17

• ABA Lobby Day 2008 Summary of Activites
  
• President Lynn Fontaine Newsome, Dennis Drasco, Congressman Donald Payne and Executive Director Angela Scheck
  
• Congressman Frank LoBiondo, Executive Director Angela Scheck, President Lynn Fontaine Newsome,1st Vice President Allen A. Etish and ABA State Delegate Thomas R. Curtin
  
• President Lynn Fontaine Newsome, Jonathan H. Lomurro, Congressman Steve Rothman, ABA State Delegate Tom Curtin and Executive Director Angela Scheck
  
• Jonathan H. Lomurro, 1st Vice President Allen A. Etish, Congressman Steve Rothman, Executive Director Angela Scheck, President Lynn Fontaine Newsome and ABA State Delegate Tom Curtin
  
• Congressman Albio Sires and ABA State Delegate Thomas R. Curtin
  
• ABA State Delegate Thomas R. Curtin, President Lynn Fontaine Newsome, Congressman Scott Garrett and Executive Director Angela Scheck
  
• Capitol Building, Washington, DC
  
• Capitol Building, Washington, DC
  
• United States Supreme Court Building, Washington, DC

On March 3, 2008, President Lynn Fontaine Newsome welcomed close to 60 legislators and NJSBA members at the first Annual NJSBA Day in Trenton held at the State House Annex. President Newsome presented the Robert B. Meyner Award, instituted by the Board of Trustees in recognition of members of the NJ Legislature and/or Executive Branch, to State Senators John H. Adler, Christopher "Kip" Bateman, and Nicholas P. Scutari; and Assemblymen Neil M. Cohen, Reed Gusciora and Joseph Vas. Congressman Rodney P. Frelinguysen, State Senator Nia H. Gill and former State Senator Robert E. Littell were also recognized with the award, but unable to attend the event. Keynote remarks were delivered by former NJ Supreme Court Chief Justice James R. Zazzali.

• Senate Resolution Commemorating the First Annual New Jersey State Bar Association Day in Trenton
  
• Fact Sheet and NJSBA Written Laws Enacted Since 1990
  
• NJSBA President Lynn Fontaine Newsome and State Senator Nicholas P. Scutari
  
• Former NJ Supreme Court Chief Justice James R. Zazzali
  
• State Senator John H. Adler
  
• State Senator Thomas H. Kean Jr.
  
• Reception at NJSBA Day in Trenton
  
• Amirali Haidri, Kevin McCann, Charles Kahwaty and Eli Eytan
  
• Richard Steen, Donna duBeth Gardiner and Susan Feeney
  
• NJ State Capitol Dome

New Jersey State Bar Association High Priority Legislation/Issues - 212th Legislative Session & Federal Legislation (includes bills drafted by the NJSBA.

On Thursday, January 24, 2008, the Senate Health, Human Services and Senior Citizens Committee released, with committee amendments, S-611 (Vitale), which permits an adoptive person access to the original birth certificate and other related information.

Click here to read the Senate Health, Human Services and Senior Citizens Committee statement to S-611 (Vitale).

The New Jersey State Bar Association opposes S-611 (Vitale) in its present form for reasons that have been articulated over many years. These reasons include the following:

• The bill tramples the birth mother’s reasonable expectation of privacy;
• The bill conflicts with the Infant Safe Haven Act; and
• The bill’s reporting requirements are burdensome and unreasonable on the birth mother.

The NJSBA has offered suggested amendments to seek to address the legal and practical realities of adoption law. We support the use of mutual consent adoption registries. We support adult adoptees’ access to the original birth certificate, if made prospective in its application with reasonable safeguards to address the parties’ constitutional rights.

On January 13, 2008, Governor Corzine signed into law legislation, S-3025 (Lesniak/Kyrillos)/A-4660 (Quigley/Cryan), to clarify that the pay-to-play disclosure laws do not apply to non-profit entities. The new law, P.L. 2007, c. 304, takes effect immediately.

On January 13, 2008, Governor Corzine signed into law legislation, S-68/A- 812 (Adler/Gusciora) which amends the wrongful death act to clarify that surviving children continue to share in any recovery awarded under that act. The new law takes effect immediately but is made retroactive to the date the provisions of P.L.2004, c.132 took effect (February 28, 2005).

