2010 REPORT OF THE SUPREME COURT COMMITTEE ON SPECIAL CIVIL PART PRACTICE

2010 REPORT
OF THE SUPREME COURT COMMITTEE
ON SPECIAL CIVIL PART PRACTICE
JANUARY 21, 2010
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TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION .......................1
A. Proposed Amendment to R. 6:2-3(b) – Service of Original Process
in Tenancy Actions ........................................................................................1
B. Proposed Amendment to Appendix XI-B – Return of Service on
Tenancy Summons ........................................................................................4
C. Proposed Amendments to R. 6:7-1 – Protection of Exempt Funds
From Levy......................................................................................................7
D. Proposed Amendments to Appendix XI-H to Protect Exempt
Funds From Levy – Execution Against Goods and Chattels ..................11
E. Proposed Amendment to R. 6:7-1(b) – Filing Notice to Debtor
With the Clerk .............................................................................................13
II. RULE AMENDMENTS CONSIDERED AND REJECTED............................16
A. Proposed Amendment to R. 6:1-2 – Monetary Limits Increase .............16
B. Proposed Amendment to Appendix XI-X – Verified Tenancy
Complaint.....................................................................................................19
C. Proposed Amendments to Appendix XI-J – Wage Execution ................20
D. Proposed Amendment to R. 6:6-6 - Provision of Notice to
Judgment Creditors of Applications for Post-Judgment Relief
From Levies..................................................................................................21
E. Proposed Amendment to R. 6:7-2(a) – Elimination of
Requirement to Show Good Cause for Issuance of Order to Take
Post Judgment Discovery............................................................................22
F. Proposed Amendments to Rule 6:7-2 and Appendices XI-M and
XI-O - “Shall” vs. “May”...........................................................................23
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III. OTHER RECOMMENDATIONS - NONE........................................................26
IV. LEGISLATION - NONE ......................................................................................27
V. MATTERS HELD FOR CONSIDERATION ....................................................28
A. Use of Credit Cards to Pay Fees and Post Deposits .................................28
B. “Shotgun” Bank Levies...............................................................................29
C. Proposed Amendment to R. 6:7-2(b)(2) - Eliminate Requirement
of Serving Defendant With Information Subpoena Before Serving
Banks ............................................................................................................30
VI. CONCLUSION......................................................................................................31
APPENDIX – Excerpts From 1992 Report of the Special Civil Part Practice
Committee to the Supreme Court (Pages 51-59 and 101-122)…………………... 32
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I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendment to R. 6:2-3(b) – Service of Original Process in Tenancy
Actions
During the 2006-2008 Committee term a member had proposed to amend R. 6:2-3(b) so
as to resolve a perceived discrepancy between the statute and the rule regarding service in
tenancy actions. N.J.S.A. 2A:18-54 provides for service of the summons and complaint by
posting in those situations where admission to the subject premises is refused or no person above
the age of 14 is present. Rule 6:2-3(b), on the other hand, requires service by mail and by either
personal delivery or posting. In other words, there is no requirement in the rule that the Special
Civil Part Officer first attempt personal service before posting. The Committee decided, by a
vote of 16-4, to recommend amending the rule so as to require personal service, but permit
attachment to the door of the defendant’s unit if the Officer is unable to personally deliver it to
the defendant or a member of the defendant’s household over the age of 14 years. Note that, if
adopted, this rule change will require a modification of the Officer’s return of service on the
summons and this is addressed in the next section of the Report. The text of the proposed
amendment to the rule follows.
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6:2-3. Service of Process
(a) By Whom Served. ... no change.
(b) Manner of Service. Service of process within this State shall be made in accordance
with R. 6:2-3(d) or as otherwise provided by court order consistent with due process of law, or in
accordance with R. 4:4-5. Substituted service within this State shall be made pursuant to R. 6:2-
3(d). Substituted or constructive service outside this State may be made pursuant to the
applicable provisions in R. 4:4-4 or R. 4:4-5.
In summary actions for the recovery of premises [landlord and tenant actions], service of
process shall be by ordinary mail and by [either] delivery personally pursuant to R. 4:4-4. When
the person serving process is unable to effectuate service by delivering process personally,
service may be effectuated [or] by affixing a copy of the summons and complaint on the door of
the unit occupied by the defendant [subject premises]. When the plaintiff-landlord has reason to
believe that service may not be made at the subject premises, the landlord shall also request
service at an address, by certified and regular mail addressed to the tenant, where the landlord
believes that service will be effectuated. The landlord shall furnish to the clerk two additional
copies of the summons and complaint for each defendant for this purpose.
(c) Notice of Service. ... no change.
(d) Service by Mail Program. ... no change.
(e) General Appearance; Acknowledgement of Service. ... no change.
Note: Source--R.R. 7:4-6(a)(b) (first three sentences), 7:4-7. Paragraph (a) amended July 7,
1971 effective September 13, 1971; paragraph (a) amended July 14, 1972 to be effective
September 5, 1972; paragraph (b) amended November 27, 1974 to be effective April 1, 1975;
paragraphs (a)(b) amended July 17, 1975 to be effective September 8, 1975; paragraph (a)
amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980
to be effective September 8, 1980; paragraph (b) amended July 16, 1981 to be effective
September 14, 1981; paragraphs (a) and (b) amended and paragraph (d) adopted November 5,
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1986 to be effective January 1, 1987; paragraph (c) amended November 7, 1988 to be effective
January 2, 1989; paragraphs (b) and (d) amended June 29, 1990 to be effective September 4,
1990; paragraph (d) amended July 17, 1991 to be effective immediately; paragraph (e) adopted
July 14, 1992 to be effective September 1, 1992; paragraphs (a) and (e) amended July 13, 1994
to be effective September 1, 1994; paragraph (d)(4) amended July 5, 2000 to be effective
September 5, 2000; paragraphs (a), (b), (d), (d)(2), and (e) amended July 12, 2002 to be effective
September 3, 2002; paragraphs (b), d(4) and (5) amended July 28, 2004 to be effective
September 1, 2004; paragraph (b) amended__________, 2010 to be effective___________,2010.
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B. Proposed Amendment to Appendix XI-B – Return of Service on Tenancy
Summons
Having agreed to recommend amending R. 6:2-1, as described above in Section I.A. of
this Report, the Committee turned its attention to the Special Civil Part Officer’s return of
service on the summons, which is a mandated form set forth in Appendix XI-B to the court rules.
Members of the Committee debated the degree of detail that should be required if the officer is
unsuccessful in making personal service. Concerns ranged from fear of imposing unreasonable
requirements on the officers when they are unable to gain access to the door of the tenant’s unit
in a large apartment building, on the one hand, to a need for specifics when service of process is
challenged by the defendant, on the other. Included was the thought that the court officers
should have a clear understanding of what is expected of them by the court. Ultimately, the
Committee decided (by a vote of 9 in favor and 7 opposed) to recommend amending the return
of service on the summons by adding a line for the court officer to describe the efforts made to
personally serve the defendant, if that effort was unsuccessful, and to retain the current line for
the officer to describe the premises when the summons has been posted. It will be up to the
judge to determine the adequacy of service if that issue is raised in the litigation. The proposed
amendments to Appendix XI-B follow.
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APPENDIX XI-B. TENANCY SUMMONS
AND RETURN OF SERVICE (R. 6:2-1)
Plaintiff or Plaintiff’s Attorney Information: Superior Court of New Jersey
Name: _____________________________ Law Division, Special Civil Part
Address: ___________________________ __________________ County
___________________________________ ___________________________
Phone: (___)_________________________ ___________________________
(____)______________________
______________________________, Plaintiff(s) Docket Number: LT - _____________
(to be provided by the court)
versus
Civil Action
______________________________, Defendant(s) SUMMONS
LANDLORD/TENANT
Defendant Information:
Name: __________________________ ___Nonpayment
Address: _________________________ ___Other
_________________________________
Phone:(___)_______________________
NOTICE TO TENANT: The purpose of the attached complaint is to permanently remove you and your
belongings from the premises. If you want the court to hear your side of the case you must appear in
court on this date and time: _____________ at ________ a.m./p.m., or the court may rule against you.
REPORT TO: ___________________________________
If you cannot afford to pay for a lawyer, free legal advice may be available by contacting Legal Services at
________________. If you can afford to pay a lawyer but do not know one, you may call the Lawyer Referral
Services of your local county Bar Association at _______________.
You may be eligible for housing assistance. To determine your eligibility, you must immediately contact the
welfare agency in your county at __________________, telephone number ____________________.
If you need an interpreter or an accommodation for a disability, you must notify the court immediately.
Si Ud. no tiene dinero para pagar a un abogado, es posible que pueda recibir consejos legales gratuitos si se
comunica con Servicios Legales (Legal Services) al ____________. Si tiene dinero para pagar a un abogado
pero no conoce ninguno puede llamar a Servicios de Recomendación de Abogados (Lawyer Referral Services)
del Colegio de Abogados (Bar Association) de su condado local al_________________.
