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SUPREME COURT AD HOC COMMITTEE

ON PRO BONO ASSIGNMENTS

FINAL REPORT TO THE

SUPREME COURT

November 23, 1998


The Supreme Court AdHoc Committee

on Pro Bono Assignments

 

Committee Members

Eugene D. Serpentelli, A.J.S.C., Committee Chair

Maritza D. Berdote, Esq., Hispanic Bar Association of New Jersey

Dennis L. Bliss, Esq., Assistant Director, Municipal Court Services Division, AOC

Richard M. Centenni, Trial Court Administrator, Passaic Vicinage 

Mary E. Coogan, Chair, New Jersey State Bar Association=s Pro Bono Committee

Dante DiPirro, Esq., Deputy Attorney General, Litigation, Division of Law

Evan W. Jahos, Esq.

Dale E. Jones, Esq., Assistant Public Defender, Office of the Public Defender

Marilyn L. Kline, Esq., President, Association of County Bar Presidents

Connie McGhee, Esq., President, Garden State Bar Association 

R. Kevin McGrory, P.J.M.C., Chair, Conference of Presiding Judges-Municipal Courts 

Melvin D. Miller, Jr., Esq., President, Legal Services of New Jersey, Inc.

Ellen O=Connell, Esq., New Jersey State Bar Association

William J. O=Shaughnessy, Esq.

Robert E. Ramsey, Esq.

Reginald Stanton, A.J.S.C., Chair, Conference of Assignment Judges

Ronald J. Freeman, Esq., Former Committee Member 

Committee Staff

Steven A. Somogyi, Municipal Court Services Division, AOC 


CONTENTS

Page

I.Introduction.................................................................................................................. 

II.Historical Setting........................................................................................................ 

III.Findings...................................................................................................................... 

IV.Recommendations.................................................................................................. 

V.Conclusion and Summary.................................................................................... 

 

APPENDICES
 

A.Committee Charges

B.Municipal Public Defender Act (P.L. 1997, c. 256)

C.Executive Summary, 1991 Report of the Supreme Court Committee on Court Appointments of Fiduciaries, Counsel and Experts

D.Madden v. Delran, 126 N.J. 591 (1992)

E.Executive Summary, 1993 Report of the Ad Hoc Committee to Implement Madden v. Delran

F.1995 Report of the Supreme Court Committee on Court Appointments of Fiduciaries

G.Survey Results and Methodologies

H.1998 Exemption Categories and Pro Bono Counsel Assignment Questionnaire

I.Proposed 1999 Exemption Categories

J.Summary of Suggestions Received from Various Sources to Revise the Current Exemption Categories


I.Introduction
Providing a wide variety of voluntary pro bono legal services to the poor has been a proud tradition among lawyers since the earliest days of the profession.In addition, courts have long required some form of pro bono services by lawyers, and since February, 1993, practicing attorneys have been providing certain mandatory pro bono services to indigent defendants facing consequences of magnitude, pursuant to formal guidelines established by the Supreme Court in Madden v. Delran, 126 N.J. 591 (1992) (hereinafter referred to as Madden).In addition to handling the Madden pro bono matters, many attorneys also routinely serve without compensation to support court and other programs, pursuant to procedures developed by the Judiciary, various special Supreme Court Committees, Bar Associations and other public service groups.In providing those services over the years, individual members of the Bar have consistently made significant contributions to improving the administration of justice in New Jersey.However, the ability of the Bar to continue to provide those benefits has become increasingly challenging, because of a rise in the volume and complexity of pro bono matters. 


Therefore, in 1997, the Chief Justice appointed the Supreme Court Ad Hoc Committee on Pro Bono Assignments to be chaired by Eugene D. Serpentelli, A.J.S.C. (hereinafter referred to as the Committee[1]) in response to a request from the New Jersey State Bar Association and other interested parties to reexamine and improve the current Madden assignment system.Specifically, the Committee was charged by the Supreme Court to: 
(1)develop a means of measuring pro bono service by attorneys;

(2)review the adequacy and scope of the current pro bono assignment exemption categories, including the Assignment Judges= discretion to grant excuses;

(3)review the relationship between pro bono assignments for complex and difficult matters (i.e., terminations of parental rights and domestic violence cases) to other pro bono assignments, including the desirability of assignment credits;

(4)review the way fee generating assignments and pro bono assignments are made and consider how best to coordinate assignments, as appropriate;

(5)analyze whether there is a disproportionate burden on attorneys assigned in municipal courts or in other types of pro bono services;

(6)consider whether to recommend that certain legal services be provided by the state; and

(7)address any other aspect of pro bono assignments that the Committee believes warrants study and will benefit the Judiciary and the Bar while continuing to further New Jersey=s tradition of pro bono services to the poor. 


