March 2, 2014
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.
Supreme Court Invites Comments on Rules Reports
The Supreme Court recently invited review and comment on six reports of various Supreme Court rules committees. A full text of the reports and details about submitting comments, which are due by April 10, can be found at njcourtsonline.com. Highlights of each are summarized below.
Increased Training Sought by Committee on Complementary Dispute Resolution
While the Supreme Court Committee on Complementary Dispute Resolution has proposed a variety of rule amendments focusing on various issues in the arbitration/mediation process, much of its proposal is devoted to increasing and bringing uniformity to the training requirements for mediators. The committee proposes that all roster mediators, regardless of whether they are mentor-mediators or only mediating family part economic issues, be required to have 40 hours of training, an increase from the 18 hours that is currently required. The committee also recommends requiring mentors for all mediators, regardless of their previous experience. These new requirements would be applied prospectively only.
Other noteworthy recommendations include permitting mediation to occur after arbitration proceedings and, if the mediation is successful, allowing the arbitration award to be disregarded. Included is a recommendation to allow a non-roster mediator to negotiate a fee for the entire mediation session and eliminating the requirement that the first two hours of mediation services be provided for free.
Criminal Practice Committee Proposes Makeover for Pretrial Intervention Program
Proposed changes to the pretrial intervention program consume much of the Criminal Practice Committee report. The committee recommends a number of new rules and rule amendments to replace the current guidelines and commentary that govern admission into the program. Chief among the recommendations is to eliminate the guidelines and commentaries in favor of the proposed rules.
Prosecutorial consent would be required for admission of defendants charged with a crime that is subject to either a presumption of incarceration or a mandatory minimum sentence, or defendants previously convicted of third- and fourth-degree crimes where imprisonment was not imposed; and for defendants who are public officers or employees and are charged with crimes that touch upon their public office or employment. Defendants with prior diversions, non-indictable offenses, prior convictions for first- or second-degree crimes or prior convictions for any crime for which the defendant was sentenced to a term of imprisonment would be completely precluded from the program.
Some committee members argued against the recommendations in a dissent that advocates for maintaining the current pretrial intervention guidelines and commentaries. The dissent contends that the rule proposals shift much of the initial approval and screening process to the prosecutor and deny defendants and their attorneys the opportunity to advocate for their admission based on their individual and unique circumstances.
Evidence Committee Says It’s Time for Uniform Mental Health Service Provider Privilege
In Part I of its report, the Supreme Court Committee on the Rules of Evidence recommends the addition of a new evidence rule, N.J.R.E. 534, to provide a uniform mental health service provider privilege to replace the various privileges that currently apply to communications between patients and different providers. The rule specifically defines those types of service providers to which the privilege would apply, and provides for a number of exceptions to the privilege.
Part II provides a report of a subcommittee charged with examining N.J.R.E. 702 and applicable case law to determine if New Jersey’s evidence rules are unclear and result in inconsistent standards being applied to admit expert evidence. The subcommittee concluded that both the rule and relevant case law have been very clear in defining standards for determining the admissibility of evidence. Accordingly, the subcommittee also concluded that trial courts are not applying inconsistent standards in admitting expert evidence, and there is no conclusive evidence that current law is creating other problems, such as attracting a disproportionate number of negligence or other civil litigation matters to the state. Finally, the subcommittee noted that "the tradition in New Jersey has been for law in this area to develop through case law," and the current rule provides flexibility for courts to refine and modify the admissibility standards through future case law, as appropriate.
Protecting and Empowering Children is Focus of Family Practice Committee
The safety, support and protection of children are the focus of several rule amendments recommended by the Supreme Court Family Practice Committee. Some of the amendments seek to clarify the court's authority to monitor children who have been placed in resource family care, and to ensure that children receive notice of and are given an opportunity to attend their permanency hearings. Other proposed amendments require that all child support orders automatically be entered into the statewide automated child support enforcement system and be supervised by the Probation Department, unless the court determines otherwise. Various other amendments proposed by the committee attempt to conform the rules to existing statutory requirements, and seek to update the rules to reflect recent case law trends, such as in the area of applications for grandparents' visitation rights and calculation of child support when multiple child support orders are in existence.
Collection of Data Recommended by Committee on Minority Concerns
Among other recommendations, the Supreme Court Committee on Minority Concerns recommends the Judiciary collect more demographic information about attorneys and about individuals using court programs, such as the Ombudsman Program. For attorneys, the committee recommends such data be collected via the annual attorney registration process. For other programs, the committee recommends the information be gathered as part of the intake information process or be voluntarily self-reported.
Municipal Court Practice Committee Advocates for Expanded Municipal Judge Authority
Municipal court judges would be permitted to hear motions to suppress evidence seized under warrants issued within the jurisdiction of the municipal court under amendments proposed by the Supreme Court Committee on Municipal Court Practice. This would expand the power of municipal court judges in recognition of their proven ability to resolve motions to suppress evidence where warrantless searches have been involved, and would seek to alleviate some of the overcrowding of the superior court dockets. The proposal would also allow warrants issued with technical insufficiencies or irregularities in the papers or processing to stand.
Third Circuit Seeks Comments on Disciplinary Rule Amendments—Inactive Status Created
The United States Court of Appeals for the Third Circuit recently invited comments on proposed amendments to the Third Circuit Rules of Attorney Disciplinary Enforcement. A full text of the proposal and details about submitting comments, which are due by March 9, 2015, can be found at http://www.ca3.uscourts.gov/news/public-notice.
The proposed amendments will make important changes to the existing rules and impact lawyers who appear before the U.S. Court of Appeals for the Third Circuit. One notable part of the proposal would establish an inactive status for attorneys in the Third Circuit. This status would apply not only if an attorney requests it or retires from the practice of law, but also if the attorney has not made an appearance before the Third Circuit in the past five years. Once on inactive status, an attorney could not appear before the court until he or she took steps to become reinstated. An attorney could avoid being placed on inactive status by filing a statement with the clerk of the court that the attorney wishes to remain active, along with a form provided by the clerk indicating the attorney is not currently under any criminal or disciplinary investigation or subject to any disciplinary sanction by any state or federal bar of which the attorney is a member.
SAVE THE DATE
2015 NJSBA Town Hall Advocacy Meeting
Ethics in State Government
9 a.m. to 12 p.m.
Trenton War Memorial
(3.3 NJ ethics credits)
Join the NJSBA in Trenton for this half-day continuing legal education (CLE) program, which will explore the ethical and compliance issues attorneys and executive and legislative branch state government staff face on a daily basis. There will be a trio of panels featuring attorneys, legislators, and key decision makers, who will discuss the administrative challenges and the ethical standard members of executive and legislative branches of government must follow. The program will also address the ethical obligations attorneys face when interacting with public officials and legislative staff and the interplay with the New Jersey Rules of Professional Conduct. Register at www.njsba.com.