Board of Trustees Report January 2022

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Report of the NJSBA Board of Trustees
January 2022 

Note: This does not constitute official minutes.  

Fee-shifting retainer agreements: The Board made nine specific comments about proposals in a Court report related to fee-shifting retainer agreements.  

In response to Advisory Committee on Professional Ethics' recommendation for explicit disclosure of identifiable fees or costs and oral review of such provisions, the NJSBA urged reconsideration of the oral review provision. “This new requirement would constitute a significant and unjustified departure from current contract law and would raise potential statute of fraud issues,” said the NJSBA in its letter.   

The ACPE recommended that estimated fees and costs and a range of value of the case be set forth in the initiation of representation, to which the NJSBA cautioned could lead to a multitude of issues including the impossibility of such a mandate due to the number of variables in each case; the unpredictability of costs and case values at or near the onset of the matter; and the implicit promise an attorney may be forced to make of the outcome of a case.   

With respect to keeping clients apprised of rising costs and fees and requiring informed consent when a client’s fees and costs will likely exceed a client’s recovery, the NJSBA agreed that a continuing obligation to keep a client reasonably informed of fees and costs is consistent with a lawyer’s obligation under the Rules of Professional Conduct. However, it urged the ACPE to consider letting attorneys use their best judgment and discretion about the specific information that is necessary to meet their obligations to communicate with a client to ensure that the client can make informed decisions about the case.  

Government affairs: The Board supported A-1978 (Mukherji), which would provide that a defendant who participated in a ­diversion program for certain marijuana offenses on prior occasion may again participate under certain circumstances. And the trustees supported S-660 (Oroho) which would establish that “100% disabled veterans” are not required to submit to the Motor Vehicle Commission certain documentation to renew parking privileges. 

Pro bono representation: The Board also supported a Court proposal, but with adjustments, to allow some law students to appear pro bono in tax court in certain instances and with attorney supervision. The NJSBA recommended the proposal define law student as someone who has completed one-third of their course requirement for graduation and include law graduates and a role for a student’s law school. 

“The NJSBA applauds the efforts of the Court to expand access to legal assistance at all levels, while providing pro bono opportunities for law students early in their careers. The proposal will also introduce law students to one of the many ways they can give back from their first days in the profession,” NJSBA President Domenick Carmagnola wrote in the letter.  

The Board recommended that a separate Court proposal to allow out-of-state attorneys to provide pro bono legal services to New Jersey clients be further developed before it is adopted. In a letter to the Judiciary, the NJSBA said it did have significant concerns about how a proposed amendment to a rule that would permit attorneys not licensed in New Jersey to provide pro bono legal services would be structured and whether it would provide the anticipated benefit to litigants. 

Vacancies filled: The Board filled a pair of vacancies, which included swearing in John Macce as a Hunterdon County trustee on the board. Macce, a founder of Macce & Cresti in Clinton, filled a vacancy created when Diana Fredericks resigned. The Board also approved Michael G. Donahue III, managing shareholder of Stark & Stark in Princeton, to fill a vacancy on the NJSBA Nominating Committee. 

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