TheCommittee held its organizational meeting on February 19, 1997.Its initial focus was on pro bono assignments in both the Superior[2] and municipal courts.That focus, however, changed as a result of the enactment of the Municipal Public Defender Act (P.L. 1997, c. 256) on September 23, 1997, which became fully effective on March 22, 1998.That legislation, attached as Appendix B, requires the appointment of a municipal public defender in every municipal court to represent indigent defendants facing a consequence of magnitude.The Act further requires that if there is a vacancy in the office of the municipal public defender, or the public defender is unavailable or conflicted, the municipal court may appoint a qualified attorney, who is entitled to compensation, to represent an indigent defendant.Municipalities may enact ordinances to fund the municipal court public defender (including salary, fees and ancillary defense costs) through a waivable defendant application fee of up to $200.In the absence of an ordinance, assigned defense counsel are entitled to compensation at the same rate as attorneys hired by the Office of the Public Defender in conflict cases.Therefore,this legislation eliminates all municipal court pro bono counsel assignments and replaces them with fee generating counsel assignments.As a result, the Committee shifted its focus to concentrate on the assignment of Superior Court pro bono and fee generating matters. 
What follows are:the Historical Setting (Section II), the Committee=s Findings (Section III), the Committee=s Recommendations (Section IV) and a Conclusion and Summary (Section V), as they relate to the Superior Court pro bono and fee generating issues.


II. Historical Setting
Prior to presenting the Committee=s recommendations, the Committee believes it desirable to set forth the background of the present pro bono assignment system.This is especially important since, over the past decade or so, a landmark decision and the work of other Committees have helped shape the present system by addressing some of the same issues involved in this report.

1.The 1991 Report of the Supreme Court Committee on Court Appointments of Fiduciaries, Counsel and Experts

The first in-depth review of the pro bono counsel assignment process was conducted by the Supreme Court Committee on Court Appointments of Fiduciaries, Counsel and Experts (hereinafter referred to as the Serpentelli Committee).A copy of the Executive Summary of the Serpentelli Committee Report is attached as Appendix C.In 1986, former Chief Justice Robert N. Wilentz established this Committee and charged it with (1) reviewing all types of court appointments in both the municipal and Superior Courts, and (2) developing practicable and equitable appointment procedures for statewide use.[3] The Court also requested that the Committee consider the following issues when making its recommendations:


$the need to avoid even the appearance of unfairness in the appointment process;
$the balancing of fee and non-fee appointments to a particular attorney or firm;
$the preservation of judicial discretion;

$the desirability of involving the Bar in the appointment process;

$the need to institute a reporting system to track court appointments; and

$the present viability of Directive #4-69 (the George Warren Directive).

Central to the work of the Committee is the Serpentelli Committee=s review of the pro bono and fee generating assignment process.[4]In its final Report, the Serpentelli Committee made a number of recommendations concerning the assignment of both pro bono and fee generating matters within the municipal and Superior Courts.Specifically, it was recommended that one system be established for the assignment of these matters, with each appointment to a non-fee generating case being balanced,insofar as possible, against a subsequent appointment to a fee generating case.


To help implement the above recommendation, the Serpentelli Committee suggested that a list be maintained by each Assignment Judge for the specific purpose of making pro bono and fee generating assignments.Attorneys would be placed ona county list either according to their county of residence or the county where they maintained their bona fide office for the practice of law.All assignments from the list were to be made in accordance with an alphabetical rotation, thereby ensuring that all eligible attorneys in that county would share equally in the responsibility for handling these matters.The Committee further recommended thatjudges be given limited discretion to deviate from the strict alphabetical rotation system, where good cause could be demonstrated.
Two additional recommendations made by the Serpentelli Committee are relevant.Specifically, the Committee proposed that: (1) there be local monitoring and tracking of all court appointments in order to avoid any appearance of impropriety or imbalance in the appointment system; and (2) regional training be instituted to instruct appointed counsel on how best to fulfill their duties.

2.The 1992 Decision of the Supreme Court in Madden v. Delran

In the Madden opinion, attached as Appendix D, the Supreme Court addressed the issue of whether it had the authority to require attorneys, without compensation, to represent municipal court defendants too poor to pay for legal services.Specifically at issue was whether compulsory pro bono service:(1) constitutes a taking of private property without just compensation; (2) is unduly burdensome; (3) violates an attorney=s (or firm=s) equal protection rights; (4) constitutes involuntary servitude; or (5) fails to insure an indigent defendant=s effective assistance of competent counsel.


The Court found no reason to invalidate the pro bono counsel assignment system on the basis of any of the arguments raised.Moreover, the Court, quoting from its earlier decision in State v. Rush, 46 N.J. 399, 408 (1966), stated that A. . . the duty to defend the poor is a professional obligation rationally incidental to the right accorded a small segment of the citizenry to practice law.@Madden at 598.The Court further stated that, A. . . the bar, which has shouldered the sometimes heavy burden of what is clearly an obligation of the public, an obligation imposed on the State constitutionally . . . will have to continue to bear it, as it has borne so many others for so many years.@Id. at 594-95.
However, even though the Court did not invalidate the assignment system in use at that time, it found the system to be unacceptable, since it had the potential, at least in some counties, of unduly burdening a small number of attorneys.The Court further indicated that it was not willing to order other branches of government to pay for the services of assigned counsel.Specifically, the Court wrote that if it took the step of ordering another branch of government to shoulder this financial obligation, A. . . the damage done to the Judiciary and to the relationship among the branches of government would far exceed the damage done by this relatively inefficient system.@Id. at 608.The Court, while recognizing that the assignment system in place at that time was unacceptable, sought to make the system more universally equitable for all attorneys.As a result, the Court determined that:


Henceforth, counsel shall be assigned in each vicinage strictly in accordance with the mandate of the Rule [current R. 3:4-2]: a list shall be prepared by the Assignment Judge for each vicinage that includes every attorney licensed to practice in this state whose primary office is in that vicinage.Assignment by any municipal court for pro bono representation of indigent defendants constitutionally entitled to such representation shall be strictly in accordance with that listing, in alphabetical order. 