Es posible que pueda recibir asistencia con la vivienda si se comunica con la agencia de asistencia publica
(welfare agency) de su condado al _____________________________________, telefono ___________.
Si necesita un interprete o alguna acomodación para un impedimento fisico, tiene que notificárselo
inmediatamente al tribunal.
Date: ___________________ _________________________________________
Clerk of the Special Civil Part
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COURT OFFICER’S RETURN OF SERVICE (FOR COURT USE ONLY)
Docket Number: ________________________Date: __________________Time: ______________
WM ___ WF ___ BM ___ BF OTHER _____ HT ____ WT _____ AGE ___ MUSTACHE ___ BEARD ___ GLASSES___ NAME:
____________________________RELATIONSHIP: __________
Efforts Made to Personally Serve __________________________________________________________________________
_____________________________________________________________________________________________________
Description of Premises if Posted __________________________________________________________________________
_____________________________________________________________________________________________________
I hereby certify the above to be true and accurate: _________________________________________________________
Special Civil Part Officer
[Note: Former Appendix XI-B, consisting of model tenancy complaint and summons forms, deleted, and new tenancy
summons and return of service form adopted July 12, 2002 to be effective September 3, 2002; amended July 27, 2006 to be
effective September 1, 2006: amended_____________, 2010 to be effective___________, 2010.]
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C. Proposed Amendments to R. 6:7-1 – Protection of Exempt Funds From Levy
The Committee stated in its 2008 report to the Supreme Court that it was holding for
further consideration the idea of going beyond the provision of a speedy remedy when bank
accounts are levied upon that contain funds that are exempt from levy under federal or state law
to find a mechanism that can prevent it from happening in the first place. The funds in question
come from a variety of sources, such as Social Security, S.S.I., V.A., unemployment, workers’
compensation, welfare and child support payments. The Committee noted that in 2006 the
Supreme Court accepted the its recommendation to provide a speedy mechanism in the court
rules for recipients of exempt funds to seek their release from levy (see, R. 6:6-6(a)), but
concluded that more should be done to prevent such levies in the first place because it is often
difficult to undo the damage they cause to those members of society least able to afford it. These
consequences include bank fees for checks that have bounced, bank fees for freezing the debtor’s
account pursuant to the levy, evictions for nonpayment of rent and deprivation of life’s
necessities.
The Committee was well aware of the danger of intruding on the legislative realm if it
sought to create new substantive rights, but it became clear that the rights in question had already
been defined in both federal and state legislation and the question is one of how best to
implement those legislative determinations in the judicial context. The mechanism
recommended by the Committee consists of limiting the scope of any levy on bank accounts so
that it conforms to established law and so that it can be easily implemented by the third-party
garnishee banks. The Committee was informed that several large banks are already doing this
voluntarily and that other jurisdictions have pursued similar efforts along these lines.
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The easiest scenario to address is one in which the deposits into a judgment-debtor’s
account have been made electronically on a recurring basis and have come exclusively from an
exempt source. This is not difficult for banks to discern from their electronic records. Some
accounts, however, have been in existence for many years and it could be difficult to determine
which funds are exempt when they have been commingled with non-exempt funds if the bank
has to look at the entire deposit history of an account. As a practical matter the Committee
concluded, as most judges have when called upon to rule in these matters, that if nothing but
exempt funds have been electronically deposited into an account for 90 days, the account almost
certainly consists exclusively of those exempt funds and the entire amount should be protected
from levy. It is also the period of time that is of most interest to judgment-creditors, as reflected
in Question #11 in the mandatory form for the Information Subpoena contained in Appendix XIL
to the court rules. Question #11 asks the judgment-debtor for copies of the three most recent
bank statements for any accounts containing funds from seven exempt sources.
With regard to situations where funds from exempt and non-exempt sources have been
commingled within the 90 days preceding the levy, the Committee concluded that funds
deposited electronically on a recurring basis by exempt sources within the last 45 days should be
presumed by the garnishee bank to be exempt from levy. Again, this should be easily
discernable by the bank from its electronic records.
These recommendations have been incorporated into proposed amendments to R. 6:7-1,
as set forth infra. They will comprise a new paragraph (b), divided into two parts that address
the situations described above. The implementation of the rule amendments would be
accomplished by corresponding modifications to the form of the writ of execution against goods
and chattels contained in Appendix XI-H to the rules (see Section I.D. of this Report, below).
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Note that the addition of a new paragraph (b) will require the redesignation of the current (b), (c),
and (d) as paragraphs (c), (d) and (e), respectively.
It should be noted that the Committee was divided on the question of whether to include
the statutory $1,000 exemption (regardless of source) in the rule amendments. Some members
felt that doing so would effectively preclude the judgment-debtor from choosing to exempt
$1,000 worth of tangible property or cash from levy rather than the $1,000 in the bank account
when the debtor might prefer to use the money in the account to pay the judgment. Others
thought that funds necessary to meet immediate basic needs (an amount at least equal to the
$1000 general exemption) can and must be protected from judicial restraint in all consumers’
bank accounts in order to achieve a minimum level of basic fairness --- and protection from
extreme hardship --- for low-income New Jerseyans. Ultimately the Committee decided to leave
to the debtor the choice of which funds to protect by using the statutory $1,000 exemption and
focus instead on protecting the funds that are exempt by statute in their entirety. The proposed
amendments follow.
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6:7-1. Requests for Issuance of Writs of Execution; Contents of Writs of Execution and Other
Process for the Enforcement of Judgments; Notice to Debtor; Claim for Exemption;
Warrant of Removal; Enforcement of Consent Judgments and Stipulations of Settlement
in Tenancy Actions
(a) Requests for Issuance; Intention to Return. ... no change.
(b) Contents of Writs of Execution and Other Process for the Enforcement of
Judgments. All writs of execution and other process for the enforcement of judgments shall
provide that any levy pursuant thereto shall exclude:
(1) all funds in an account of the debtor with a bank or other financial institution, if all
deposits into the account during the 90 days immediately prior to service of the writ were
electronic deposits, made on a recurring basis, of funds identifiable by the bank or other financial
institution as exempt from execution, levy or attachment under New Jersey or federal law, and
(2) all funds deposited electronically in an account of the debtor with a bank or other
financial institution during the 45 days immediately prior to service of the writ that are
identifiable by the bank or other financial institution as exempt from execution, levy or
attachment under New Jersey or federal law.
(c) [ (b) ] Notice to Debtor. ... no change to text.
(d) [ (c) ] Warrant of Removal; Issuance, Execution. ... no change to text.
(e) [ (d) ] Enforcement of Consent Judgments and Stipulations of Settlement in Tenancy
Actions. ... no change to text.
Note: Source – R.R. 7:11 1; former rule redesignated as paragraph (a) and paragraph (b) adopted and caption
amended July 16, 1981 to be effective September 14, 1981; paragraph (b) amended November 1, 1985 to be
effective January 2, 1986; caption amended and paragraph (c) adopted November 7, 1988 to be effective January 2,
1989; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; caption and paragraph (c),
caption and text, amended July 13, 1994 to be effective September 1, 1994; paragraph (a) caption and text amended
June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (d) adopted July 18, 2001 to be
effective November 1, 2001; paragraph (c) amended September 14, 2004 to be effective immediately; paragraph (a)
amended July 27, 2006 to be effective September 1, 2006; paragraph (b) adopted and former paragraphs (b), (c), and
(d) redesignated as (c), (d), and (e) respectively ______________, 2010 to be effective____________, 2010.
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D. Proposed Amendments to Appendix XI-H to Protect Exempt Funds From
Levy – Execution Against Goods and Chattels
To effectuate the protection of exempt funds from levy as set forth in the proposed
amendments to R. 6:7-1 in Section I.C. of this Report, above, the Committee recommends that
the form for the writ of execution against goods and chattels set forth in Appendix XI-H to the
court rules be amended accordingly. All the writs issued by the Special Civil Part statewide will
contain these provisions since the form is generated by the Automated Case Management System
(ACMS). It is important for the garnishee bank to know that the levy pursuant to the writ should
not include those funds in the judgment-debtor’s account that the bank can identify as being
exempt under federal or state law and so the amended form of the writ would be explicit in this
regard. As noted in the previous section of this Report, several banks are already doing this
voluntarily, utilizing their electronic record keeping capability to identify the exempt funds. The
proposed amendments to Appendix XI-H follow.
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APPENDIX XI-H EXECUTION AGAINST GOODS AND CHATTELS
DOCKET NO.: ___ DC-______-__ SUPERIOR COURT OF NEW JERSEY
JUDGMENT NO.: ___ VJ-_______-__ SPECIAL CIVIL PART
WRIT NUMBER: ____ _______________ COUNTY
STATE OF NEW JERSEY
EXECUTION AGAINST GOODS AND CHATTELS
PLAINTIFF(S)
VS.
