2A:15-59.1 Frivolous causes of action

2A:15-59.1 Frivolous causes of action
1. a. (1) A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous.

(2) When a public entity is required or authorized by law to provide for the defense of a present or former employee, the public entity may be awarded all reasonable litigation costs and reasonable attorney fees if the individual for whom the defense was provided is the prevailing party in a civil action, and if there is a judicial determination at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim, or defense of the nonprevailing party was frivolous.

b. In order to find that a complaint, counterclaim, cross-claim or defense of the nonprevailing party was frivolous, the judge shall find on the basis of the pleadings, discovery, or the evidence presented that either:

(1) The complaint, counterclaim, cross-claim or defense was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

(2) The nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

c. A party or public entity seeking an award under this section shall make application to the court which heard the matter. The application shall be supported by an affidavit stating in detail:

(1) The nature of the services rendered, the responsibility assumed, the results obtained, the amount of time spent by the attorney, any particular novelty or difficulty, the time spent and services rendered by secretaries and staff, other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, an itemization of the disbursements for which reimbursement is sought, and any other factors relevant in evaluating fees and costs; and

(2) How much has been paid to the attorney and what provision, if any, has been made for the payment of these fees in the future.

2A:18-61.1 Grounds for removal of tenants Eviction

2A:18-61.1 Grounds for removal of tenants.

2.No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes, other than (1) owner-occupied premises with not more than two rental units or a hotel, motel or other guest house or part thereof rented to a transient guest or seasonal tenant; (2) a dwelling unit which is held in trust on behalf of a member of the immediate family of the person or persons establishing the trust, provided that the member of the immediate family on whose behalf the trust is established permanently occupies the unit; and (3) a dwelling unit which is permanently occupied by a member of the immediate family of the owner of that unit, provided, however, that exception (2) or (3) shall apply only in cases in which the member of the immediate family has a developmental disability, except upon establishment of one of the following grounds as good cause:

a.The person fails to pay rent due and owing under the lease whether the same be oral or written; provided that, for the purposes of this section, any portion of rent unpaid by a tenant to a landlord but utilized by the tenant to continue utility service to the rental premises after receiving notice from an electric, gas, water or sewer public utility that such service was in danger of discontinuance based on nonpayment by the landlord, shall not be deemed to be unpaid rent.

b.The person has continued to be, after written notice to cease, so disorderly as to destroy the peace and quiet of the occupants or other tenants living in said house or neighborhood.

c.The person has willfully or by reason of gross negligence caused or allowed destruction, damage or injury to the premises.

d.The person has continued, after written notice to cease, to substantially violate or breach any of the landlord's rules and regulations governing said premises, provided such rules and regulations are reasonable and have been accepted in writing by the tenant or made a part of the lease at the beginning of the lease term.

e. (1) The person has continued, after written notice to cease, to substantially violate or breach any of the covenants or agreements contained in the lease for the premises where a right of reentry is reserved to the landlord in the lease for a violation of such covenant or agreement, provided that such covenant or agreement is reasonable and was contained in the lease at the beginning of the lease term.

(2)In public housing under the control of a public housing authority or redevelopment agency, the person has substantially violated or breached any of the covenants or agreements contained in the lease for the premises pertaining to illegal uses of controlled dangerous substances, or other illegal activities, whether or not a right of reentry is reserved to the landlord in the lease for a violation of such covenant or agreement, provided that such covenant or agreement conforms to federal guidelines regarding such lease provisions and was contained in the lease at the beginning of the lease term.

f.The person has failed to pay rent after a valid notice to quit and notice of increase of said rent, provided the increase in rent is not unconscionable and complies with any and all other laws or municipal ordinances governing rent increases.

g.The landlord or owner (1) seeks to permanently board up or demolish the premises because he has been cited by local or State housing inspectors for substantial violations affecting the health and safety of tenants and it is economically unfeasible for the owner to eliminate the violations; (2) seeks to comply with local or State housing inspectors who have cited him for substantial violations affecting the health and safety of tenants and it is unfeasible to so comply without removing the tenant; simultaneously with service of notice of eviction pursuant to this clause, the landlord shall notify the Department of Community Affairs of the intention to institute proceedings and shall provide the department with such other information as it may require pursuant to rules and regulations. The department shall inform all parties and the court of its view with respect to the feasibility of compliance without removal of the tenant and may in its discretion appear and present evidence; (3) seeks to correct an illegal occupancy because he has been cited by local or State housing inspectors or zoning officers and it is unfeasible to correct such illegal occupancy without removing the tenant; or (4) is a governmental agency which seeks to permanently retire the premises from the rental market pursuant to a redevelopment or land clearance plan in a blighted area. In those cases where the tenant is being removed for any reason specified in this subsection, no warrant for possession shall be issued until P.L.1967, c.79 (C.52:31B-1 et seq.) and P.L.1971, c.362 (C.20:4-1 et seq.) have been complied with.