Id. at 606.

3.The 1993 Report of the Ad Hoc Committee to Implement Madden v. Delran

As a result of the 1992 Madden decision, the Judiciary was required to make all municipal court pro bono counsel assignments strictly in accordance with the Supreme Court=s direction.To assist in the implementation of the Madden decision, the Ad HocCommittee to Implement Madden v. Delran was established.That Committee=s Report proposed uniform procedures in three areas: (1) the determination of indigency in municipal courts; (2) the assignment of pro bono counsel in municipal courts; and (3) the creation of a uniform automated pro bono assignment computer system.Since that report, the procedures for establishing indigency have been embodied in R. 7:3-2(b) of the Comprehensive Revision to Part VII of the Rules, that became effective February 1, 1998.The procedures for the assignment of counsel, including a description of the current procedures for excusals, exemptions and the design of the statewide computer system, are summarized in the Executive Summary of the Committee=s Report, which is attached as Appendix E.


4.The 1995 Report of the Supreme Court Committee on Court Appointments of Fiduciaries
While the Supreme Court generally approved of the recommendations of the Serpentelli Committee and the implementation strategies of the Ad Hoc Committee to Implement Madden v. Delran, it noted that additional work was needed regarding the issue of court appointment of fiduciaries.As a result, the Supreme Court Committee on Court Appointments of Fiduciaries (hereinafter referred to as the Beglin Committee) was established for the purpose of examining all types of fiduciary appointments and developing standard procedures that would be both equitable and practicable to assist courts in making and monitoring such appointments.The Beglin Committee was asked to build upon the earlier work of the Serpentelli Committee and the Judiciary-Surrogates Liaison Committee, which had previously conducted an in-depth examination of the handling of guardianships, incompetents and conservatorships. 

The recommendations of the Beglin Committee most pertinent to the work of the Committee are as follows:

$Judges should have the flexibility to appoint individuals with the requisite expertise to handle the matter.

$Attorney appointments should be made from a special list, which should be developed as a result of a general solicitation from the County Bar Association.

$Special pro bono credit should be given to attorneys serving in termination of parental rights matters due to the complexity and inordinate investment of time normally required to handle these matters.


$Appropriate training materials should be provided by the court to all guardians at the time of the appointment.
$Data should be maintained on the nature of every fiduciary appointment and the amount of any fee allowed.This information should be provided regularly to the Bar.

The Beglin Committee=s Report is attached as Appendix F. 

Since the Madden decision and implementation of the related procedures, questions have been raised regarding the perceived fairness of the assignment system.Additionally, the present pro bono counsel assignment system (especially prior to the enactment of the Municipal Public Defender Act ) had become even more burdensome to the Bar than it had been prior to Madden.Anecdotally, members of the Bar and others assert that there has been a drastic increase in both the number and types of pro bono matters to which attorneys are being assigned in the Superior Court.[5]Furthermore, in at least some counties, assignments are not being made according to the strict alphabetical rotation, as required under Madden for municipal court appointments.

As a result of the foregoing, the Chief Justice charged the Committee with reviewing the counsel assignment process and making recommendations to improve that process in order to enhance the administration of justice in New Jersey.


III.Findings
A.General Findings:

The Committee finds, as a general matter, that the obligation to provide counsel to indigent defendants facing a consequence of magnitude should be the responsibility of the State - not members of the Bar.As a result, the Committee recommends that the Governor and Legislature be apprised of the need to provide funding support for government sponsored legal services.


In the absence of sufficient government funding to handle these matters, the Committee finds that there is a need for greater discretion to be given to Assignment Judges to allow them to obtain necessary pro bono services to meet the particular needs of each county.In the exercise of this discretion, however, Assignment Judges should be encouraged, where applicable, to solicit feedback from the local Bar on issues impacting pro bono counsel assignments.The Committee recognizes that this call for local initiative in the development of pro bono and fee generating assignment systems is at variance conceptually with the Supreme Court=s requirements under Madden v. Delran, and with the ongoing movement toward unification of statewide practices, as reflected in the recently released report of the Strategic Planning Committee.However, the Committee believes that the character of pro bono representation, to wit, a voluntary process of filling the void left by government=s failure to enter this arena, justifies the latitude that is given to address this response to what is admittedly a statewide problem.If attorneys must be asked to provide free representation which more appropriately should be paid for by the government, then they should be granted the greatest degree of flexibility in helping to devise a response to this need, consistent with satisfaction of the constitutional mandate that representation be provided.
Additionally, the Committee believes that voluntary pro bono assignments are preferable to mandated pro bono services.The establishment of a voluntary assignment system, particularly one where attorneys handle cases in their area of expertise, not only better serves the interests of the Bar, but also the interests of the public and the Judiciary.A voluntary system can be expected to result in more effective representation, which in turn should lead to improving the administration of justice. 

Finally, to the extent that the voluntary system cannot fulfill the need for pro bono services,counties should be required to assign those matters in an alphabetical rotation, from a computerized system developed by the Administrative Office of the Courts.Inherent in the system should be the ability to maintain and generate reliable information regarding counsel assignments.The Madden computer system, which is utilized in virtually every county, is now limited in terms of the information it can generate regarding the counsel assignment process.The availability of adequate information is important for a number of reasons, not the least of which is the continued oversight and review of the pro bono assignment process.