DEBTORS: __________________________
DEFENDANT(S) __________________________
ADDRESS OF FIRST DEBTOR:
STREET ADDRESS
CITY NJ ZIP
TO: ___________________________________________
COURT OFFICER OF THE SPECIAL CIVIL PART
YOU ARE ORDERED to levy on the property of any of the debtors designated herein; your actions may include,
but are not limited to, taking into possession any motor vehicle(s) owned by any of the debtors, taking possession of
any inventory and/or machinery, cash, bank accounts, jewelry, electronic devices, fur coats, musical instruments,
stock certificates, securities, notes, rents, accounts receivable, or any item(s) which may be sold pursuant to statute
to satisfy this execution in full or in part. Any levy pursuant to this writ shall exclude (1) all funds in an account of
the debtor with a bank or other financial institution, if all deposits into the account during the 90 days immediately
prior to service of the writ were electronic deposits, made on a recurring basis, of funds identifiable by the bank or
other financial institution as exempt from execution, levy or attachment under New Jersey or federal law, and (2) all
funds deposited electronically in an account of the debtor with a bank or other financial institution during the 45
days immediately prior to service of the writ that are identifiable by the bank or other financial institution as exempt
from execution, levy or attachment under New Jersey or federal law. All proceeds are to be paid to the court officer
who shall pay them to the creditor or the attorney for the creditor, or, if this is not possible, to the court. This order
for execution shall be valid for two years from this date.
Local police departments are authorized and requested to provide assistance, if needed, to the officer executing
this writ. This does not authorize entry to a residence by force unless specifically directed by court order.
Judgment Date _________ Date: ________________
Judgment Amount................................................. $________
Costs and Atty. Fees .............................................$________ _________________________________
Subsequent Costs ..................................................$________ Judge
Total......................................................................$________
Credits, if any .......................................................$________
Subtotal A.............................................................$________ _________________________________
Interest .................................................................. $________ Clerk of the Special Civil Part
Execution costs and mileage................................. $________
Subtotal B ............................................................. $________ I RETURN this execution to the Court
Court officer fee....................................................$________
Total due this date................................................. $________ ( ) Unsatisfied ___________________
Date: ________________.................................... ( ) Satisfied ( ) Partly Satisfied
Property to be Levied Amount Collected. . ____________
Upon and Location of Same:
Fee Deducted. . . . . . ____________
Amount Paid to Atty.____________
CITY ST ZIP
CREDITOR’S ATTORNEY AND ADDRESS: Date: ______________
______________________________________
______________________________________
______________________________________ ______________________________
CITY NJ ZIP Court Officer
Telephone: ___-__________
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E. Proposed Amendment to R. 6:7-1(b) – Filing Notice to Debtor With the Clerk
Rule 4:59-1(g) requires a levying officer (Sheriff’s Officer for writs emanating from the
Civil Part of the Law Division; Special Civil Part Officer for writs issued by the Special Civil
Part of the Law Division) to mail copies of the Notice to Debtor (as set forth in Appendix VI to
the rules) to the judgment-debtor and judgment-creditor and to file a copy with the clerk. Rule
6:7-1(b) makes R. 4:59-1(g) applicable to actions in the Special Civil Part. The vast majority of
the 140,000 writs of execution against goods and chattels issued by the Special Civil Part each
year are used to levy against bank accounts owned by judgment-debtors and the clerks thus
receive two separate copies of the Notice to Debtor: the first one from the levying officer and
the second with the supporting papers submitted by the judgment-creditor when moving for a
turnover order. A member of the Committee explained, on behalf of the Civil Division
Managers and Assistant Managers, that the volume of these documents has become impossible to
keep up with and the Conference of Civil Division Managers thus recommended in its Report on
Workload Reduction Through Operational Efficiencies that the rule be amended to eliminate the
requirement that the officer file a copy when making a bank levy since the creditor is required to
submit a copy with the motion for a turnover order.
The provision in question was adopted by the Supreme Court in 1985 on the joint
recommendation of the Civil and Special Civil Part Practice Committees. The rationale for
requiring the Court Officer to file a copy of the Notice to Debtor with the clerk, however, was
not discussed in either committee's 1985 report to the Supreme Court.
This Committee decided to recommend an amendment to R. 6:7-1(b) that would require
filing of a copy of the Notice to Debtor by the Special Civil Part Officer only in cases involving
a levy on tangible physical property; a copy of the Notice would still be required with the
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judgment-creditor’s motion for a turnover order in cases involving a bank levy. The purpose of
the amendment is to eliminate the duplicative filings in connection with executions on bank
accounts. The Committee proposes that R. 6:7-1(b) be amended, rather than R. 4:59-1(g),
because the number of bank levies is so much greater in the Special Civil Part and the
Committee is not aware of a comparable problem in Civil Part actions. The text of the proposed
rule amendment follows. Please note that paragraph (b) will become paragraph (c) if the
Supreme Court approves the amendment to the rule for the purpose of protecting exempt funds
from levy, as proposed in section I.C. of this Report, above.
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6:7-1. Requests for Issuance of Writs of Execution; Notice to Debtor; Claim for Exemption;
Warrant of Removal; Enforcement of Consent Judgments and Stipulations of Settlement in
Tenancy Actions
(a) Requests for Issuance; Intention to Return. ... no change.
(b) Notice to Debtor. The provisions of R. 4:59-1(g) respecting notice to debtor,
exemption claims and deferment of turnover and sales of assets shall apply to all writs of
execution issued by the Law Division, Special Civil Part, except that a copy of the Notice to
Debtor shall not be filed by the levying officer with the clerk of the court after a levy on a bank
account. The notice to debtor shall be in the form prescribed by Appendix VI to these rules.
(c) Warrant of Removal; Issuance, Execution. ... no change.
(d) Enforcement of Consent Judgments and Stipulations of Settlement in Tenancy
Actions. ... no change.
Note: Source – R.R. 7:11 1; former rule redesignated as paragraph (a) and paragraph (b)
adopted and caption amended July 16, 1981 to be effective September 14, 1981; paragraph (b)
amended November 1, 1985 to be effective January 2, 1986; caption amended and paragraph (c)
adopted November 7, 1988 to be effective January 2, 1989; paragraphs (b) and (c) amended July
14, 1992 to be effective September 1, 1992; caption and paragraph (c), caption and text,
amended July 13, 1994 to be effective September 1, 1994; paragraph (a) caption and text
amended June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (d)
adopted July 18, 2001 to be effective November 1, 2001; paragraph (c) amended September 14,
2004 to be effective immediately; paragraph (a) amended July 27, 2006 to be effective
September 1, 2006; paragraph (b) amended__________, 2010 to be effective________, 2010.
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II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Proposed Amendment to R. 6:1-2 – Monetary Limits Increase
During the 2006-2008 term, the Committee discussed the possibility of raising the
monetary limits for small claims and regular Special Civil Part cases. At the request of the
Chair, staff had researched the effect of inflation on those limits and reported back to the
Committee. The results of that research are set forth below in an excerpt taken from the
Committee’s 2008 Report to the Supreme Court (pages 40-41). In 2008 the Committee
concluded that there should be no increase in the limits at that time because of the recent large
increases in the volume of collection cases and the fact that the current monetary limits were still
within the boundaries set in 1994 when adjusted for inflation.
Those two factors retain their validity today. In fact, contract filings increased from
Court Year 2007 to 2008 by an even greater margin than had been predicted in the Committee’s
2008 Report; the projection was for a 20% increase, from 299,438 to 361,647, while the actual
number of filings for 2008 turned out to be 383,154, which represents an increase of 28% over
2007. The number of contract filings in Court Year 2009 came to 378,068, which is 1% less
than 2008, but still a 26% increase over 2007. This indicates that the higher level of contract
filings will be sustained and was not a one-time phenomenon. After a lengthy discussion this
Committee decided, by a vote of 14-5, with one abstention, not to recommend any increase in the
current monetary limits. The excerpt from the Committee’s 2008 Report follows.
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EXCERPT FROM 2008 REPORT OF THE SPECIAL CIVIL PART PRACTICE
COMMITTEE TO THE SUPREME COURT – PAGES 40-41
The Committee discussed the possibility of raising the monetary limits for small claims
and regular Special Civil Part cases. The Chair asked staff to research the effect of inflation on
those limits and report back to the Committee.
A history of the Special Civil Part monetary limits over the last quarter century shows the
following progression:
Year Regular SCP Limit Small Claims Limit
1981 $5,000.00 $1,000.00
1992 $7,500.00 $1,500.00
1994 $10,000.00 $2,000.00
2002 $15,000.00 $3,000.00
Note that the ratio of the two limits has always been maintained at 5 to 1.