h.The owner seeks to retire permanently the residential building or the mobile home park from residential use or use as a mobile home park, provided this subsection shall not apply to circumstances covered under subsection g. of this section.

i.The landlord or owner proposes, at the termination of a lease, reasonable changes of substance in the terms and conditions of the lease, including specifically any change in the term thereof, which the tenant, after written notice, refuses to accept; provided that in cases where a tenant has received a notice of termination pursuant to subsection g. of section 3 of P.L.1974, c.49 (C.2A:18-61.2), or has a protected tenancy status pursuant to section 9 of the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.30), or pursuant to the "Tenant Protection Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.), the landlord or owner shall have the burden of proving that any change in the terms and conditions of the lease, rental or regulations both is reasonable and does not substantially reduce the rights and privileges to which the tenant was entitled prior to the conversion.

j.The person, after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.

k.The landlord or owner of the building or mobile home park is converting from the rental market to a condominium, cooperative or fee simple ownership of two or more dwelling units or park sites, except as hereinafter provided in subsection l. of this section. Where the tenant is being removed pursuant to this subsection, no warrant for possession shall be issued until this act has been complied with. No action for possession shall be brought pursuant to this subsection against a senior citizen tenant or disabled tenant with protected tenancy status pursuant to the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et al.), or against a qualified tenant under the "Tenant Protection Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.), as long as the agency has not terminated the protected tenancy status or the protected tenancy period has not expired.

l. (1) The owner of a building or mobile home park, which is constructed as or being converted to a condominium, cooperative or fee simple ownership, seeks to evict a tenant or sublessee whose initial tenancy began after the master deed, agreement establishing the cooperative or subdivision plat was recorded, because the owner has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing. However, no action shall be brought against a tenant under paragraph (1) of this subsection unless the tenant was given a statement in accordance with section 6 of P.L.1975, c.311 (C.2A:18-61.9);

(2)The owner of three or less condominium or cooperative units seeks to evict a tenant whose initial tenancy began by rental from an owner of three or less units after the master deed or agreement establishing the cooperative was recorded, because the owner seeks to personally occupy the unit, or has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing;

(3)The owner of a building of three residential units or less seeks to personally occupy a unit, or has contracted to sell the residential unit to a buyer who wishes to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing.

m.The landlord or owner conditioned the tenancy upon and in consideration for the tenant's employment by the landlord or owner as superintendent, janitor or in some other capacity and such employment is being terminated.

n.The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under the "Comprehensive Drug Reform Act of 1987," N.J.S.2C:35-1 et al. involving the use, possession, manufacture, dispensing or distribution of a controlled dangerous substance, controlled dangerous substance analog or drug paraphernalia within the meaning of that act within or upon the leased premises or the building or complex of buildings and land appurtenant thereto, or the mobile home park, in which those premises are located, and has not in connection with his sentence for that offense either (1) successfully completed or (2) been admitted to and continued upon probation while completing, a drug rehabilitation program pursuant to N.J.S.2C:35-14; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who has been so convicted or has so pleaded, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently, except that this subsection shall not apply to a person harboring or permitting a juvenile to occupy the premises if the juvenile has been adjudicated delinquent upon the basis of an act which if committed by an adult would constitute the offense of use or possession under the said act. No action for removal may be brought pursuant to this subsection more than two years after the date of the adjudication or conviction or more than two years after the person's release from incarceration whichever is the later.

o.The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault, or terroristic threats against the landlord, a member of the landlord's family or an employee of the landlord; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who has been so convicted or has so pleaded, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently. No action for removal may be brought pursuant to this subsection more than two years after the adjudication or conviction or more than two years after the person's release from incarceration whichever is the later.

