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Key Developments

 
 
  • 8/9/16 - The New Jersey Supreme Court has revised the Code of Judicial Conduct, effective September 1, 2016. In a Notice to the Bar issued by the AOC, the revisions “set more clearly defined guidelines for avoiding the appearance of impropriety in both judicial and personal conduct” and “a more detailed guide for judicial disqualifications.” Of particular significance to the pro bono community is new Canon 4, Rule (D) (4) - A judge may encourage lawyers to provide pro bono legal services. There is no official commentary to this rule.


  • 7/26/16 - In the Matter of the Adoption of a Child by J.E.V. and D.G.V. - In a case of first impression in New Jersey, the N.J. Supreme Court has determined that indigent parents who face termination of parental rights in contested proceedings under the Adoption Act, N.J.S.A. 9:3-37 to -56, are entitled to counsel under Article I, Paragraph 1 of the State Constitution. The Court held that an indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel under the due process guarantee of the New Jersey Constitution. In so holding, the Court reaffirmed earlier decisions that the termination of one’s parental rights plainly “implicates a fundamental liberty interest” by completely and permanently severing the tie between parent and child. The Court recognized that without the assistance of counsel to prepare for and participate in the hearing, the risk of an erroneous outcome is high. Accordingly, the parties are best served when both sides present arguments with the help of able attorneys; the outcome not only protects the parent’s rights and the child’s welfare, but also helps bring finality to an adoption proceeding. The Court’s decision follows other states which have also found that an indigent parent is entitled to counsel in a private adoption matter, based on either due process principles under their state constitutions or applicable statutes. With regard to when the appointment of counsel arises, the Court said the critical event in the timeline occurs when the parent formally objects to the adoption agency’s decision to proceed toward adoption. Finally, because of the complicated nature of termination proceedings the Court emphasized the need for the appointment of attorneys with the experience to handle these matters, such as those in the Office of Parental Representation in the Public Defender’s Office. But noting that office’s current lack of funding, the Court declined to order it to take on these cases calling instead on the Legislature to address this issue. In the interim, however, the Court said it would turn to private counsel for assistance, inviting pro bono organizations to offer their services and suggesting that it “may need to assign counsel through the Madden list,” although that “is not an ideal solution.”

  • 5/27/16 - The Administrative Office of the Courts has promulgated new procedures to implement changes in the expungement law which cover Drug Court expungements and expungement of arrests that did not lead to conviction.

  • 2/3/15 - All certified pro bono service organizations must annually file a renewal certification with the New Jersey Judiciary by April 30th. For currently certified organizations, the online renewal application is now available on the pro bono portal of the Judiciary’s website. There is a link to the renewal application from the site; it can also be directly accessed at the Judiciary's Pro Bono Search Organization page. As noted, the renewal date is no later than April 30, 2016.

  • 12/22/15 - The NJ Administrative office of the Courts has published a Notice to the Bar reminding all certified organizations providing pro bono services pursuant to R. 1:21-11, et seq., that they must renew their certifications annually. Renewal certifications must be filed through the Judiciary’s Pro Bono Organizational portal by April 30, 2016. The Notice states that the online renewal form will be available no later than February 1, 2016 at the New Jersey Courts' Pro Bono Information page, and that an additional notice will be will be published when that form has been posted.

  • 10/23/15 - In re Adoption of a Child by J.E.V. and D.G.V. (Published App. Div. 10/23/15). In this case a low-income parent considered surrender of her child to a state-licensed private adoption agency (Children’s Home Society), but after the statutorily mandated adoption counseling elected to not sign a surrender but instead leave her child in foster care with the private agency. She signed a plan agreeing to find a job and permanent housing. When those issues were not resolved after several months, the private agency notified the mother that they had placed the child and would be filing for adoption against her and in fact encouraged the “financially advantaged foster parents” to file the adoption complaint (after hiring and expert to perform bonding and other evaluations).