Taking into account changes in the Consumer Price Index for Urban Wage Earners and
Clerical Workers, published by U.S. Department of Labor’s Bureau of Labor Statistics for New
York City and Northeastern New Jersey, the cost of living increased by 17.8% between
September 2002 (the last time the Special Civil Part monetary limits were raised) and September
2007. This would appear to justify an increase in the monetary limits from $15,000.00 to
$17,600.00 and from $3,000.00 to $3,534.00 for regular Special Civil Part cases and small
claims, respectively.
Taking a look at inflation from a longer perspective, however, raises the question of
whether such a change would be appropriate at this time. The value of the 1994 limits
($10,000.00 and $2,000.00) was $12, 030.00 and $2,406.00 in 2002, and those values projected
to September 2007 come out at $14,171.00 and $2874.00, respectively. This indicates that we
have not yet exceeded the 1994 limits when they are adjusted for inflation.
An examination of changes in the contracts caseload since 2002 suggests a need for
caution when considering another increase in the monetary limits. The chart below indicates that
the contracts caseload increased by 20% in Court year 2003, which is when the last monetary
limit increase took effect. Between Court Year 2003 and Court Year 2007 there was another
20% increase in the caseload, despite a 12% decline in 2005. For Court Year 2008 the AOC has
figures for the first 5 months and when they are projected for the entire year we can expect
another 20% increase in the contacts caseload. Note: When that 5 month period is compared to
the same period in Court Year 2006, we see an increase of almost 27%.
The most recent contract caseload increase may be due to the confluence of an economic
slowdown and changes in the bankruptcy laws that preclude discharge of the debts that now
appear in the contracts caseload. Whatever the cause, we know from past experience that an
increase in the Special Civil Part monetary limits results in a significant increase in the caseload.
18
This, coupled with the fact that we have not yet exceeded the 1994 monetary limits (when
adjusted for inflation) suggests that this would not be a good time to raise the monetary limits
again. Note that while the volume of tenancy actions and small claims has remained relatively
static over the years, these cases and the greatly increased number of contract cases are being
handled by 30% fewer staff than the Special Civil Part had in 1994. During the next Term, the
Committee plans to explore the possibility of raising the limits for collection actions and small
claims, neither of which involves the extent of discovery required for tort actions.
Court Year Contract Filings % Increase
2002 208,259 ---
2003 249,934 20%
2004 269,989 8%
2005 236,670 -12%
2006 270,692 14%
2007 299,438 11%
2008 361,647* 20%*
*Projections based on contract filings during the first 5 months of Court Year 2008
19
B. Proposed Amendment to Appendix XI-X – Verified Tenancy Complaint
The Committee considered correspondence between AOC Staff and an attorney regarding
the clarity (or asserted lack thereof) in paragraph 9A and a problem with paragraph 9B of the
Verified Complaint – Non payment of Rent form contained in Appendix XI-X to the Rules. It
was noted during the discussion of this item that the language of the Verified Complaint had
been crafted through a lengthy process of discussion that included this Committee, the
Committee of Special Civil Part Supervising Judges and the Special Civil Part Management
Committee. It was also noted that the request for more clarity was not specific as to what
changes should be made to achieve that goal. The Committee decided to take no further action
on the matter.
20
C. Proposed Amendments to Appendix XI-J – Wage Execution
The Committee considered correspondence between the Acting Administrative Director
of the Courts, and an attorney who proposed amending the model Wage Execution form, set
forth in Appendix XI-J to the Rules, to make clear that the judge has discretion to order that an
amount less than 10% be withheld from the judgment-debtor’s earnings. In his view, the current
form implies that the court has no discretion to order an amount less than 10% and he pointed out
that there is no such provision in N.J.S.A. 2A:17-56, the statute that authorizes wage withholding
to satisfy civil judgments. In discussing the question, the Committee had before it copies of the
Wage Execution form and the statute. Some members favored the proposal, while others
opposed it. Ultimately the Committee decided to recommend no further action, principally
because both the Notice of Application for Wage Execution and the Execution itself make clear
that the judgment-debtor has a continuing right to object to the execution and request a reduction,
even after the judge has signed the order. Moreover, there simply was no basis to conclude that
the judges who handle these matters are not familiar with the law that governs them.
21
D. Proposed Amendment to R. 6:6-6 - Provision of Notice to Judgment
Creditors of Applications for Post-Judgment Relief From Levies
A member of the Committee complained that judgment-creditors often do not get
adequate notice of applications for relief from levies to be able to appear and protect their
clients’ rights. The attorney suggested that there should be a requirement of 48 hours notice or
that a hearing be held on the judgment-debtor’s application at 3:00 p.m. on the date of
application. This would require an amendment to R. 6:6-6 which governs post-judgment
applications for relief in tenancy actions and to claims of exemption from levy in other Special
Civil Part actions. Because applications brought pursuant to the rule are emergent in nature, the
Committee felt that there should be no time barrier to immediate relief, assuming that the rights
of all parties to the litigation are protected, and decided to refer the matter to the Committee of
Special Civil Part Supervising Judges for further discussion.
22
E. Proposed Amendment to R. 6:7-2(a) – Elimination of Requirement to Show
Good Cause for Issuance of Order to Take Post Judgment Discovery
The Committee considered a request from a member of the Civil Practice Committee for
an amendment to R. 6:7-2(a) that would either remove any "good cause" requirement from the
rule or set forth in the rule that the existence of an unpaid judgment is sufficient "good cause" for
the court to order supplementary proceedings to discover assets that could be used to satisfy a
judgment. The Committee concluded that it is up to the judge to decide on a case by case basis
what set of circumstances constitute good cause to warrant entry of an order for supplementary
proceedings and thus rejected the proposed amendments.
23
F. Proposed Amendments to Rule 6:7-2 and Appendices XI-M and XI-O -
“Shall” vs. “May”
This Committee considered correspondence from one of its mambers and a member of
the Supreme Court Civil Practice Committee on behalf of the New Jersey Creditors Bar
Association, complaining that some judges routinely modify orders to enforce litigant’s rights by
changing the word “shall” to “may,” in reference to the issuance of a warrant for arrest if the
target of a post-judgment information subpoena fails to obey the court’s order. They pointed out
that R. 6:7-2(f) mandates the use of the form of order set forth in Appendix XI-O and that the
form uses the term “shall.” The end result, they said, is the development of local practices and
they proposed the addition of a paragraph (j) to the rule that would make the relaxation rule (R.
1:1-2) inapplicable to R. 6:7-2(d) through (i) and the forms set forth in Appendices XI-M
through XI-Q.
This Committee was advised that the Civil Practice Committee had tentatively approved
proposed amendments to Appendices XI-M (Notice of Motion for Order Enforcing Litigant’s
Rights) and XI-O (Order to Enforce Litigant’s Rights) that would change the word “shall” to
“may” in reference to whether a warrant will issue and attorney’s fees be awarded if the
respondent fails to comply with the order. The Civil Practice Committee was waiting for advice
from this Committee before deciding whether to recommend the changes to the Supreme Court.
This Committee had before it copies of the proposed amendments being considered by the Civil
Practice Committee.
During this Committee’s discussion it was pointed out that while the form of the order set
forth in Appendix XI-O uses the word “shall,” and while use of the form is mandatory under R.
6:7-2(f), there are occasions on which a judge would, in the exercise of his or her discretion,
substitute the word “may” for “shall” as, for example, when the target of the order is known to be
24
an 85-year old with a heart condition. It was thus clear that the rule should not be modified so as
to preclude the court’s ability to relax the rule pursuant to R. 1:1-2. On the other hand, it was
also apparent to the Committee that such a change to the form of the order in every case or on a
regular and routine basis would both (1) weaken the perception of the court’s determination to
compel answers to the questions in the information subpoena and (2) lead to inconsistent
practices from county to county. It should also be clear that the use of the word “shall” in the
prescribed form of the Notice of Motion for Order Enforcing Litigant’s Rights (Appendix XI-M)
simply tells the judgment-debtor what relief the creditor is seeking. The Order to Enforce
Litigant’s Rights (Appendix XI-O) tells the judgment-debtor what ultimately will happen if s/he
continues to defy the subpoena and the court’s order to comply with it. In no way does use of
the word “shall” in the two Appendices impair the discretion of the judge to refuse to sign the
arrest warrant when asked to do so.
One of the members of this Committee, who is a judge, stated that in the past he had
often substituted the word “may” for the imperative “shall,” but stopped the practice after
carefully re-reading the rule and the forms provided for its enforcement in the Appendices to the
Rules, the use of which is mandated by the Supreme Court. Considering the text of R. 6:7-2 and
the implementing Appendices in their entirety, he concluded that the protections built into the
mechanism for the judgment-debtor were so extensive that by the time the arrest warrant is
actually issued it is indeed the last resort to force compliance with the information subpoena and
the court’s order to enforce it. These protections include:
(1) A statement in the required form of the Information Subpoena itself (Appendix XI-L)
warning the judgment-debtor that failure to comply with it “may result in your arrest and
incarceration.”