p.The person has been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this act for an offense under N.J.S.2C:20-1 et al. involving theft of property located on the leased premises from the landlord, the leased premises or other tenants residing in the leased premises, or N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault or terroristic threats against the landlord, a member of the landlord's family or an employee of the landlord, or under the "Comprehensive Drug Reform Act of 1987," N.J.S.2C:35-1 et al., involving the use, possession, manufacture, dispensing or distribution of a controlled dangerous substance, controlled dangerous substance analog or drug paraphernalia within the meaning of that act within or upon the leased premises or the building or complex of buildings and land appurtenant thereto, or the mobile home park, in which those premises are located, and has not in connection with his sentence for that offense either (1) successfully completed or (2) been admitted to and continued upon probation while completing a drug rehabilitation program pursuant to N.J.S.2C:35-14; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who committed such an offense, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently, except that this subsection shall not apply to a person who harbors or permits a juvenile to occupy the premises if the juvenile has been adjudicated delinquent upon the basis of an act which if committed by an adult would constitute the offense of use or possession under the said "Comprehensive Drug Reform Act of 1987."

q.The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under N.J.S.2C:20-1 et al. involving theft of property from the landlord, the leased premises or other tenants residing in the same building or complex; or, being the tenant or lessee of such leased premises, knowingly harbors therein a person who has been so convicted or has so pleaded, or otherwise permits such a person to occupy those premises for residential purposes, whether continuously or intermittently.

For purposes of this section, (1) "developmental disability" means any disability which is defined as such pursuant to section 3 of P.L.1977, c.82 (C.30:6D-3); (2) "member of the immediate family" means a person's spouse, parent, child or sibling, or a spouse, parent, child or sibling of any of them; and (3) "permanently" occupies or occupied means that the occupant maintains no other domicile at which the occupant votes, pays rent or property taxes or at which rent or property taxes are paid on the occupant's behalf.

NJSA 2A:84A-22 Marital privilege - confidential communications

NJSA 2A:84A-22 Marital privilege - confidential communications
22. Rule 28. Marital privilege--Confidential communications.



No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2). When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication.

Revised CIVIL CASE INFORMATION STATEMENT (CIVIL CIS)

Revised CIVIL CASE INFORMATION STATEMENT (CIVIL CIS)

NOTICE TO THE BAR

REVISIONS TO SIDE 2 REGARDING TRACK IV CASE TYPES

The Civil Case Information Statement (“Civil CIS”) is included in the Rules of Court as Appendix XII-B1. The Supreme Court previously delegated to the Administrative Director the authority to approve revisions to Side 2 of the Civil CIS. This Notice is to advise the bar of the approval of several such revisions to Side 2. The complete Civil CIS as revised is attached. No changes have been made to Side 1. The approved revisions, which are effective June 20, 2011, are as follows:

•

the addition of case type 293 for the DePuy ASR Hip Implant litigation, pursuant to the Supreme Court’s April 12, 2011 Order centralizing the management of the litigation but not designating it as a mass tort;

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the addition of the term “Isotretinoin” to the description of case type 271, pursuant to the Supreme Court’s May 4, 2011 Order designating litigation involving Isotretinoin (generic Accutane) as part of the Accutane Litigation mass tort designation;

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the removal of case type 275 for the Ortho Evra Birth Control Patch litigation, pursuant to the Supreme Court’s March 8, 2011 Order terminating mass tort designation and centralized management of the litigation;

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the removal of case type 277 for the Mahwah Toxic Dump Site litigation, pursuant to the Supreme Court’s May 4, 2011 Order terminating mass tort designation and centralized management of the litigation; and

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the removal of case type 283 for the Digitek litigation, pursuant to the Supreme Court’s May 17, 2011 Order terminating mass tort designation and centralized management of the litigation.

Appendix XII-B1

FOR USE BY CLERK’S OFFICE ONLY

Effective 06/20/2011, CN 10517-English page 1 of 2

PAYMENT TYPE: CK CG CA

CHG/CK NO.