B.Specific Findings:
The Supreme Court specifically charged the Committee with reexamining and improving the current pro bono and fee generating assignment system.Additionally, the Court asked the Committee to respond to and make recommendations on seven specific charges.In considering those charges, the Committee finds that:

1.There is a need for all counties to continue to use the computer system developed by the Administrative Office of the Courts to assign both pro bono and fee generating matters.

2.The current process of administering exemptions and excusals should be continued.

3.The current exemption categories should be revised for 1999.

4.Assignment Judges, with input from their respective County Bar Associations, should grant additional offsetting credit to those handling complex or difficult matters.


5.Fee generating cases should be assigned in alphabetical rotation and, where practical, only to those attorneys who have already handled pro bono assignments.
6.Due to the pending development of a statistical database, analysis of any disproportionate burdens resulting from pro bono service assignments should be deferred pending adoption of the Committee=s recommendation to Charge 1 (see page 26).

7.The Judiciary should make the Executive and Legislative Branches aware of the need to appropriate sufficient funding for government sponsored Legal Services, as well as other programs, that provide assigned pro bono legal services in Superior Court matters. 

8.There is a need to prioritize the limited State or other resources that become available for legal services that are now being provided on a pro bono basis.

9.There is a need to increase the range of voluntary programs to handle Superior Court pro bono matters requiring special expertise as an alternative to the current mandatory system.

10.The Assignment Judges should be authorized to utilize Abuy-out@ programs as an alternate means for attorneys to meet their pro bono obligations.


11.Because of the increase in the types of matters assigned to pro bono attorneys, the ongoing input of the Bar should be obtained to help insure that the best means of providing representation are identified.

IV.Recommendations

The Committee offers the following recommendations in response to the Committee=s charges to help improve the system of assigning Superior Court pro bono matters.The recommendations are intended to increase the fairness, efficiency and effectiveness of the present pro bono counsel assignment system and to make it more responsive to the needs of the public, the Judiciary and the Bar.The Committee=s recommendations (organized in the order of the corresponding Committee charges) are as follows:

1.Committee Charge:

Develop a Means of Measuring Pro Bono Service by Attorneys. 

Committee Recommendation:


The Committee recommends that all counties be required to use the computer system developed by the Administrative Office of the Courts to assign both pro bono and fee generating matters.Further, the computer system should, at a minimum, be able to track basic information regarding the assignment process, including the name of the attorney assigned to handle a particular matter, the court where the matter was heard and the case type.
The Committee recognizes the importance of developing a dependable means to gather and maintain accurate data regarding the number and types of pro bono and fee generating assignments made annually by each county.The Committee further recognizes that the necessary data collection safeguards were not programmed into the current computerized assignment system, thereby making it impossible to generate reliable assignment information.[6]Furthermore, as discussed in Appendix G, most of the vicinages do not routinely keep historical data on the number and types of pro bono and fee generating assignments. 


As a result, the Committee recommends, to the extent the voluntary system hereinafter discussed is inadequate to fulfill the need for pro bono services, that all counties should be required to assign pro bono and fee generating matters from the computerized system developed by the Administrative Office of the Courts.Further, the system used to assign these matters should be programmed to track basic assignment information, including the attorney=s name, the nature of the case (i.e., termination of parental rights, domestic violence contempt, etc.) and the court where the matter was heard.In addition, vicinages should be encouraged to collect, whenever practical, specific case information regarding the amount of time an attorney expends to handle a pro bono or fee generating assignment.However, the Committee understands the potential administrative burden that collecting this information could place on vicinage staff and participating attorneys.As a result, this additional information should only be collected where practical.
2.Committee Charge:

Review the Adequacy and Scope of the Current Pro Bono Assignment Exemption Categories, including the Assignment Judges= Discretion to Grant Excuses.

Committee Recommendations:

A.The process whereby the Supreme Court annually reviews and modifies, as needed, the various exemptions from pro bono assignments should be continued.It is further recommended that Assignment Judges should continue to have discretion to excuse temporarily attorneys from pro bono assignments where good cause is shown.


The Supreme Court reviews, on an annual basis, the various exemptions from pro bono assignments and makes modifications to the exemption categories, as deemed necessary.[7]It is the recommendation of the Committee that this process be continued.

In guidance issued to the Assignment Judges, the Supreme Court has recognized that there are instances where an eligible attorney should be temporarily excused, often for compelling personal reasons, from handling an assignment.Data provided to the Committee by the Administrative Office of the Courts indicate that Assignment Judges judiciously use their authority to excuse attorneys from pro bono assignments.Based on a one-day assessment, the data revealed that only 359 attorneys statewide, or less than 1% of all eligible attorneys, were designated as being excused from receiving an assignment.[8]As a result of the foregoing, the Committee supports the continued use of this practice and believes that Assignment Judges should be permitted to temporarily excuse attorneys from assignments in those instances where good cause is shown.Moreover, the duration of the excusal, to be decided on a case-by-case basis, should also remain within the discretion of each Assignment Judge. 
B.It is recommended that the Supreme Court revise the 1998 Exemption Categories for use during 1999 in accordance with the proposed listing contained in Appendix I.