(2) A requirement in R. 6:7-2(c) that the Information Subpoena be served personally or
simultaneously by regular and certified mail return-receipt-requested.
25
(3) Requirements in R. 6:7-2(e) that the notice of motion to enforce litigant’s rights (a) be in
the form set forth in Appendix XI-M, (b) warn the debtor that s/he may be arrested and held until
s/he has complied with the Information Subpoena, (c) state that a court appearance can be
avoided by compliance with the Information Subpoena and (d) be served either personally or
simultaneously by regular and certified mail return-receipt-requested.
(4) Requirements in R. 6:7-2(f) that the order to enforce litigant’s rights be in the form set
forth in Appendix XI-O, be served personally or simultaneously by regular and certified mail
return-receipt-requested and warn the debtor that upon failure to comply with the Information
Subpoena within 10 days, “the court will issue an arrest warrant.”
(5) Requirements in R. 6:7-2(g) that in order to get an arrest warrant the judgment-creditor
must certify that the debtor has not complied with the order to enforce litigant’s rights, that the
warrant be executed only between the hours of 7:30 a.m. and 3:00 p.m. on a day when court is in
session, that if the debtor was served with the notice of motion and order by mail the warrant
must be executed only at the address to which they were sent and that the debtor be brought
before a judge forthwith and released immediately upon completion of the Information
Subpoena.
For these reasons the Committee member who had originally suggested the modification
to circumscribe the court’s discretion moved to recommend that the rule and forms be left as they
are. The motion was seconded by a representative of Legal Services of New Jersey (LSNJ) and
the motion was adopted by a vote of 19 in favor and one abstention.
It should be noted that the reasoning of the Special Civil Part Practice Committee in
originally proposing this enforcement mechanism is explained in the Committee’s 1992 Report
to the Supreme Court at pages 51 – 59 and 101-122. An excerpt containing those pages is
attached as an appendix to this Report.
26
III. OTHER RECOMMENDATIONS - NONE
27
IV. LEGISLATION - NONE
28
V. MATTERS HELD FOR CONSIDERATION
A. Use of Credit Cards to Pay Fees and Post Deposits
The Committee endorses the idea of permitting the payment of filing fees and posting of
deposits by credit card but recognizes that formulation of the language for the rule change should
await completion of the AOC’s work on this project. Staff informed the Committee that the
Information Technology Office, Office of Management Services and the Civil Practice Division
of the Office of Trial Court Services are already deeply involved in this project.
29
B. “Shotgun” Bank Levies
The Committee discussed the practice of some Special Civil Part Officers using a
“shotgun” approach by serving copies of writs of execution on a number of banks, not knowing
whether the judgment-debtor in fact has an account at any of them. The Committee asked for
advice from the Conference of Civil Division Managers, the Special Civil Part Management
Committee (composed of the Assistant Civil Division Managers responsible for running the
clerks’ offices in the counties) and the Committee of Special Civil Part Supervising Judges as to
the extent of the practice and the problems, if any, that it raises. The Supervising Judges will
discuss the matter at their February meeting and this Committee will then transmit its
recommendations to the Supreme Court in the form of a supplemental report.
30
C. Proposed Amendment to R. 6:7-2(b)(2) - Eliminate Requirement of Serving
Defendant With Information Subpoena Before Serving Banks
A member of the Committee, has proposed an amendment to R. 6:7-2(b)(2) that would
eliminate the requirement, presently in the rule, of serving a judgment debtor with an information
subpoena and getting no response, before the judgment-creditor can serve an information
subpoena on a bank to find out if the debtor has an account there. The Committee will report on
this proposal in its supplemental report to the Supreme Court.
31
VI. CONCLUSION
The members of the Supreme Court Committee on Special Civil Part Practice appreciate
the opportunity to have served the Supreme Court in this capacity.
Respectfully submitted,
Hon. Joseph R. Rosa, J.S.C., Chair
Mary Braunschweiger, Civ. Div. Mgr.
Felipe Chavana, Esq.
I. Mark Cohen, Esq.
Gregory G. Diebold, Esq.
JoAnn Ezze, Asst. Civ. Div. Mgr.
Gerard J. Felt, Esq.
Eric H. Fields, Court Officer
Lloyd Garner, Esq., Asst. Civ. Div. Mgr.
Joanne Gottesman
Linda G. Hampton, Esq.
Hon. John E. Harrington, J.S.C.
Kennon Jenkins
Hon. Fred H. Kumpf, J.S.C.
Adolfo L. Lopez, Esq.
David G. McMillin, Esq.
Jonathan Mehl, Esq.
Raymond F. Meisenbacher, Jr., Esq.
Hon. David W. Morgan, J.S.C.
Anshu Pathak, Esq.
W. Peter Ragan, Sr., Esq.
Daniel I. Rubin, Esq.
Stephen E. Smith, Esq.
Hon. Jerome M. St. John, J.S.C.
William A. Thompon, II, Esq.
Andrew R. Wolf, Esq.
Robert J. Piscopo, AOC Staff
Robert D. Pitt, Esq., AOC Staff
APPENDIX – Excerpts From 1992 Report of the Special Civil Part
Practice Committee to the Supreme Court (Pages 51-59 and 101-122)
32
51
M. Proposed Amendments to R. 6:7-2--Administration of
Oath During Post-Judgment Discovery Proceedings;
Enforcement of Discovery Orders and Information
Subpoenas
The Committee proposes two kinds of amendments to
R. 6:7-2, which deals with post-judgment orders for discovery
and information subpoenas. The first is a simple amendment to
R. 6:7-2(a) that will make clear that the attorney for the
judgment-creditor can administer the oath to the judgmentdebtor
who has been ordered to appear for post-judgment
discovery. The second category of amendments deals with the
enforcement of discovery orders and information subpoenas,
which the Committee has found to be increasingly troublesome.
Enforcement problems may be increasing because more creditors,
including those who proceed pro se, are using post-judgment
discovery since the information subpoena became available in
1990. Whatever the cause, the Committee proposes a comprehensive
overhaul and codification of the enforcement procedures.
Rule 6:7-2(c) provides, in pertinent part, that "...the
failure to comply with an information subpoena shall be
treated as a failure to comply with an order for discovery
entered in accordance with paragraph (a) of this rule." The
question then arises as to whether the judgment creditor
should seek to enforce litigant's rights pursuant to R. 1:10-5
by way of order to show cause or motion. Papers submitted to
52
the Committee by one attorney, who is a member, indicated that
he uses the motion procedure. The Special Civil Part Clerk's
office in Atlantic County, on the other hand, supplies a form
petition for an order to show cause, together with a form of
order, to the litigant whose information subpoena has been
unanswered. In a letter and memorandum to the Committee,
another member contended that the proper procedure is by way
of motion. Others use the order to show cause.
The Committee concluded that either procedure is permitted
by the applicable court rule, Supreme Court opinion and
according to other published authorities on the subject.
Rule 1:6-2 states that "[a]n application to the court for an
order shall be by motion, or in special cases, by order to
show cause." The Supreme Court stated, in N.J. Dept. of
Health v. Roselle, 34 N.J. 331, 343 (1961), that either
procedure can be used by a litigant seeking supplemental
relief in a civil matter. The same conclusion is reached in
4A N.J. Practice (Walzer, Civil Practice Forms) 4th ed.,
1991) § 84.2 at 438. The skills training course materials
distributed to new attorneys in 1976-77 advocated use of the
order to show cause procedure. See: Nudelman and Rosenberg,
Collection Practice in New Jersey (I.C.L.E., 1976) at pp.
31-35.
The real question, if either procedure is permissible, is
which is best for accomplishing the purpose of the discovery
53
order and information subpoena while promoting the efficient
handling of the applications for supplemental relief. Another
question is the type of notice to the debtor, mail or personal
service, that the court will require before issuing an arrest
warrant; most judges require personal service so as to ensure
that notice and an opportunity to be heard are given before a
judgment-debtor is deprived of liberty for however brief a
period of time.
These questions arise in a context of one year's experience
with the information subpoena. One attorney reported
that of 100 cases in which he used the subpoena, 3 defendants
answered the questions, 4 defendants moved and 93 made no
response. The 93 cases were all brought to the court's
attention by orders to show cause and this meant that a judge
had to read the papers and sign the order in each and every
case. The volume raises questions regarding the effectiveness
of the information subpoena and the administrative burden for
the court. The Committee concluded that certain steps could
be taken to increase the likelihood of compliance with the
information subpoena.
First, the Committee decided that the information subpoena
itself, contained in Appendix XI-K to the Rules, should
contain words warning the debtor that failure to comply may
result in the debtor's arrest and incarceration. The warning
should be placed at the top of the subpoena in bold letters.
54
The form of the subpoena, as amended, is set forth in Section
III of this Report.