AMOUNT:

OVERPAYMENT:

BATCH NUMBER:

CIVIL CASE INFORMATION STATEMENT

(CIS)

Use for initial Law Division

Civil Part pleadings (not motions) under Rule 4:5-1

Pleading will be rejected for filing, under Rule 1:5-6(c),

if information above the black bar is not completed

or attorney’s signature is not affixed

ATTORNEY / PRO SE NAME TELEPHONE NUMBER COUNTY OF VENUE

FIRM NAME (if applicable) DOCKET NUMBER (when available)

OFFICE ADDRESS DOCUMENT TYPE

JURY DEMAND YES NO

NAME OF PARTY (e.g., John Doe, Plaintiff) CAPTION

CASE TYPE NUMBER (See reverse side for listing) IS THIS A PROFESSIONAL MALPRACTICE CASE? YES NO

IF YOU HAVE CHECKED “YES,” SEE N.J.S.A. 2A:53 A -27 AND APPLICABLE CASE LAW

REGARDING YOUR OBLIGATION TO FILE AN AFFIDAVIT OF MERIT.

RELATED CASES PENDING? IF YES, LIST DOCKET NUMBERS

YES NO

DO YOU ANTICIPATE ADDING ANY PARTIES NAME OF DEFENDANT’S PRIMARY INSURANCE COMPANY (if known)

(arising out of same transaction or occurrence)? NONE

YES NO

UNKNOWN

THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE.

CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION

DO PARTIES HAVE A CURRENT, PAST OR IF YES, IS THAT RELATIONSHIP:

RECURRENT RELATIONSHIP? EMPLOYER/EMPLOYEE FRIEND/NEIGHBOR OTHER (explain)

YES NO FAMILIAL BUSINESS

DOES THE STATUTE GOVERNING THIS CASE PROVIDE FOR PAYMENT OF FEES BY THE LOSING PARTY? YES NO

USE THIS SPACE TO ALERT THE COURT TO ANY SPECIAL CASE CHARACTERISTICS THAT MAY WARRANT INDIVIDUAL MANAGEMENT OR

ACCELERATED DISPOSITION

DO YOU OR YOUR CLIENT NEED ANY DISABILITY ACCOMMODATIONS? IF YES, PLEASE IDENTIFY THE REQUESTED ACCOMMODATION

YES NO

WILL AN INTERPRETER BE NEEDED? IF YES, FOR WHAT LANGUAGE?

YES NO

I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be

redacted from all documents submitted in the future in accordance with Rule 1:38-7(b).

ATTORNEY SIGNATURE:

Side 2

CIVIL CASE INFORMATION STATEMENT

(CIS)

Use for initial pleadings (not motions) under Rule 4:5-1

CASE TYPES (Choose one and enter number of case type in appropriate space on the reverse side.)

Track I - 150 days' discovery

151 NAME CHANGE

175 FORFEITURE

302 TENANCY

399 REAL PROPERTY (other than Tenancy, Contract, Condemnation, Complex Commercial or Construction)

502 BOOK ACCOUNT (debt collection matters only)

505 OTHER INSURANCE CLAIM (including declaratory judgment actions)

506 PIP COVERAGE

510 UM or UIM CLAIM (coverage issues only)

511 ACTION ON NEGOTIABLE INSTRUMENT

512 LEMON LAW

801 SUMMARY ACTION

802 OPEN PUBLIC RECORDS ACT (summary action)

999 OTHER (briefly describe nature of action)

Track II - 300 days' discovery

305 CONSTRUCTION

509 EMPLOYMENT (other than CEPA or LAD)

599 CONTRACT/COMMERCIAL TRANSACTION

603N AUTO NEGLIGENCE – PERSONAL INJURY (non-verbal threshold)

603Y AUTO NEGLIGENCE – PERSONAL INJURY (verbal threshold)

605 PERSONAL INJURY

610 AUTO NEGLIGENCE – PROPERTY DAMAGE

621 UM or UIM CLAIM (includes bodily injury)

699 TORT – OTHER

Track III - 450 days' discovery

005 CIVIL RIGHTS

301 CONDEMNATION

602 ASSAULT AND BATTERY

604 MEDICAL MALPRACTICE

606 PRODUCT LIABILITY

607 PROFESSIONAL MALPRACTICE

608 TOXIC TORT

609 DEFAMATION

616 WHISTLEBLOWER / CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA) CASES

617 INVERSE CONDEMNATION

618 LAW AGAINST DISCRIMINATION (LAD) CASES

Track IV - Active Case Management by Individual Judge / 450 days' discovery

156 ENVIRONMENTAL/ENVIRONMENTAL COVERAGE LITIGATION

303 MT. LAUREL

508 COMPLEX COMMERCIAL

513 COMPLEX CONSTRUCTION

514 INSURANCE FRAUD

620 FALSE CLAIMS ACT

701 ACTIONS IN LIEU OF PREROGATIVE WRITS

Centrally Managed Litigation (Track IV)