    The Appellate Division focusing on both the magnitude of the consequence to the parent and the fact that it was “imposed by the action of a State-licensed agency,” held that “indigent parents facing the termination of parental rights by private agency action in this type of situation are entitled to appointed counsel.” The decision explicitly refrained from addressing whether a right to counsel exists when “a non-custodial parent [is] objecting to adoption after the custodial parent’s surrender of parental rights, or [a biological parent is] objecting to a stepparent adoption, or objecting after the child is left with a relative or friend.” The court remanded for a new hearing with appointed counsel for the mother, but also for consideration of whether to appoint counsel to represent the child.

    The Appellate Division pointed to a number of potential errors of the trial court, largely to show where appointed counsel would have assisted the mother and the court. The court also notes, that there is no statutory authorization for the Office of Public Defender to provide representation, so the trial court in this case and the AOC (perhaps with input from the conference of presiding family court judges) more generally will have to address the process for appointment of counsel in these cases.
  • 9/18/15 - In Re Petition of J.R. to Expunge a Criminal Record, Docket No. A-5878-13T3 (App Div. Decided Sept 16, 2016). In this per curiam decision, the Appellate Division upheld the denial of a petition requesting expungement of two disorderly persons offenses where the petitioner subsequently obtained a dismissal of an out-of-state disorderly persons’ offense after successfully completing a supervisory treatment program. Crucial to the decision, the trial court considered the out-of-state disorderly persons arrest a “criminal charge.” Doing so resulted in the petitioners ineligibility to expunge his two other disorderly persons convictions pursuant to N.J.S.A. 2C:52-14(f) which provides that a petition shall be denied if the petitioner seeking expungement of a conviction . . . has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program.” The decision seems contrary to existing law since in New Jersey, “criminal” refers to crimes only and not disorderly persons or lesser offenses. See State v. B.C., 235 N.J. Super. 157 (Law Div. 1989).

  • 8/11/15 - In the Matter of the Expungement Petition of J.S. and In the Matter of Expungement of the Criminal Records of G.P.B. - The New Jersey Supreme Court today released a split-decision opinion on two expungement appeals questioning the “crime spree” doctrine, In the Matter of the Expungement Petition of J.S. and In the Matter of Expungement of the Criminal Records of G.P.B.  The Supreme Court decision seemingly puts to rest any lingering hope that the crime spree doctrine – a concept which previously allowed for the expungement of a petitioner’s separate offenses if they occurred during a “crime spree” – is available to petitioners.

  • 6/15/15 - Foreclosure Commonly Asked Questions - As part of the Judiciary's continuing commitment to ensure due process and fairness, to facilitate timely and efficient processing of foreclosure cases this notice sets forth questions and answers to common problems, concerns, or questions presented to the Superior Court Clerk's Office regarding foreclosure practice.

  • 1/8/15 - Effective January 5, 2015, the Judiciary is implementing a new security measure, “Step-up Authentication”, for all attorneys who submit their annual attorney registration and payment electronically. A Notice to the Bar explains the new authentication process.

  • 12/29/14 - The Administrative Office of the Courts has issued a Notice to the Bar, along with the new court rule - (R.1:21-11(b)(1) – governing organizations providing pro bono services. The rule specifies the definition of, and requirements for, organizations to become certified and thereby take advantage of opportunities that certification conveys. The rule is effective on January 1, 2015.

  • 9/2/14 - The latest report of LSNJ’s Poverty Research Institute - What is Poverty? Measuring Deprivation in New Jersey - defines poverty based on what it really costs to live in this state rather than on the lower federal poverty level standards. Earlier reports from PRI have documented the extensive, but largely unmet, legal needs of low-income individuals. These latest poverty findings, coupled with the extent of unmet legal needs, demonstrate the continuing significance for pro bono legal assistance in New Jersey. Please take time to read these reports and volunteer to help.