Second, the Committee decided that R. 6:7-2 should be
amended, by adding a new subparagraph (d), to specify that the
motion procedure, rather than the order to show cause, should
be used when a debtor fails to answer the subpoena and the
creditor seeks to enforce litigant's rights. The motion procedure
should also be used to enforce discovery orders in the
Committee's view. This will avoid the court's involvement at
the earliest stage of the enforcement procedure and defer such
involvement to a point, hopefully, after the debtor has
complied with the subpoena or discovery order and the involvement
is no longer required. The motion procedure in this
context requires a return day and this will be an exception to
the general motion practice under R. 6:3-3(c). The Committee
felt the motion should be returnable no sooner than 10 days
following service and filing so that there is adequate time
for the debtor to comply with the subpoena or order in
response to the notice of motion. Note that in the case of an
information subpoena, the debtor can avoid a court appearance
by furnishing answers to the subpoena at least 3 days before
the return date.
Third, the Committee believes that the current confusion
surrounding the enforcement procedure can be attenuated by
specifying in the rule the contents of the notice of motion,
55
the resulting order and the eventual arrest warrant and by
prescribing mandatory forms for each in the Appendices to the
Rules. Particularly, the new subparagraph (d) requires the
notice of motion to advise the debtor that if she or he fails
to appear on the return date of the motion, an order for his
or her arrest will be sought, together with an order to pay
the creditor's attorney fees in connection with the motion to
enforce litigant's rights. A new subparagraph (e) prescribes
the contents of an order, to be entered in the event that the
debtor fails to appear on the return date, for the debtor's
arrest, without further notice, if he or she fails to comply
with the discovery order or information subpoena within 10
days. A new subparagraph (f) provides for the issuance of an
arrest warrant in the event of further non-compliance, which
is to be executed between the hours of 7:30 a.m. and 3:00 p.m.
on a court day. For good cause shown, the warrant may be
executed at another time subject to such terms as the court
directs. Further, to ensure due process, if the motion and
order for arrest were served by mail, the arrest warrant can
be executed only at the address to which they were sent.
The proposed rule amendments follow. The mandatory forms
are set forth in Section III of this Report.
56
6:7-2.Orders for Discovery; Information Subpoenas
(a) Order for Discovery. The court may, upon the filing
by the judgment creditor or a successor in interest (if that
interest appears of record) of a petition verified by the
judgment creditor or the creditor's agent or attorney stating
the amount due on the judgment, make an order, upon good cause
shown, requiring any person who may possess information
concerning property of the judgment debtor to appear before
the attorney for the judgment creditor or any other person
authorized to administer an oath and make discovery under oath
concerning said property at a time and place therein specified.
The location specified shall be in the county where the
judgment debtor lives or works.
No more than one appearance of any such person may be
required without further court order. The time and place
specified in the order shall not be changed without the
written consent of the person to be deposed or upon further
order of the court.
(b) ...no change
(c) ...no change
(d) Enforcement by Motion. Proceedings to enforce
litigant's rights pursuant to R. 1:10-5, when a judgmentdebtor
fails to obey an order for discovery or an information
subpoena, shall be commenced by notice of motion supported by
affidavit or certification. The notice of motion and certifi
57
cation shall be in the form set forth in Appendices XI-L and
M to these Rules. The notice of motion shall contain a return
date and shall be served on the judgment-debtor and filed with
the clerk of the court not later than 10 days before the time
specified for the return date. The moving papers shall be
served on the judgment-debtor either in person or simultaneously
by regular and certified mail, return receipt
requested. The notice of motion shall state that the relief
sought will include an order:
(1) adjudicating that the judgment-debtor has violated
the litigant's rights of the judgment-creditor by failing to
comply with the order for discovery or information subpoena,
(2) compelling the judgment-debtor to immediately
furnish answers as required by the order for discovery or
information subpoena,
(3) directing that if the judgment-debtor fails to
appear in court on the return date or to furnish the required
answers, he or she shall be arrested and confined to the
county jail until he or she has complied with the order for
discovery or information subpoena,
(4) directing the judgment-debtor, if he or she fails to
appear in court on the return date, to pay the judgmentcreditor's
attorney fees, if any, in connection with the
motion to enforce litigant's rights, and
(5) granting such other relief as may be appropriate.
58
The notice of motion shall also state, in the case of an
information subpoena, that the court appearance may be avoided
by furnishing to the judgment-creditor written answers to the
information subpoena and questionnaire at least 3 days before
the return date.
(e) Order for Arrest. If the judgment-debtor has failed
to appear in court on the return date and the court enters an
order for his or her arrest, it shall be in the form set forth
in Appendix XI-N to these Rules and shall state that upon the
judgment-debtor's failure, within 10 days of the certified
date of mailing or personal service of the order, to comply
with the information subpoena or discovery order, the court
will issue a warrant for his or her arrest. The judgmentcreditor
shall serve a copy of the signed order upon the
judgment-debtor either personally or by mailing it simultaneously
by regular and certified mail, return receipt
requested. The date of mailing or personal service shall be
certified on the order.
(f) Warrant for Arrest. Upon the judgment-creditor's
certification, in the form set forth in Appendix XI-O to these
Rules, that a copy of the signed order for arrest to enforce
litigant's rights has been served upon the judgment-debtor as
provided in this rule, that 10 days have elapsed and that
there has been no compliance with the information subpoena or
discovery order, the court may issue an arrest warrant. The
59
warrant shall be in the form set forth in Appendix XI-P to
these Rules and, except for good cause shown and upon such
other terms as the court may direct, shall be executed by a
Special Civil Part Officer or Sheriff only between the hours
of 7:30 a.m. and 3:00 p.m. on a day when the court is in
session. If the notice of motion and order for arrest were
served on the judgment-debtor by mail, the warrant may be
executed only at the address to which they were sent. In all
cases the arrested judgment-debtor shall promptly be brought
before a judge of the Superior Court and released upon
compliance with the order for discovery or information
subpoena.
Note: Source -- R.R. 7:11-3(a)(b), 7:11-4. Paragraph
(a) amended June 29, 1973 to be effective September 10, 1973;
paragraph (a) amended July 17, 1975 to be effective September
8, 1975; amended July 21, 1980 to be effective September
8, 1980; caption amended, paragraph (a) caption and text
amended, paragraph (b) adopted and former paragraph (b)
amended and redesignated as paragraph (c) June 29, 1990 to be
effective September 4, 1990; paragraph (a) amended and
paragraphs (d)(e) and (f) adopted to be
effective .
101
F. Proposed Revision of Appendix XI-K--Information
Subpoena and Written Questions
The Committee proposes in Section I. M. of this Report to
amend R. 6:7-2 so as to improve the procedures for enforcing
discovery orders and information subpoenas. This effort also
involves the revision of the information subpoena itself so as
to advise judgment-debtors in large print at the top of the
form that failure to comply with the subpoena may result in
the debtor's arrest and incarceration. At the same time, the
Committee perceives a two-fold need to revise the written
questions attached to the subpoena.
First, the questions addressed to an individual judgmentdebtor
need to cover personalty in greater detail if there is
a possibility of later seeking to enforce a lien against
realty. Two New Jersey bankruptcy cases were brought to the
attention of the Committee in which levies on real estate were
successfully attacked because the interrogatories served on
the debtor did not inquire as to the debtor's cash on hand and
ownership of furniture, appliances and other household goods.
See Kellman v. Palese (In re Italiano), 66 Bankr. 468 (Bankr.
D. N.J. 1986) and Genz v. Hallmark Cards, Inc. (In re
Silverman), 6 Bankr. 991, 995-96 (D. N. J. 1980). The
additional questions proposed by the Committee would require
the judgment-debtor to list cash on hand and details regarding
other personal property, but only if the debtor owns real
102
estate and has cash and other personalty worth more than the
statutory exemption of $1,000.
Second, the present questions do not adequately inquire
about the finances and assets of judgment-debtors who happen
to be corporations, partnerships or other business entities.
The Committee proposes a set of 18 questions for this purpose,
which will be denominated "Questions for Business Entity."
The original questions, augmented as explained above, will be
called "Questions for Individuals." The judgment-creditor
will select the set that is appropriate for the particular
case.
The revised information subpoena, questions for
individual and questions for business entity follow. Together
they will comprise Appendix XI-K to the Rules.
103
APPENDIX XI-K
INFORMATION SUBPOENA AND WRITTEN QUESTIONS
IMPORTANT NOTICE - PLEASE READ CAREFULLY
FAILURE TO COMPLY WITH THIS INFORMATION SUBPOENA
MAY RESULT IN YOUR ARREST AND INCARCERATION
NAME:
ADDRESS:
TELEPHONE NO.:
Attorneys for:
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: SPECIAL CIVIL PART
Plaintiff, COUNTY
-vs- DOCKET NO.
Defendant, CIVIL ACTION
INFORMATION SUBPOENA
THE STATE OF NEW JERSEY, to:
Judgment has been entered against you in the Superior Court of
New Jersey, Law Division, Special Civil Part, County,
on , 19 , in the amount of $ plus costs,
of which $ together with interest from , 19 ,
remains due and unpaid.