The Supreme Court last modified the Madden v. Delran Pro Bono Exemption Categories in 1996.In 1997, and then again in 1998, the Supreme Court approved of the continuation of the previous year=s Exemption Categories, without change, pending the final report and recommendations of this Committee.

Attached, as Appendix I, are the Committee=s recommendations to the Supreme Court regarding the Madden v. DelranPro Bono Exemption Categories that should be approved for 1999.The Committee=s recommendations are based on a review of the current Exemption Categories, as well as a review of the requests that have been received by the Supreme Court and the Administrative Office of the Courts since the Exemption Categories were last revised.


There has been an ongoing debate since the first Exemption Categories were announced in 1993. Generally speaking, there are three broad categories of attorneys who are exempt from receiving pro bono assignments: (1) attorneys who work for the government, including attorneys who are prohibited from engaging in the private practice of law as a result of a statute, court rule, administrative directive, Executive Order, published Ethics Code or Opinion (Exemption Categories 81 through 85); (2) attorneys who are prohibited from engaging in the private practice of law because they do not maintain a bona fide office for the practice of law under R. 1:21-1(d) (Exemption Category 86); and (3) attorneys who are exempt as a result of specific pro bono services they have performed (Exemption Categories 87 through 89).[9]

It is the consensus of the Committee that the three general categories of exemptions listed above should be continued in their present form, subject to the Supreme Court=s annual review of suggestions received from the Bar and other sources. It should be noted that the Committee, in deciding to recommend that the Court approve of certain additional exemption categories (please see Appendix I), focused on the amount and type of pro bono service currently being performed by those attorneys. Except for the limited recommended changes, the Committee is satisfied that the annual reexamination of the Exemption Categories, by the Supreme Court, as recommended under Charge 2, Recommendation A, will help to insure that the Exemption Categories remain flexible to the extent necessary to be fair to all attorneys.
3.Committee Charge:

Review the Relationship Between Pro Bono Assignments for Complex and Difficult Matters (i.e., Termination of Parental Rights and Domestic Violence Cases) to Other Pro Bono Assignments, Including the Desirability of Assignment Credits.

Committee Recommendation:

It is recommended that Assignment Judges, based on input from their respective County Bar Associations, be authorized to grant additional offsetting credit for time spent by attorneys assigned to handle complex or difficult matters.


The Committee recognizes that not all pro bono counsel assignments take the same amount of time or have the same level of complexity.A termination of parental rights case, for example, is usually more complicated and takes longer to complete than a domestic violence contempt.As a result, the Committee recommends that Assignment Judges be authorized to determine, on a case-by-case basis, thatadditional offsetting credit be given to an attorney who has handled a case considered to have been especially complicated or time consuming.
4.Committee Charge:

Review the Way Fee Generating Assignments and Pro Bono Assignments are Made and Consider How Best to Coordinate Assignments, as Appropriate.

Committee Recommendation:

Fee generating cases should be assigned, where practical, only to those attorneys who have already handled a pro bono assignment, regardless of the type of assignment system in place (i.e., voluntary or mandatory).Further, fee generating assignments should be made, where appropriate, according to a strict, alphabetical rotation.


Data collected by, or made available to, the Committee reveal that variations currently exist between counties in terms of how fee generating cases are assigned.Some counties utilize the statewide computer system to assign these matters, based on a strict alphabetical rotation.In others, it has been reported that manually maintained lists, often with limited numbers of attorneys, are kept specifically for assigning fee generating cases.Attorney names appearing on these manual lists may be chosen for any number of reasons, including their knowledge of and experience in handling certain types of cases.The Committee also considered a concern expressed by the Supreme Court Committee on Women in the Courts that, based on one of its surveys, women appear not to fare as well as men in the distribution of fee generating assignments.

The Committee believes that every attorney eligible for a pro bono assignment should also be eligible to receive, without regard to any extraneous consideration, a corresponding fee generating assignment.The Committee is of the opinion that fee generating assignments should be viewed as a way to reward attorneys for handling pro bono matters.Therefore, it recommends that fee generating assignments be tied, wherever practical, to the completion of a pro bono assignment, regardless of whether the assignment is made via a mandatory or voluntary assignment process.[10]This link to pro bono assignments should help to reduce any inequities that may exist in the assignment of fee generating cases.However, the Committee recognizes that certain cases may require selection of an attorney with expertise in a specific area of law to handle the matter.In that case, Assignment Judges should have the discretion to deviate from the alphabetical rotation to assign fee generating matters, but only in the rare instances where justice dictates and then always attempting to insure that such appointments will not be perceived as being motivated by favoritism.
With regard to the protocol that should be followed when assigning fee generating matters, the Committee recommends that Assignment Judges be required to utilize one of the following two methods.The first is to assign fee generating matters via the computerized assignment system authorized by the Administrative Office of the Courts, as discussed under the Recommendation for Charge 1.


The second approach is to have each Assignment Judge, preferably in conjunction with the County Bar Association, develop a list of all attorneys in the county who have formally requested to receive fee generating assignments.A general mailing or other process could be used to determine the attorneys who want to be included on the list. It is anticipated that this approach may increase the efficiency of the assignment process by reducing the number of incidents where an attorney declines to accept a fee generating assignment.
Moreover, the Committee believes that attorneys who are exempt from receiving pro bono assignments because of other pro bono services they are currently performing should be considered eligible to receive fee generating assignments.This means that attorneys who are exempt from receiving pro bono assignments under Exemption Codes 87, 88 and 89 should be deemed eligible to receive fee generating assignments.Conversely, attorneys who are exempt based on Exemption Categories 81 through 86 should not be considered eligible to receive a fee generating assignment.