  • 7/2/14 - Casal v. Hyundai Motor America (App. Div. - decided 7/2/14) - In a reported decision the Appellate Division held that third party add-ons sold by a car dealer fall within “the cost of any options or other modifications arranged, installed, or made by the manufacturer or its dealer within 30 days after the date of original delivery, and any other charges or fees including, but not limited to, sales tax, license and registration fees, finance charges, . . . ” The case involved the purchase of a new car which, within a very short time, had sufficient defects that the dealer agreed to its return under the Lemon Law and to give the buyer a new car. The buyer also had purchased several optional vehicle protection plans through the dealer from third party vendors. However, despite assurances from the dealer, the buyer found it difficult to cancel these protections for the original car and transfer them to his new car. Counsel that he had retained to represent him in the negotiations for return of the original defective car then spent a substantial portion of time obtaining the cancellation and transfer of the protection plans for which he sought counsel fees. Reversing the trial court, the Appellate Division held that recovery of attorneys’ fees is appropriate: “[T]he Lemon Law requires the consumer to be made whole and authorizes a counsel fee award, if counsel is needed to obtain relief from any options sold through the dealer.”

  • 4/30/14 - Hobson v. NJ State Parole Board (App. Div. – decided 4/29/14) – In a reported decision, the Appellate Division reversed the revocation of parole of the appellant finding that the evidence was inadequate to support a finding that he violated a general condition of parole involving possession of a controlled dangerous substance, and that evidence of the violation of the special condition - refraining from the purchase, possession and use of any alcohol - coupled with the appellant’s record on parole was inadequate to support a finding that he had "seriously or persistently violated the conditions" of his parole. The court, however, remanded for reconsideration of whether any modification of the condition of the appellant’s release was warranted because of his violation of the special condition regarding the alcohol violation. Of particular significance is the court’s observation that the statutory standards for revocation require proof by clear and convincing evidence that the person "has seriously or persistently violated” the conditions of parole, but that the legislature has not defined the type of conduct governed by that standard nor has the parole board adopted any regulation to guide the exercise of its discretion in its revocation decisions.

    Representation of parolees in revocation hearings is one area of mandatory pro bono assignments under the policy established by Madden v. Delran.

  • 4/28/14 - The Administrative Office of the Courts has issued a Notice to the Bar about issues arising from foreclosure practice. Written in a question-and-answer format the notice addresses foreclosure filing issues and also the most common filing deficiencies that result in motion applications being returned to the filer for correction before being accepted for filing.

  • 4/24/14 - Sessner v. Merck Sharp & Dohme, Corp. (App. Div., decided April 23, 2014) – In a reported decision, the Appellate Division dismissed the appeal of a case that had settled four months earlier without the court having been notified by either counsel of the settlement. Notification to the court was made telephonically only two days before it was to issue a comprehensive opinion. Citing the waste of scarce judicial resources, the extensive number of appeals pending in the Appellate Division, and the significant consequences to some litigants awaiting those decisions the court called the neglect of notification “unconscionable.” The court decided, however, not to impose sanctions against both counsel but instead “determined that publication of this decision is sufficient deterrent to repetition.”

  • 3/24/14 - In a Notice to the Bar, the Supreme Court has published proposed new court rules and rule amendments designed to clarify various aspects of pro bono practice and to expand opportunities for pro bono service. The Court is requesting written comments about these rules and amendments which are due by April 14, 2014 and may be submitted by mail or e-mail.

  • 1/14/14 - D.N. v. K.M. (decided January 13, 2014) - In a brief per curium opinion, the Supreme Court denied certification in a case raising the issue of whether counsel should be appointed for indigent Individuals in civil proceedings under the Prevention of Domestic Violence Act. The Court concluded that the case was “not a good vehicle to embark on a constitutional analysis of the issue presented because, based on the record before us, petitioner did not assert that she was indigent or ask the trial court to appoint counsel to represent her.” The Court characterized the issue in the context of the case as “purely academic.”

    Justice Albin filed a dissenting opinion noting the significant consequences that might result for a defendant mother who is found to have violated the Act. “The loss of these rights and imposition of these penalties may occur on an unlevel playing field where an inarticulate defendant, ignorant of the law and courtroom procedures, is prosecuted by a well-trained, skilled, and experienced attorney representing the opposing party.” He also disagreed with the Court’s contention that the right to counsel issue is “purely academic” because the Appellate Division specifically decided the issue in a reported decision. Accordingly, “its ruling stands as the law of the State until this Court says otherwise.”