Attached to this Information Subpoena is a list of questions
that court rules require you to answer within 14 days from the date
you receive this subpoena. If you do not answer the attached
questions within the time required, the opposing party may ask the
court to conduct a hearing in order to determine if you should be
held in contempt. You will be compelled to appear at the hearing
and explain your reasons for your failure to answer.
If this judgment has resulted from a default, you may have the
right to have this default judgment vacated by making an
appropriate motion to the court. Contact an attorney or the clerk
of the court for information on making such a motion. Even if you
dispute the judgment you must answer all of the attached questions.
104
You must answer each question giving complete answers,
attaching additional pages if necessary. False or misleading
answers may subject you to punishment by the court. However, you
need not provide information concerning the income and assets of
others living in your household unless you have a financial
interest in the assets or income. Be sure to sign and date your
answers and return them to the address in the upper left hand
corner within 14 days.
Dated: , 19
_______________________________
Attorney for Clerk
105
QUESTIONS FOR INDIVIDUALS
1. Full name ____________________________________________________
2. Address ______________________________________________________
3. Birthdate ____________________________________________________
4. Social Security # ____________________________________________
5. Driver's license # and expiration date _______________________
______________________________________________________________
6. Telephone # __________________________________________________
7. Full name and address of your employer _______________________
______________________________________________________________
(a) Your weekly salary: Gross Net __________
(b) If not presently employed, name and address of last
employer. _______________________________________________
_________________________________________________________
8. Is there currently a wage execution on your salary?
Yes No _____
9. List the names, addresses and account numbers of all bank
accounts on which your name appears.
10. If you receive money from any of the following sources, list
the amount, how often, and the name and address of the source:
Type Amount & Frequency Name & Address of Sources
Alimony
Loan Payments
Rental Income
Pensions
Bank Interest
Stock Dividends
106
11. Do you receive Social Security benefits?
Yes No _____
12. Do you own the property where you reside?
Yes No If yes, state the following:
(a) Name of the owner or owners _____________________________
(b) Date property was purchased _____________________________
(c) Purchase price __________________________________________
(d) Name and address of mortgage holder __________________________
______________________________________________________________
(e)Balance due on mortgage ________________________________________
13.Do you own any other real estate?
Yes No If yes, state the following
for each property:
(a) Address of property _____________________________________
(b) Date property was purchased _____________________________
(c) Purchase price __________________________________________
(d) Name and address of all owners________________________________
______________________________________________________________
(e) Name and address of mortgage holder __________________________
______________________________________________________________
(f) Balance due on mortgage ______________________________________
______________________________________________________________
(g) Names and address of all tenants and monthly rental paid
by each tenant _______________________________________________
______________________________________________________________
107
14. If you answered "yes" to either question 12 or 13, does the
present value of your personal property, which includes
automobiles, furniture, appliances, stocks, bonds, and cash on
hand, exceed $1,000?
Yes No If the answer is "yes,"
you must itemize all
personal property owned by
you.
Cash on hand: $ _______
Other personal property: (Set forth make, model and serial
number. If financed, give name and address of party to whom
payments are made).
If Financed
Date Purchase Balance Still Present
Item Purchased Price Due Value
15. Do you own a motor vehicle?
Yes No If yes, state the
following for each vehicle owned:
(a) Make, model and year of motor vehicle
(b) If there is a lien on the vehicle, state the name and
address of the lienholder and the amount due to the
lienholder
(c) License plate #
(d) Vehicle identification #
16. Do you own a business?
Yes No If Yes, state the
following:
108
(a) Name and address of the business ________________________
_________________________________________________________
(b) Is the business a Corporation , sole proprietorship
_____ or partnership ?
(c) The name and address of all stockholders, officers and/or
partners ________________________________________________
_________________________________________________________
(d) The amount of income received by you from the business
during the last twelve months ___________________________
_________________________________________________________
17. Set forth all other judgments that you are aware of that have
been entered against you and include:
Creditor's Creditor's Amount Name of
Name Attorney Due Court Docket #
I hereby certify that the foregoing statements made by me are
true. I am aware that if any of the foregoing statements made by
me are willfully false, I am subject to punishment.
Date: ____________________________________
109
QUESTIONS FOR BUSINESS ENTITY
1. Name of business including all trade names. __________________
______________________________________________________________
2. Addresses of all business locations. _________________________
______________________________________________________________
3. If the judgment-debtor is a corporation, the names and
addresses of all stockholders, officers and directors.
______________________________________________________________
______________________________________________________________
______________________________________________________________
4. If a partnership, list the names and addresses of all
partners.
______________________________________________________________
______________________________________________________________
______________________________________________________________
5. If a limited partnership, list the names and addresses of all
general partners.
______________________________________________________________
______________________________________________________________
______________________________________________________________
6. Set forth in detail the name, address and telephone number of
all businesses in which the principals of the judgment-debtor
now have an interest and set forth the nature of the interest.
______________________________________________________________
______________________________________________________________
7. For all bank accounts of the judgment-debtor business entity,
list the name of the bank, the bank's address, the account
number and the name in which the account is held.
______________________________________________________________
______________________________________________________________
110
8. Specifically state the present location of all books and
records of the business, including checkbooks. _______________
______________________________________________________________
9. State the name and address of the person, persons, or entities
who prepare, maintain and/or control the business records and
checkbooks. __________________________________________________
______________________________________________________________
10. List all physical assets of the business and their location.
If any asset is subject to a lien, state the name and address
of the lienholder and the amount due on the lien.
______________________________________________________________
______________________________________________________________
______________________________________________________________
11. Does the business own any real estate? Yes______ No ______
If yes, state the following for each property:
(a) Name(s) in which property is owned ______________________
(b) Address of property _____________________________________
(c) Date property was purchased _____________________________
(d) Purchase price __________________________________________
(e) Name and address of mortgage holder ____________________
________________________________________________________
(f) Balance due on mortgage _________________________________
(g) The names and addresses of all tenants and monthly
rentals paid by each tenant.
NAME AND ADDRESS OF TENANT MONTHLY RENTAL
111
12. List all motor vehicles owned by the business, stating the
following for each vehicle:
(a) Make, model and year ___________________________________
________________________________________________________
(b) License plate number ___________________________________
(c) Vehicle identification number __________________________
(d) If there is a lien on the vehicle, the name and address
of the lienholder and the amount due on the lien
________________________________________________________
________________________________________________________
13. List all accounts receivable due to the business, stating the
name, address and amount due on each receivable.
NAME AND ADDRESS AMOUNT DUE
14. For any transfer of business assets that has occurred within
six months from the date of this subpoena, specifically
identify:
(a) The nature of the asset _________________________________
_________________________________________________________
(b) The date of transfer ____________________________________
(c) Name and address of the person to whom the asset was
transferred _____________________________________________
_________________________________________________________
(d) The consideration paid for the asset and the form in
which it was paid (check, cash, etc.) ___________________
_________________________________________________________
112
(e) Explain in detail what happened to the consideration paid
for the asset ___________________________________________
_______________________________________________________
15. If the business is alleged to be no longer active, set forth:
(a) The date of cessation ___________________________________
(b) All assets as of the date of cessation __________________
_________________________________________________________
(c) The present location of those assets ____________________
_________________________________________________________
(d) If the assets were sold or transferred, set forth:
(1) The nature of the assets __________________________
___________________________________________________
(2) Date of transfer __________________________________
(3) Name and address of the person to whom the assets
were transferred __________________________________
___________________________________________________
(4 )The consideration paid for the assets and the form
in which it was paid ______________________________
___________________________________________________
(5) Explain in detail what happened to the consideration
paid for the assets _________________________
___________________________________________________
16. Set forth all other judgments that you are aware of that have
been entered against the business and include the following:
Creditor's Creditor's Amount Name of Docket
Name Attorney Due Court Number
113
17. For all litigation in which the business is presently
involved, state:
(a) Date litigation commenced _______________________________
(b) Name of party who started the litigation ________________
_________________________________________________________
(c) Nature of the action ____________________________________
_________________________________________________________
(d) Names of all parties and the names, addresses and telephone
numbers of their attorneys ________________________
_________________________________________________________
_________________________________________________________
(e) Trial date ______________________________________________
(f) Status of case __________________________________________
(g) Name of the court and docket number _____________________
_________________________________________________________
18. State the name, address and position of the person answering
these questions. _____________________________________________
______________________________________________________________
I hereby certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: __________________ ____________________________________
114
G. Proposed Appendices XI-L, M, N, O, P--Mandatory
Forms for Enforcing Discovery Orders and Information
Subpoenas
As explained in Sections I. M. and III. F. of this
Report, the Committee proposes to amend R. 6:7-2 and revise
the information subpoena so as to improve the procedures for
enforcing both the subpoena and orders for discovery. The
Committee is recommending that a motion procedure be
prescribed for this purpose, rather than an order to show
cause procedure, and the proposed amendments to R. 6:7-2 refer
to forms which the Committee feels should be mandatory. The
amendments to R. 6:7-2 and the forms are discussed in detail
in Section I. M. of this Report. The forms would be set forth
in the Appendices to the Rules as follows:
Appendix XI-L Notice of Motion for Order Enforcing
Litigant's Rights
Appendix XI-M Certification In Support of Motion for
Order Enforcing Litigants Rights
Appendix XI-N Order for Arrest
Appendix XI-O Certification In Support of Application
for Arrest Warrant
Appendix XI-P Warrant for Arrest
The proposed appendices follow.