On January 13, 2008, Governor Corzine signed into law legislation, S-2975/A-4591 (Buono/Caraballo), which revises laws concerning hate crimes and bullying; establishes Commission on Bullying in Schools. Section 9 of the new law takes effect immediately. Sections 1 through 8 take effect on March 15, 2008, but the Attorney General and the Commissioner of the Department of Education are to take such anticipatory administrative action in advance thereof as is necessary for the implementation of the new law.

On January 15, 2008, Gov. Jon Corzine chose to allow a constitutional deadline to expire without signing S-176 (Scuatri) which expands the type of recoverable damages under wrongful death actions to include mental anguish, emotional pain and suffering, loss of society and loss of companionship.

On September 11, 2007, Governor Jon Corzine signed S-1666/A-3038 (Scutari/Gill/Cohen), which prohibits the use of “step-down” provision to limit uninsured and underinsured motorist coverage in certain circumstances, legislation strongly supported by the New Jersey State Bar Association.

The New Jersey insurance statutes require an insurer that issues a motor vehicle liability policy to provide uninsured and underinsured motorist coverage up to at least $250/500,000 split limits of $500,000 single limit (not to exceed the liability limits). N.J.S.A. 17:28-1.1(b). In Pinto v. NJM, 183 N.J. 205 (2005), the Supreme Court held that a motor vehicle liability policy that names a corporate or business entity as a named insured may “step-down” UM/UIM coverage for employees who are not named individually on the corporate policy and who are named individually on a personal policy, even if the employee is injured in a corporate vehicle while in the course of employment.

The purpose of this law is to reverse the effect of Pinto v. NJM and to prohibit step-down clauses that provide “less insured or underinsured motorist coverage for an individual employed by the corporate or business entity than the coverage provided by the named insured under the policy.” NJSBA supports the law for the following reasons:

1. Step-down clauses violate the plain language of the insurance statutes which require insurers to offer UM/UIM coverage as an option to the named insured.
2. Step-down clauses do not fulfill the reasonable expectations of the insured.
3. Step-down clauses provide illusory coverage.

The New Jersey State Bar Association strongly supports S.442/H.R.916 (Durbin/Scott).

The NJSBA Board of Trustees, Legislative Committee and Criminal Law Section voted to support this legislation because we believe it establishes an appropriate and necessary incentive to keep talented attorneys in public service and imperative to assure the continued existence of public service legal careers.

This nation is facing a crisis with recruitment and retention of talented attorneys in public service legal careers. The underlying reason for not choosing to enter into public service is consistent: high student loan debt. As a result, many young attorneys are forced out of public service careers. This is a particular problem for the prosecutor and the public defender programs as prosecutors provide a mechanism to protect the health, safety and welfare of citizens and public defenders provide a critical voice for the indigent while fulfilling an important right guaranteed under the Sixth Amendment of the U.S. Constitution.

A student loan repayment assistance program must be enacted immediately in order to assure that the future of prosecutor and public defender programs across the country are secure.

The amount of debt that a law student carries is substantial, averaging approximately $78,000 and can be as high as $170,000 and even higher. Upon graduation, it is the unfortunate reality that most monthly payments of student loans mirror that of a mortgage payment. Due to this exorbitant debt that law students and law graduates carry, many are forced to forego dreams of working in public service.

According to a survey completed by Nellie Mae, a Sallie Mae Student Loan Company and popular source of loans for students, borrowers who report the highest levels of loan burden upon graduation are professionals, particularly attorneys and those who went to law school. In addition, according to the same survey, about 40% of law graduates have student loan levels that exceed their current salaries, even those with high salaries. As a result, when it comes to default risk on student loans, it should be no surprise that law students rank near the top. In fact, according to the National Law Journal, law students have the highest default rates of any students borrowing for graduate studies.

The aforementioned statistics are not so shocking when one considers the cost of law school relative to salaries. As reported by the National Law Journal, tuition and costs of public and private law schools have drastically soared since 1990. In-state residents at public law schools are paying 267% more than in 1990 and non-residents are paying 197% more. Private tuitions have also increased by 130%. These increases alone are alarming; however, when coupled with the meager 78% increase (averaging $125,000.00/yr.) in salaries of the top law firms in the nation since 1990, these statistics are quite disturbing.