5.Committee Charge:

Analyze Whether There is a Disproportionate Burden on Attorneys Assigned in Municipal Courts or in Other Types of Pro Bono Services.

Committee Recommendation:


Due to the limited data available to the Committee with regard to the number and types of pro bono assignments, it is the recommendation of the Committee that the analysis in response to this charge be reexamined if the recommendation contained in Charge 1 is adopted, which requires all vicinages to use a computer system that will generate reliable statistics concerning pro bono assignments.
As a result of the passage of the Municipal Public Defender Legislation (P.L. 1997, c. 256), which effectively eliminated Municipal Court pro bono assignments, the Committee focused its efforts on Superior Court counsel assignment matters.[11]The Committee considered whether disparities were occurring within the Superior Court with regard to pro bono assignments.However, as stated in the Recommendation for Charge 1, and as discussed in detail in Appendix G, the available data regarding the number and types of pro bono and fee generating assignments is limited and its accuracy could be questioned.Therefore, the Committee has concluded that no formal recommendation can be made at this time with regard to the charge of analyzing whether there is a disproportionate burden on attorneys assigned to handle pro bono matters.However, the Committee recognizes the importance of identifying and eliminating, where feasible, disparity within the pro bono assignment system.As a result, the Committee believes that once all vicinages begin to use a computerized system that can generate reliable pro bono and fee generating assignment information, as recommended under Charge 1, this Charge should be revisited.

Nevertheless, the Committee did measure one issue related to disproportionate assignments, namely, the extent to which bi-lingual attorneys are being unduly burdened with Madden assignments.Some Committee members suggested that there was a disparity in assignments, particularly with respect to Spanish speaking attorneys.The first survey distributed by the Committee to the Trial Court Administrators[12] was intended to help determine the degree to which this might be occurring.However, the responses did not support this contention.The Trial Court Administrators did not view this as being a problem.However, while no evidence of any disproportionate treatment was found, the Committee suggests that at a minimum, Assignment Judges be made aware of this possibility so that, if disparities are occurring, they can be properly monitored and corrected. 
6.Committee Charge:

Consider Whether to Recommend that Certain Legal Services be Provided by the State.

Committee Recommendations:


A.It is recommended that the Judiciary make the Executive and Legislative Branches aware of the need to appropriate sufficient funding for Government sponsored Legal Services and other programs to provide legal services in connection with Superior Court matters currently being assigned to pro bono private attorneys. 
The Committee recognizes that the Supreme Court, in establishing the present pro bono assignment system, apparently did so as an interim step.In Madden, the Supreme Court stated that the defense of defendants too poor to pay for counsel is clearly an obligation of the State and,it A. . . cannot forever accept a system so clearly inefficient, historically unfair and potentially unconstitutional.@Madden at 595-96.In that opinion, the Court expressly stayed its hand in mandating that the government pay attorneys who are assigned by the municipal court to represent defendants too poor to pay for counsel only because A. . . other branches of government, state, county and local, are equally able to address the problem, equally committed to meeting the constitutional obligation, and equally concerned with the unfairness that inevitably affects the present system.@Id. at 596.


With the enactment of the Municipal Public Defender Legislation, the Governor and the Legislature partially respondedto the Supreme Court=s entreaty by mandating that all municipal courts employ a municipal public defender or pay for the services of ad hoc municipal public defenders, all through a discretionary, waivable defendant application fee of up to $200.However, as noted previously in this Report, that legislation leaves the issue unresolved in Superior Court pro bono matters.Therefore, the Committee reasserts the Supreme Court=s position that the obligation to provide counsel to indigent defendants facing a consequence of magnitudeshould, first and foremost, be the responsibility of the State and not that of the privateBar.Therefore, the Committee recommends that the Judiciary apprise the Governor and the Legislature of the need to appropriate sufficient funds to enable government sponsored legal services and other programs to satisfy that need.
Moreover, central to the appropriation of funds will be the ready availability of reliable information regarding the number and types of counsel assignments made by each county.Therefore, the adoption and implementation of the Recommendation for Charge 1, that all counties utilize a computer system developed by the Administrative Office of the Courts, becomes an even more important factor in the future of the assignment process.


B.The Committee recommends that if only limited State or other resources become available to fund matters currently handled by pro bono attorneys, those monies should first be used to fund programs that handle the more difficult and complex matters, such as termination of parental rights and domestic violence contempt cases.Further, the feasibility of obtaining funding to establish county-based attorneys to provide representation in these types of complex matters, should be explored. 
As discussed in the first Recommendation of Charge 3, not all pro bono counsel assignments take the same amount of time to complete or possess the same level of complexity.As a result, if only limited State or other resources become available to fund selected matters that would normally be assigned to pro bono attorneys, the Committee recommends that these monies first be used to fund assignment of counsel in connection with the more complicated and time consuming matters, including termination of parental rights and domestic violence contempt cases.This is particularly important as a result of the recent enactment by the Federal Government of the Adoption and Safe Families Act of 1997 (P.L. 105-89), which has the potential to increase the number of termination of parental rights matters assigned to pro bono attorneys.