  • 10/25/13 - Study Underscores Health, Wellness and Career Benefits of Volunteering (from Nonprofit Quarterly) - It’s no secret within the nonprofit sector that volunteers are often the difference between “make” and “break,” the special sauce that keeps an organization moving forward, delivering against its mission, serving its constituents. From hands-on volunteers to skills-based volunteers to the volunteer leaders who serve on boards, it’s almost impossible to calculate the value that those who give back add to the sector. So it’s nice to know that those who volunteer benefit from the experience as well.

  • 10/23/13 - Effective November 1, attorney ID numbers will be required on all document filings pursuant to R.1:4-1(b).

  • 10/22/13 - Widow’s Bankruptcy Case Poses Risk to Rent-Stabilized Tenants (from The New York Times) - After her husband died, Mary Veronica Santiago fell behind on her bills, and the creditors began to call.

  • 8/20/13 - The New Jersey Supreme Court has amended Attorney Advertising Guidelines 1 & 2. The amendments are effective October 1, 2013. Guideline 1 will require that attorney advertisements provide specific contact information for the attorney or law firm including any of the following: street address of the regular place of business, mailing address, telephone number, fax number, or e-mail address. Guideline 2 specifies the placement and font size of the word “Advertisement” on envelopes and letters soliciting clients through advertising.

  • 8/12/13 - In Hirsch v. Ampere Financial Services, the NJ Supreme Court held that when there are related claims against numerous defendants, only some of whom are signatories to or within the scope of an arbitrartion clause, the “intertwinement of claims and parties” in a dispute, without more, is not enough to force arbitration of the claims against all parties. The non-arbitration clause defendants cannot compel arbitration, even if that means parallel arbitration and court proceedings.

  • 8/12/13 - In Emma v. Evans, the NJ Supreme Court rejected the Gubernat/Ronan presumption that the surname choice of the primary custodial parent serves the best interest of the child. The Court articulated 11 factors (some previously mentioned in Gubernat) that should be considered in determining whether a child’s best interest is served by changing his or her surname, which was previously agreed upon by the child’s parents, regardless of the marital status of the parents at the time the child was born and named.

  • 5/17/13 - The Supreme Court Working Group on the Proposed Preadmission Pro Bono Requirement has issued a report recommending that the Supreme Court establish a preadmission pro bono requirement for applicants to the New Jersey Bar, along with parameters of the program to implement it. In a Notice to the Bar, Judge Glenn A. Grant, Acting Administrative Director of the Courts and the Chair of the Working Group, asks for comments on the report by June 21, 2013. Attorneys and others are invited to review the report and provide comments directly to Judge Grant at the address provided in the Notice.

  • 5/3/13 - The AOC recently published a Notice to the Bar making clear that the App Div will not accept for filing pleadings that are not in conformance with the rules (or do not have an accompanying motion to permit same).

  • 3/27/13 - Common Law Retaining Lien - Amendment to RPC1.16 (d) - The Supreme Court has amended RPC 1.16 (d) to prohibit use of the common law retaining lien on clients’ files. The amendment is effective April 1, 2013. This lien applies to all property, papers, and other material in the attorney’s possession during representation of a client.

  • 3/19/13 - Right to a Lawyer Often Eludes the Poor (from The New York Times)

  • 3/15/13 - In the Matter of the Letter Decision of the Committee on Attorney Advertising - The Supreme Court has amended RPC 7.5 to permit a law firm trade name so long as it describes the nature of the legal practice in terms that are accurate, descriptive, and informative, but not misleading, comparative, or suggestive of the ability to obtain results. The trade name must be accompanied by the name of the attorney responsible for the management of the organization. The amended rule will not be become effective until after a special committee considers various aspects of the use of trade names, and the Court reviews and acts on the committee’s recommendations. In amending the rule and general policy, the Court nevertheless rejected the trade name of the petitioner – Alpha Center for Divorce Mediation – because “alpha” is a confusing and superlative term.

 
 
 
 
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