Board of Trustees Report, March 19, 2021

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New Jersey State Bar Association
Board of Trustees Report
March 19, 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.  
American Bar Association: American Bar Association President Patricia Lee Refo addressed the Board of Trustees on issues facing the ABA and the legal profession, including a substantial discussion on so-called regulatory sandbox issues. The ongoing public health pandemic and the societal fissures of systemic racism that have taken centerstage, have also required the profession to adapt. The work of lawyers has changed in important and fundamental ways. The organized bar is more important to our nation right now than maybe it has ever been, Refo said. Even though the waters are rough, the legal profession has done what it always has: roll up its sleeves and work to solve problems. On the topic of regulatory innovation, Refo said the American Bar Association supports the model rule provisions governing law firm ownership. However, as states are moving forward with alternative proposals to attempt to address the justice gap, the ABA will measure and evaluate the results to determine if there is a path to pursue in the future. Refo also discussed the upcoming ABA Day in Washington, the organization’s annual lobbying event on Capitol Hill, and that this year’s Law Day, on May 1, is an opportunity to educate the public about the vital importance of advancing the rule of law now.
Comments on court rule reports: The Board discussed the Judiciary's various committee reports and agreed to submit comments about recommendations. The Association believes it is important to contribute to the discussion of ensuring the court rules are clear, establish procedures that are fair to all parties, and advance the interests of and access to justice. Comments were submitted about proposals related to the rules of evidence; municipal court matters; family practice issues and proposals from the Committee on Diversity, Inclusion and Community Engagement.
In addition, the NJSBA submitted separate comments for two reports:
Child witnesses
The NJSBA said it appreciated the efforts of a Joint Committee and the Judiciary to ensure that court procedures are appropriately balanced to address the unique needs and perspective of children against the importance of ensuring truthful and competent testimony in court proceedings, yet it expressed grave concerns about the current proposal. The NJSBA was particularly concerned about the reaction of a child to an additional assessment when the child has already been significantly traumatized. An assessment inquiry is likely to invoke a sense of fear and lead to inaccurate responses and ineffective results, the NJSBA said. For these reasons, the NJSBA believes that no assessment of a child’s credibility is necessary. Children should, instead, always be permitted to testify if they are available, with the triers of fact being permitted to weigh the credibility of the testimony as they deem appropriate.
New model voir dire questions and updates to model civil and criminal jury charges
The NJSBA supported the laudable goal of enhancing juror impartiality through education, awareness and discussion of implicit bias, however said there are many questions about whether the proposed video, model voir dire questions and jury charge amendments will be able to achieve that goal. The NJSBA further urged the Judiciary to take additional steps to ensure that the trial court is able to fulfill its duty to “take all appropriate measures to ensure the fair and proper administration of a trial, including by searching out juror biases and seating an impartial jury.” Specifically, the Association said it believes that juror biographical questions should be updated, juror voir dire should be expanded, and peremptory challenges should affirmatively be kept intact. Finally, as the empaneling of impartial jurors is such a vital component of the fair administration of justice, the NJSBA recommended that the Judiciary test any changes in the juror process through focus groups and mock trials. The exercise should be aimed at determining the most effective way to educate potential jurors about implicit bias and providing them with the necessary tools to refrain from allowing implicit biases to influence their decisions.
Arbitration agreements: The Trustees approved draft model arbitration disclosure language to be shared with the Judiciary. The draft language was provided in follow-up to the comments the Board submitted to the Courts Advisory Committee on Professional Ethics regarding required disclosures when including an arbitration clause in a retainer agreement, pursuant to Delaney v. Dickey. The NJSBA was an amicus party in the Delaney case, in which the Court upheld the use or arbitration clauses in retainer agreements but concluded attorneys must provide clients with additional information to ensure clients are fully aware of the differences between arbitration and a judicial trial. The Association previously urged the ACPE to recommend adoption of the guidelines contained in the Delaney decision and said model language on arbitration clauses should be included in those updates.
Government affairs: The NJSBA voted to support A2249, which prohibits consumer reporting agencies from charging certain fees and includes certain provisions in contracts with consumers. The Association will also pursue sponsors for legislation drafted by its Military Law and Veteran’s Affairs Section that would provide a comprehensive definition of “veteran” and remove the “time of war” requirement from all state statutes, excluding the definition applicable to civil service preferences under N.J.S.A. 11A:5-1, which is mandated by the state constitution.
New Jersey State Bar Foundation trustees: The NJSBA Board of Trustees approved the selection of representatives to the New Jersey State Bar Foundation’s Board of Trustees. The reappointed trustees are: Kelly Ann Bird, Thomas J. Manzo, Katrina Homel, Mikeisha Anderson, Ralph J. Lamparello, former NJSBA president, and former Association Trustee Heather Suarez. NJSBA Trustee Alexandra Gallo was appointed as a new trustee to the Foundation board, beginning in June. Norberto Garcia, who is concluding as Foundation president and will become secretary of the NJSBA in May will also sit on the Foundation board since he will be an officer of the Association.
Recognition of the Monmouth Vicinage: The Board approved a resolution honoring the Monmouth Vicinage for receiving the American Bar Association Award for the Best 2020 Law Day Theme Interpretation. The vicinage, in partnership with the Monmouth Bar Association, held virtual celebrations marking Law Day and the “Your vote, Your Voice, Our Democracy,” theme.