280 ZELNORM

290 POMPTON LAKES ENVIRONMENTAL LITIGATION

285 STRYKER TRIDENT HIP IMPLANTS

291 PELVIC MESH/GYNECARE

288 PRUDENTIAL TORT LITIGATION

292 PELVIC MESH/BARD

289 REGLAN

293 DEPUY ASR HIP IMPLANT LITIGATION

Mass Tort (Track IV)

248 CIBA GEIGY

281 BRISTOL-MYERS SQUIBB ENVIRONMENTAL

266 HORMONE REPLACEMENT THERAPY (HRT)

282 FOSAMAX

271 ACCUTANE/ISOTRETINOIN

284 NUVARING

274 RISPERDAL/SEROQUEL/ZYPREXA

286 LEVAQUIN

278 ZOMETA/AREDIA

287 YAZ/YASMIN/OCELLA

279 GADOLINIUM

601 ASBESTOS

If you believe this case requires a track other than that provided above, please indicate the reason on Side 1, in the space under "Case Characteristics.

Please check off each applicable category

Putative Class Action

Title 59

Effective 06/20/2011, CN 10517-English page 2 of 2

He v. Miller (A-81-09)

5-12-01 The jury’s award cannot stand because the trial court

provided a sufficient explanation for remittitur and

its decision was supported by the record.

JOINT OPINION OPINION 720 ADVISORY COMMITTEE ON PROFESSIONAL ETHICS OPINION 46 COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW Paralegals and Non- Attor

-- N.J.L.J. -- (March --, 2011) Issued by ACPE and UPLC March 23, 2011

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW Appointed by the Supreme Court of New Jersey

JOINT OPINION OPINION 720

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

OPINION 46 COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW

Paralegals and Non- Attorney Legal Assistants Signing Correspondence; Modifying Opinion 611

The New Jersey State Bar Association submitted an inquiry to the Advisory Committee on Professional Ethics (ACPE) by forwarding a request of its Paralegal Committee seeking reconsideration of ACPE Opinion 611, 121 N.J.L.J. 301 (February 18, 1988). Opinion 611 found that paralegals may not sign correspondence to clients, adverse attorneys, and courts, even when such correspondence is routine and non-substantive. As the inquiry concerns potential unauthorized practice of law, the ACPE requested the assistance of the Committee on the Unauthorized Practice of Law. In this Joint Opinion, the Committees modify Opinion 611 and find that the rules governing attorney ethics are not violated when paralegals sign routine, non- substantive correspondence to clients, adverse attorneys, or courts, provided an attorney is

supervising the paralegal and is aware of the exact nature of the correspondence, the paralegal’s identity and non-attorney status is noted, and the name of the responsible attorney is set forth in the correspondence.

Opinion 611 is grounded on concerns about potential unauthorized practice of law and appropriate professional conduct for attorneys. The Opinion found that a paralegal may sign documents on the letterhead of the firm that employs him or her when the document is confined to “the gathering [or dissemination] of factual information and documents including from governmental agencies (other than tribunals)” and the identity and non-lawyer status of the paralegal is set forth. The Committee reasoned that if a paralegal is permitted to sign correspondence to clients, attorneys, or courts, the paralegal may drift into the unauthorized practice of law. Limiting such correspondence to the responsible attorney “avoids the opportunity or temptation for the non-lawyer assistant to step over the line by rendering legal advice, for example in the interpretation of the meaning or effect of legal documents.” Id.

Moreover, the limitation forces the responsible attorney to “keep abreast of the matter by controlling important correspondence and so performing his essential function as the responsible attorney including his obligation of close supervision of the activities of the legal assistant.” Id. It “further emphasizes the notion that it is the attorney and not the legal assistant who is the responsible advisor or actor in the matter” and “tends to maintain direct contact between the attorney and his client, the attorney and his adversary, and the attorney and the tribunal so that there can be no question or excuse regarding the origin of or the responsibility for the subject matter of the correspondence.” Id.