One promising development that has come to the attention of the Committee concerns the policy by the Office of the Public Guardian once again to begin accepting new cases.For the past few years, private attorneys have been assigned matters that traditionally would have been handled by the Office of the Public Guardian (e.g., administering complicated estates, making sure that wards of the State receive adequate medical care, etc.).Although it is unknown whether that Office will be able to handle all referred matters, it is the Committee=s conclusion that any case handled by that Agency may better serve the public, the system and, most importantly, the parties involved.
The Committee further recommends that steps be taken to research the feasibility of obtaining funding for county-based attorneys to provide representation for these types of complex matters.If only limited resources become available, they should be prioritized to initially concentrate on the more difficult and time consuming matters, thereby easing the pro bono burdens being placed on the Bar.

7.Committee Charge:

Address any other Aspect of Pro Bono Assignments that the Committee Believes Warrants Study and Will Benefit the Judiciary and the Bar While Continuing to Further New Jersey=s Tradition of Pro Bono Services to the Poor. 


Committee Recommendations:
A.It is recommended that, where feasible, voluntary programs be established to assign attorneys to handle Superior Court pro bono matters as an alternative to the current mandatory system. Additionally, the voluntary programs should be designed to allow attorneys to handle cases in their area(s) of expertise.

The Committee believes that in the absence of public funding, voluntary pro bono services clearly are preferable to mandated pro bono services.The establishment of a voluntary system, particularly one where attorneys are matched to their area of expertise, potentially can be a more attractive andproductive option.Voluntary representation not only better serves the interests of the Bar, but also the interests of the public and the Judiciary.A voluntary system will allow attorneys to provide representation in the field in which they are most competent, thus providing more effective representation, which in turn should lead to improving the administration of justice.


Central to the establishment of any voluntary pro bono program is a strong commitment to that system from practicing attorneys in each locality and a recognition that the burden of pro bono representation may fall more heavily on fewer attorneys because the volunteerism will likely be restricted to the areas of expertise of a relatively small portion of the local Bar.Without that commitment, it would be unlikely that an effective voluntary program could be established or succeed. Therefore, the Committee proposes that Assignment Judges, with the involvement and support of the County Bar Associations, be authorized to establish and administer voluntary pro bono programs in each vicinage.
In those counties where the Assignment Judge determines that a voluntary pro bono program is either not practical or cannot, by itself, adequately handle the requisite number of pro bono assignments, the Committee recommends that a mandatory system be utilized in order to insure representation.If a mandatory system is adopted because of the inability to implement either partially or fully a voluntary system, then it is recommended that assignments be made, where practical, on a strict alphabetical rotation.In the event that an Assignment Judge elects to institute a type of hybrid system, whereby assignments are to be made through both a voluntary and mandatory assignment system, it is suggested that internal procedures be established by the Assignment Judge to insure that the names of attorneys being placed on the voluntary assignment list are not placed on the mandatory list. 


B.It is recommended that the Assignment Judge be authorized to utilize"buy-out" programs, in each county, for any attorney who is either not able to or does not wish to handle a pro bono matter.
The Committee recognizes the inherent difficulties sometimes associated with handling pro bono matters.There is a need to offer a more expansive "buy-out" program than that authorized by Madden[13] for those attorneys who either do not wish to handle a pro bono matter or are unable to do so, as a result of conflicts or other reasons.The Committee learned that some counties currently have formal Abuy-out@ programs in place.These programs, overseen by the County Bar Associations, reportedly work well.Therefore, the Committee recommends that each Assignment Judge be authorized to approve of a format for any buy-out programs for those attorneys who wish to be relieved of their pro bono responsibility, but who do not quality for relief based on either an exemption, lack of competence or an excusal.


The Committee believes that the type of buy-out program(s) established should be left to the discretion of each Assignment Judge.In that regard, Assignment Judges should be encouraged to consult with the local Bar Associations regarding the development and implementation of such programs.
The Committee takes no position as to the specific type of buy-out program.Options include:(1) formal programs administered by the Assignment Judge's office, County Bar Associations or other organizations that might involve, for example, an annual buy-out payment; or (2) informal programs where an attorney would be allowed to make his or her own arrangements, such as retaining another attorney to handle a matter.Additionally, it should be emphasized that no monies collected as a result of a buy-out program should be paid to either the Judiciary or to other branches of government.

However, consistent with Madden, the Committee believes that when an attorney assigned a pro bono matter contracts directly with another attorney to handle the case, the attorney initially assigned the case should retain full responsibility to insure that it is handled properly.However, with regard to those instances when an attorney participates in an Assignment Judge authorized buy-out program, full responsibility for the handling of the matter should be assumed by the program.


Finally, the Committee recognizes the importance of balancing the authority of the Assignment Judge to excuse attorneys[14] with the existence of a buy-out program. Thus, Assignment Judges should exercise cautiously their excusal authority with an eye to not undermine the effectiveness of any of the voluntary programs developed in concert with the Bar, particularly the buy-out program.
C.Since the Madden decision, the types of cases assigned to pro bono attorneys have increased.The Committee recommends that the Judiciary solicit input from the Bar, to the extent feasible, regarding the inclusion of new matters eligible for pro bono assignment. 