As a result of the skyrocketing cost of law school education, federal loans are no longer sufficient to cover tuition and other costs of law school. In addition to the available federal loans, many law students must take out private loans in order to cover the cost of school. Interest rates on federal loans are relatively low, most under 5%. However, the same is not true for private loans. Currently, there are no regulations on the interest rates on private student loans. As a result, some law graduates may be paying in excess of 10% on such loans. This is significant as private loans can be as high as $60,000.00 or higher. When financed for 15, sometime 30 years, the total amount repaid on such a loan is distressing.

There is no dispute that attorneys who work in non-profit sector, like prosecutor and defenders, fall at the bottom of the attorney pay scale, earning less than one third of their private sector peers. Unfortunately, those who have chosen to stay in low paying public service careers have chosen to do so at a significant price. Many have made substantial personal sacrifices in order to pursue their dream of serving the public.

Those who do begin their legal career in public service will often find it short lived, forced out due to inability to pay back loans. Tragically, this failure to retain talented attorneys significantly affects the quality of representation received by clients and the delivery of justice.

Student Loan Repayment Assistance Programs are necessary to help achieve the recruitment and retention of talented employees. In fact, the Federal government employs such a program which has had a positive impact on the recruitment and retention of talented employees. According to the U.S. Office of Personnel Management, in fiscal year 2006, 34 Federal agencies provided 5,755 employees with a total of nearly $36 million in student loan repayment benefits, each receiving an average of $6,245.00. As a result of the student loan repayment programs, several agencies have reported to Congress that use of the program has helped them achieve their recruitment and retention goals. Parenthetically, since 2002, the amount of federal assistance for this program has increased ten-fold. Clearly, such a student loan repayment program is successful and needed in the area of public sector attorneys.

By establishing the John R. Justice Prosecutors and Defenders Act of 2007, programs across the county will be able to recruit and retain the talented attorneys that are needed to protect the rights of the citizens of our country. Public service work embodies the highest ideals of the legal profession. The passion and sacrifices made by public service attorneys should be recognized and rewarded. Establishing a loan repayment assistance program is one step towards achieving that goal.

On July 10, the NJ Election Law Enforcement Commission (ELEC) agreed with the NJ State Bar Association when the Commission decided not to adopt the proposed definition of “administrative proceeding with the state,” regarding amendments and new rules proposed by ELEC to implement the Legislative and Government Process Activities Disclosure Act, N.J.S.A. 52:13C-20. The NJ State Bar Association asked for a clarification of the term so that attorneys would know with certainty when a communication was exempt from lobbying because it was made within the context of an “administrative proceeding.” The new regulations could have required many attorneys engaged in the practice of law to register as lobbyists and comply with ELEC reporting requirements.

The Commission noted that from the comments received, the proposed definition “has not provided the desired clarification for an attorney who needs to know whether or not his or her communications is exempt from lobbying reporting requirements.” The Commission indicated it would revisit the definition in future rulemaking.

In the August 6, 2007 edition of the New Jersey Register, the Commission specifically thanked NJSBA Immediate Past President Wayne Positan, and NJSBA members Paul Josephson and John Spinello for their comments and testimony on the proposal. Additionally, NJSBA Past Presidents Edwin J. McCreedy and Stuart Hoberman submitted comments on behalf of the State Bar in March and September of 2005 that outlined the association's position. These comments are provided immediately below as an attachment.

In 2004, the Legislative and Government Process Activities Disclosure Act expanded the scope of reportable lobbying activity to include lobbying concerning “governmental processes,” also called “administrative lobbying.” The amendments exempted from “governmental processes” any matters within the attorney-client privilege and matters concerning collective negotiations. In 2005, ELEC adopted an exemption from the scope of lobbying reporting for certain activity by an attorney representing a client. The exemption excluded “any communication by an attorney representing a client in the regular course of a routine litigation or administrative proceeding with the state, or in the course of a quasi-judicial civil or administrative proceeding with the state.”

The NJSBA will continue to monitor the progress of amendments by ELEC regarding the Lobbying Act, and in particular, those that fall under the category "Lobbyists and Governmental Affairs Agents."

2006 was the first year of the two-year legislative session. During the 2006 legislative year, 103 laws, 3 joint resolutions and 8 concurrent resolutions were approved. The New Jersey Legislature provides information on these chapter laws, joint resolutions and concurrent resolutions.

Use the following link to view a PDF file of The Summary of the Legislature's Enactments for 2006.

www.njleg.state.nj.us/legislativepub/newSummaryofEnactments05.pdf.