Board of Trustees Report, January 15, 2021

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New Jersey State Bar Association
Board of Trustees Report
January 15, 2021

Note: This is a summary of the recent Board of Trustees meeting, which was held virtually due to the ongoing public health pandemic. It does not constitute official minutes.

Background screening for guardians: The NJSBA submitted comments on proposed rule changes that seek to ensure the protection of incapacitated adults from the risks of potential abuse, neglect, and financial exploitation by guardians. The Association recognized the laudable purpose of the proposal, but expressed concerns that the new certification and fingerprinting requirements could have a disparate impact on individuals with lower incomes. Further, the Association said the requirement to disclose all civil and criminal judgments is overly broad and will result in proposed guardians having to disclose information that is not germane to a determination of their qualifications. 

Right to Counsel Report and Recommendations: The Board accepted the Achieving Effective Representation in Right to Counsel Matters Report from the ad hoc Right to Counsel Committee. Former NJSBA President Evelyn Padin created the committee to address growing concerns about Madden assignments in matters where the Court has concluded indigent litigants are entitled to legal representation. The Trustees agreed to share its recommendations with the relevant groups, stakeholders, officials, agencies and organizations for discussion, analysis and comment, with an expectation of future recommendations being presented to the Board for specific action. 

The Report found the Madden system of random assignments does not always provide effective representation because it randomly assigns attorneys to matters irrespective of their practice area. Rather, a recommendation was made to abolish the Madden system in favor of alternatives that match counsel appropriately with the matter, regionalize assignments and urge the Legislature to fully fund the provision of effective representation in cases where there is a right to counsel. The recommendations include increasing compensation to pool attorneys within the Public Defender system and coordinating with non-profit providers. The Report also urged the Judiciary to apply assignments in a consistent way throughout the state and foster greater transparency in assignments and exemptions while the Madden system continues.

Amicus: The Board granted the Executive Committee authority to authorize amicus participation -- after review and recommendation by relevant groups within the NJSBA -- in State v. Vega-Larregui, the pending challenge to virtual grand juries that is now before the Supreme Court. 

American Bar Association: The Board received an update from former NJSBA President Karol Corbin Walker, who is the New Jersey delegate to the American Bar Association. Walker continued the tradition of meeting with the Association prior to the ABA’s signature events and she gave an overview of the issues the organization will tackle when it gathers for the Mid-Year Meeting in February. In a related development, the Trustees voted to support resolutions that will be considered at that meeting, including: 

•             10b, which would require that federal, state, local and territorial courts consider diversity for all appointments;

•             10e, which urges the adoption of the federal Daniel Anderl legislation to support judicial safety in light of the fatal attack on the home of Federal District Court Judge Esther Salas this summer. The measure urges Congress enact laws to prohibit the disclosure of personally identifiable information of active, senior, recalled, or retired federal judges, including magistrate judges, bankruptcy judges, administrative law judges, administrative judges, and immigration judges, and their immediate family who share their residence, including but not necessarily limited to home addresses or other personal contact or identifying information; and

•             106a, which encourages the use of pronouns consistent with a person’s gender identity within the legal profession and justice system, including in filed pleadings, during mediations and court proceedings, and within judicial opinions.

Government relations: The Board supported several pieces of pending legislation. The Association plans to reach out to the sponsors of the bills to provide feedback and suggestions from practitioners in the field. The measures are: 

A4616 Murphy/S2880 Beach, which would require residential psychiatric and long-term care facilities to provide certain financial information to facility residents and other individuals; 

New Jersey Law Revision Commission Report, which concerns changes to unemployment law statutes; and 

SB4711/HR8591, which is the federal Daniel Anderl Judicial Security and Privacy Act of 2020 that would prohibit the disclosure of personal information of former, active and retired judges and establish the crime and civil action remedy for disclosure of such information. The NJSBA supported the legislation, which is consistent with its support of the legislation on the state level, to protect the independence and integrity of the Judiciary.

Cybersecurity update: The Board received a cybersecurity briefing about the significant Solar Winds cyberattack and Microsoft hack that have wreaked havoc for hundreds of government agencies and businesses, including the New Jersey legal community. 

The Solar Winds attack is regarded by industry officials as a “nightmare scenario.” The software that was hacked is used to manage a wide range of informational technology platforms and functions. The attack allows spyware called “Teardrop” to access sensitive information, beginning as far back as 2019. While the focus of the attack was on large businesses and government agencies, almost everyone is likely to work or associate with an organization that was directly hit, state bar officials said. 

The Microsoft hack is reported as an attack on its platform by Russia. The hack extended far beyond the original reach to the general populous and the information it compromised extended to a wide range of transactions and files, including tax returns, GPS locations, court records, credit card information, company memos and legal records. 

The NJSBA has begun to see infections related to these events, primarily via incoming emails. The NJSBA has taken substantial steps to protect its records and has alerted members who have shown signs of being hacked.

To stay safe, it is important to:

•             Never trust free software and never reuse passwords;

•             Regularly update software and computers;

•             Scan all inbound and outbound traffic;

•             Monitor, detect and report security events and rare behavior; 

             Prohibit access to your resources from specific regions, and only allow access from countries where you have business; and 

             Have a good technology partner.