The Committee recognizes that pro bono service has the potential to place a burden on members of the Bar.The extent of that burden varies from county to county, depending on the number of assignments and the number of eligible pro bono attorneys.Information gathered by the Committee suggests that not only has the number of pro bono assignments increased in recent years, but also the types of cases to which attorneys are being assigned.As shown in Appendix G,[15] members of the Bar are being asked to handle many different types of Superior Courtpro bono matters.


Therefore, in balancing the Judiciary=s authority and responsibility to insure representation, where requested, with the potential burden placed on the Bar, it is recommended by the Committee that the Judiciary solicit Bar input, whenever feasible, regarding the inclusion of new matters eligible for pro bono assignment.

IV.Conclusion and Summary
In summary, the Committee concludes that Assignment Judges should be granted greater authority to tailor the pro bono assignment system to the particular needs of the Judiciary and the Bar in each county.While the Committee recognizes that this is inconsistent with the standardized protocol called for in the Madden decision,[16] it also believes that since Madden was decided, members of the Judiciary and the Bar have become more fully aware of and creative in responding to the issues surrounding pro bono counsel assignments.Thus, they are better able collaboratively to develop and implement effective programs with necessary local variation, while avoiding the kinds of statewide disparity that prompted the concerns addressed in the Madden decision.

Furthermore, if a volunteer system of pro bono service can be effectively implemented, either partially or fully, it will better address the justifiable concerns of the Bar, enhance the overall quality of representation and give true meaning to the pro bono principles B namely, attorneys freely giving of their time to help those in need of representation, without being mandated to do so.


The Committee further concludes that the current statewide computer system, annual attorney registration process, exemption procedures and excusal protocols, including the periodic reviews of each, should be preserved, subject to the recommendations contained herein and whatever other enhancements that may be found appropriate to: 1) expedite the system; 2) result in better tracking of the volume of pro bono and fee generating cases; and 3) encourage greater fairness in both types of assignments.
Respectfully submitted,

Eugene D. Serpentelli, A.J.S.C.

Chairman

Date:November 23,1998



[1] This reference has been selected to avoid confusion with the earlier Supreme Court Committee on Court Appointments of Fiduciaries, Counsel and Experts, also Chaired by Eugene D. Serpentelli, A.J.S.C., and commonly referred to by subsequent Committees and others as the ASerpentelli Committee@.The letter dated January 16, 1997 from Chief Justice Deborah T. Poritz establishing this Committee, is attached as Appendix A. 
[2]The types of Superior Court cases attorneys are routinely asked to handle pro bono vary from county to county.Appendix G (Exhibit 8) lists information, by county, regarding Superior Court pro bono matters assigned during 1996.The most common matters assigned during that time included Domestic Violence Contempt hearings, Termination of Parental Rights cases, Municipal Court Appeals, Guardianship matters and Parole Revocation hearings.Moreover, the Report of the Supreme Court Committee on Court Appointments of Fiduciaries, included as Appendix F, provides additional information regarding Superior Court appointments.
[3]It should be noted that, as with the present Committee, the Serpentelli Committee was not asked by the Court to address the issue of the substantive right to counsel, nor was the Committee requested to develop criteria to determine those circumstances which require the appointment of counsel.
[4]Many of the findings and recommendations contained in the Serpentelli Committee=s Report focused on the appointment of experts, which is beyond the scope of the Committee=s charge.Therefore, reference to those recommendations are not included in this summary.
[5]It should be noted that the Madden decision focused only on municipal court pro bono counsel assignments and was silent on the applicability of the opinion to Superior Court pro bono counsel assignments.
[6] Please refer to Appendix G for a discussion on the limitations associated with the Madden v. Delran Pro Bono Assignment system. 
[7]See Appendix H for the 1998 exemption categories.Please also refer to the discussion under Section B on page 20 concerning the proposed exemptions for 1999.The proposed exemptions for 1999 have been attached as Appendix I.
[8] Since excusals are of limited duration, ranging from as little as one day to upwards of a year, it was decided that the best way to accurately gauge their prevalence was to conduct a one-day assessment.Therefore, on March 14, 1997, Committee staff worked with staff from the Information Systems Division of the Administrative Office of the Courts to generate, by county, the number of excusals coded into the Madden computer system on that particular day.A county-by-county breakdown of the results can be found in Appendix G, Exhibit 1. 
[9]Please refer to Appendix G, Exhibit 1, for specific information regarding the number of attorneys, by county, who were exempt from receiving a pro bono counsel assignment.
[10]See discussion concerning the mandatory and voluntary assignment processes under Recommendation A to Charge 7 following.
[11]Please refer to the Introduction (pages 2-3) for a more detailed discussion on this subject.
[12]See Appendix G for a discussion of the various surveys and methodology used to gather data for the Committee=s consideration.
[13]In Madden, the Court held that attorneys who lack competence in a given area of municipal court practice may petition the municipal court judge to be permitted to hire another attorney to handle the matter.Madden at 608.
[14]Please refer to Recommendation A under Charge 2 for a detailed discussion on the Assignment Judges= authority to grant excuses. 
[15]Please refer to Exhibits 4, 7, 8, 10, 11 and 12 for information collected by the Committee regarding Superior Court pro bono assignments.
[16]It is also conceptually at variance with the unification of statewide practices reflected in the Report of the Strategic Planning Committee. 

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