This flat ban on paralegals signing certain broad categories of correspondence is a prophylactic measure that minimizes potential unauthorized practice of law by the paralegal. It also is a rule that probably is violated on a daily basis. Paralegals may regularly send, for

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example, a letter or email to a client asking about availability for an independent medical examination. This ministerial scheduling communication would not ordinarily be viewed as the practice of law and would not ordinarily trigger ethics concerns. It is, however, a violation of the current prohibition on all correspondence by a paralegal with a client, is banned by Opinion 611, and is therefore considered “unethical.”

Moreover, the current rule myopically focuses on the conduct of the paralegal instead of on the conduct of the attorney charged with supervising the paralegal. When the Supreme Court reviewed whether paralegals may operate independently, outside of a law firm, the Court maintained its gaze on the conduct of the supervising attorney. In re Opinion No. 24 of the Committee on the Unauthorized Practice of Law, 128 N.J. 114 (1992).

[T]he important inquiry is whether the paralegal, whether employed or retained, is working directly for the attorney, under that attorney’s supervision. Safeguards against the unauthorized practice of law exist through that supervision. . . . [A]n attorney who does not properly supervise a paralegal is in violation of the ethical Rules. Although fulfilling the ethical requirements of RPC 5.3 is primarily the attorney’s obligation and responsibility, a paralegal is not relieved from an independent obligation to refrain from illegal conduct and to work directly under the supervision of the attorney. A paralegal who recognizes that the attorney is not directly supervising his or her work or that such supervision is illusory . . . must understand that he or she is engaged in the unauthorized practice of law. . . . The key is supervision, and that supervision must occur regardless of whether the paralegal is employed by the attorney or retained by the attorney.

[Id. at 127.] In this Joint Opinion, the Committees likewise focus on the responsibility of attorneys to

supervise paralegals rather than on the temptations paralegals may face when signing correspondence. If the supervising attorney permits his or her paralegal to sign correspondence to clients, attorneys, or courts, the attorney must be aware of the exact nature of the correspondence and be satisfied that it is non-substantive and does not cross the line into the

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unauthorized practice of law. Paralegals also have the responsibility to ensure that their work is directly supervised by the responsible attorney and they are not engaging in the unauthorized practice of law.

The New Jersey State Bar Association Paralegal Committee suggested, in the inquiry, that a paralegal should not be permitted to sign correspondence that provides legal advice, negotiates a settlement or fee agreement, threatens legal action, or can be construed as a legal agreement or pleading. A person signing correspondence of this character clearly is engaging in the practice of law and such correspondence must be signed only by an attorney.

The Committee on Unauthorized Practice of Law has investigated grievances involving paralegals (and out-of-state attorneys) who signed correspondence seeking to negotiate a settlement, threatening legal action to collect a debt, taking positions on landlord-tenant issues such as eviction, drafting a contract of sale or other legal document, and soliciting legal business. The Committee has also investigated grievances where the paralegal has signed and even filed pleadings in immigration, divorce, and expungement actions. Each of these matters comprised the unauthorized practice of law. Signing correspondence that interprets the meaning or effect of legal documents also is the practice of law. Under no circumstances may a paralegal sign such documents or correspondence, even if the paralegal is directly supervised by an attorney.

At the other end of the spectrum is routine, non-substantive correspondence, such as letters (or emails) to a client inquiring about availability for a meeting and letters to adverse attorneys merely transmitting an underlying document such as a deposition transcript. Such correspondence does not reflect the practice of law.

Much correspondence to clients and adverse attorneys will fall between these two poles. It can be difficult to determine whether a communication provides legal advice. The supervising

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attorney must be aware of the exact nature of the correspondence and make the determination whether it is routine and non-substantive and, therefore, may be signed by the paralegal.

The Committees note that correspondence sent by electronic means, such as by email, is governed by the same principles as correspondence sent in paper form. The person who is considered to have “signed” an email generally is viewed as the person who “sends” the email. Hence, an email interpreting the meaning or effect of a legal document, for example, must be sent from the email account of the attorney and not the paralegal.

The Committees agree with the suggestion of the New Jersey State Bar Association Paralegal Committee that all correspondence to clients and adverse attorneys signed by, or sent from the email account of, a paralegal must include the name of the responsible attorney as the person to whom questions or comments should be directed. The Committees add that such correspondence must also reflect the identity and non-attorney status of the paralegal.

The prohibition in Opinion 611 also was supported by concerns about appropriate professional conduct and the erosion of professionalism that may occur when busy attorneys overly rely on non-lawyer assistants. The Opinion noted that prohibiting paralegals from signing such correspondence requires the responsible attorney to control important correspondence, emphasizes that the attorney, not the paralegal, is the responsible advisor, and maintains direct contact between the attorney and his or her client, adversary, and courts. The Committees agree that these are substantial concerns.

Correspondence to courts generally should be signed by attorneys and not paralegals. Similarly, electronic communications to a court should be submitted by the attorney, not the paralegal. It is the better practice for attorneys to sign all correspondence, especially correspondence to clients, adversaries, and courts but, with regard to routine, non-substantive

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correspondence, the Committees recognize that it is more a matter of style and respect than of ethics.

The caliber, training, and professionalism of paralegals have risen significantly but attorneys still have the ethical responsibility to directly supervise their paralegals and the professional duty to maintain appropriate contact with clients, adverse attorneys, and courts. Opinion 611 is hereby modified. The Committees find that the Rules of Professional Conduct do not prohibit paralegals from signing routine, non-substantive correspondence to clients, adverse attorneys, and courts, provided supervising attorneys are aware of the exact nature of the correspondence. As noted above, the correspondence must reflect the identity and non-attorney status of the paralegal and include the name of the responsible attorney in the matter.

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attached corrective amendment to Rule 4:26-5 of the Rules Governing the Courts of the State of New Jersey is adopted to be effective immediately.

SUPREME COURT OF NEW JERSEY

It is ORDERED that the attached corrective amendment to Rule 4:26-5 of the Rules Governing the Courts of the State of New Jersey is adopted to be effective immediately.

Dated: March 8, 2011

For the Court, /s/ Stuart Rabner Chief Justice

4:26-5. Unknown Defendants: In Rem Actions (a) ... no change

(b) Description of Unknown Defendants. When it shall appear by the affidavit of inquiry required by R. [4:4-5(c)] 4:4-5(a)(3) that the affiant has been unable to ascertain whether or not any person who is a proper party defendant is married, or, if married, the given name of the wife of such male defendant or the surname and either the given name or initial thereof of the husband of such female defendant, or that the affiant has been unable to ascertain whether or not any person who is a proper party defendant is still the owner of the specific property or res or any interest therein, and has been unable to ascertain the names and residences of any of the person's successors in right, title and interest in the same, or that the affiant has been unable to ascertain whether or not such person is still alive, or if such person is known or believed to be dead, that the affiant has been unable, in either case, to ascertain the names and residences of such person's heirs, devisees or personal representatives or his, hers, their, or any of their, successors in right, title or interest in the property or res or interest therein, or of such of them as may be proper parties defendant in the action, any such person or unknown person or persons may be made a party defendant by such of the following designations as may be appropriate:

(1) As to any such male person and such wife, if he has any, by designating such male person by his proper given name and surname, as it appears of record or otherwise, and by designating such wife by the given name and surname of such male person, as it so appears, with "Mrs." prefixed thereto; or

(2) As to any such female person and such husband, if she has any, by designating such female person by her proper given name and surname, as it appears, of record or otherwise, and by designating such husband either

(i) By the name of such female, as it so appears, as "Mr. ..., husband of ..." using such surname of such female person in the first blank and such given name and such surname of such female person in the second blank; or

(ii) By the name "John Doe, husband of ..., said name of John Doe being fictitious," using the given name and surname of such female person in the blank; or

(3) As to any such person, whether such person is still alive or whether it is not known whether such person is alive or dead, or if such person is known or is believed to be dead, and as to any such person's unknown heirs, devisees or personal representatives or his, hers, their, or any of their successors in right, title and interest in such specific property or interest therein or such res, thus: "..., his or her heirs, devisees and personal representatives and his, hers, their, or any of their, successors in right, title and interest," using the name of such person in the blank.

(c) ... no change (d) ... no change (e) ... no change

Note: Source-R.R. 4:30-4(a)(b) (first sentence) (c)(d)(e); introductory paragraph and paragraphs (b), (c) and (d) amended July 13, 1994 to be effective September 1, 1994; paragraph (c) amended July 23, 2010 to be effective September 1, 2010; paragraph (b) amended March 8, 2011 to be effective immediately.