115
APPENDIX XI-L
NOTICE OF MOTION FOR ORDER ENFORCING LITIGANT'S RIGHTS
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
Notice of Motion for Order
, Defendant Enforcing Litigant's Rights
PLEASE TAKE NOTICE that on ____________, 19__ at ______ __.m.,
I will apply to the above-named court, located at ________________
________________________________________, New Jersey, for an Order:
(1) Adjudicating that you have violated the litigant's rights of
the plaintiff by failure to comply with the (check one) 􀂆
order for discovery, 􀂆 information subpoena served upon you;
(2) Compelling you to immediately furnish answers as required by
the (check one) 􀂆 order for discovery, 􀂆 information subpoena;
(3) Directing that, if you fail to appear in court on the date
written above, you shall be arrested by an Officer of the
Special Civil Part or the Sheriff and confined in the county
jail until you comply with the (check one) 􀂆 order for
discovery, 􀂆 information subpoena;
(4) Directing that, if you fail to appear in court on the date
written above, you shall pay the plaintiff's attorney fees in
connection with this motion;
(5) Granting such other relief as may be appropriate.
If you have been served with an information subpoena, you may avoid
having to appear in court by sending written answers to the questions
attached to the information subpoena to me no later than
three (3) days before the court date.
I will rely on the certification attached hereto.
Date: _______________________ __________________________
Attorney for Plaintiff or
Plaintiff, Pro Se
116
APPENDIX XI-M
CERTIFICATION IN SUPPORT OF MOTION FOR ORDER
ENFORCING LITIGANT'S RIGHTS
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
Certification In Support of Motion
, Defendant for Order Enforcing Litigant's Rights
The following certification is made in support of plaintiff's
motion for an order enforcing litigant's rights:
1. I am the plaintiff or plaintiff's attorney in this matter.
2. On _____________, 19__, plaintiff obtained a judgment against
the defendant ___________________________________________ for
$ _______________ damages, plus costs.
3. (Check applicable box below)
􀂆 a. On _______________, 19___, an Order was entered by
this Court ordering defendant _____________________
to appear at ______________________________________
on _______________, 19___, at ______ __.m. and make
discovery on oath as to the defendant's property and
on _______________, 19___, a copy of the Order was
served upon ___________________________________
(check one) 􀂆 personally, 􀂆 by sending it simultaneously
by ordinary and certified mail, return
receipt requested to _____________________'s last
known address.
􀂆 b. On _______________, 19___, I served an information
subpoena and attached questions as permitted by
Court Rules on the defendant _____________________
(check one) 􀂆 personally, 􀂆 by sending it simultaneously
by regular and certified mail, return
receipt requested to defendant's last known address.
117
4. _______________________ has failed to comply with (check one)
􀂆 the order, 􀂆 the information subpoena.
5. I request that the Court enter an order enforcing litigant's
rights.
6. On _______________, 19___, I served copies of this motion and
certification on ___________________ (check one) 􀂆 personally,
􀂆 by sending them simultaneously by regular and certified
mail, return receipt requested.
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: _________________ _______________________________
118
APPENDIX XI-N
ORDER FOR ARREST
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
ORDER FOR ARREST
, Defendant
This matter being opened to the court by ____________________
on plaintiff's motion for an order enforcing litigant's rights and
the defendant having failed to appear on the return date and having
failed to comply with the (check one) 􀂆 order for discovery previously
entered in this case, 􀂆 information subpoena;
It is on the ____________ day of ____________, 19___, ORDERED
and adjudged:
1. Defendant _______________ has violated plaintiff's rights as a
litigant;
2. Defendant _______________ shall immediately furnish answers as
required by the (check one) 􀂆 order for discovery, 􀂆 information
subpoena
3. If defendant _______________ fails to comply with the (check
one) 􀂆 order for discovery, 􀂆 information subpoena within ten
(10) days of the certified date of personal service or mailing
of this order, a warrant for the defendant's arrest shall
issue out of this Court without further notice;
____________________________________
, J.S.C.
PROOF OF SERVICE
119
On ____________, 19___, I served a true copy of this Order on
defendant _______________ (check one) 􀂆 personally, 􀂆 by sending
it simultaneously by regular and certified mail, return receipt
requested to:
(Set forth address) _______________________________________________
________________________________________________
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
wilfully false, I am subject to punishment.
Date: _______________ ____________________________________
120
APPENDIX XI-O
CERTIFICATION IN SUPPORT OF APPLICATION
FOR ARREST WARRANT
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
COUNTY
Telephone No.
Docket No.
, Plaintiff CIVIL ACTION
Certification in Support of
v. Application for Arrest Warrant
, Defendant
The following certification is made in support of plaintiff's
application for an arrest warrant:
1. I am the plaintiff or plaintiff's attorney in this matter.
2. On _____________, 19__, plaintiff obtained a judgment against
the defendant ___________________________________________ for
$ _______________ damages, plus costs.
3. (Check applicable box below)
􀂆 a. On _______________, 19___, an Order was entered by
this Court ordering defendant _____________________
to appear at ______________________________________
on _______________, 19___, at ______ __.m. and make
discovery on oath as to the defendant's property and
on _______________, 19___, a copy of the Order was
served upon ___________________________________
(check one) 􀂆 personally, 􀂆 by sending it simultaneously
by ordinary and certified mail, return
receipt requested to _____________________'s last
known address.
􀂆 b. On _______________, 19___, I served an information
subpoena and attached questions as permitted by
Court Rules on the defendant _____________________
(check one) 􀂆 personally, 􀂆 by sending it simultaneously
by regular and certified mail, return
receipt requested to defendant's last known address.
121
4. _______________________ has failed to comply with (check one)
􀂆 the order, 􀂆 the information subpoena.
5. On , 19 , the Court entered an Order for Arrest
when defendant failed to appear on the return day of my motion
for order enforcing litigant's rights.
6. On , 19 , I served a true copy of the Order for
Arrest on (check one) 􀂆 personally, 􀂆 by
sending it simultaneously by regular and certified mail,
return receipt requested.
7. Ten days have passed since I served a copy of the Order for
Arrest on defendant and defendant has not complied with the
(check one) 􀂆 information subpoena, 􀂆 order for discovery.
8. I request that the Court issue a warrant for the arrest of
defendant.
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: ____________________________________
122
APPENDIX XI-P
WARRANT FOR ARREST
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
WARRANT FOR ARREST
, Defendant
TO: A Court Officer of the Special Civil Part or the Sheriff of
________________________ County
You are hereby commanded to arrest _________________________,
at (check one) 􀂆 any location, 􀂆 the address set forth in the
annexed order for arrest between the hours of 7:30 a.m. and
3:00 p.m. on a day when the court is in session, and bring him or
her forthwith before a Judge of the Superior Court to await the
further order of the Court in this matter.
Date: ________________ WITNESS: _______________________________
Judge of the Superior Court
_______________________________
Clerk of the Special Civil Part

Rules Cycle Report of the New Jersey Supreme Court Professional Responsibility Rules Committee

2008 – 2010 Rules Cycle Report
of the
New Jersey Supreme Court
Professional Responsibility Rules Committee December 16, 2009
TABLE OF CONTENTS
—i—
INTRODUCTION .......................................................................................................................... 1
I. PROPOSED RULE AMENDMENTS RECOMMENDED FOR ADOPTION ........................ 2
A. RPC 5.5 – Multijurisdictional Practice Involving Arbitration, Mediation or Other
Alternate Dispute Resolution Program ............................................................................... 2
B. Rule 1:20-1, Rule 1:28-2(a), Rule 1:28-3(a), and Rule 1:28B-1(e) – “Rule 1:21-3(c)
Attorneys” and Other Non-New Jersey Attorneys.............................................................. 8
II. PROPOSED RULE AMENDMENTS CONSIDERED BUT NOT RECOMMENDED....... 14
A. Request for Technical Amendments to Rules 1:20-1(b) & (c) and 1:28-2(a) Regarding
Collection and Due Date for Payment of Annual Attorney Assessment .......................... 14
III. NON-RULE RECOMMENDATIONS ................................................................................. 16
A. Guidelines for Media Coverage of District Ethics Committee Hearings ......................... 16
B. Alternative Form of “Certification of Retirement” for Retired New Jersey Attorneys
Providing Pro Bono Services to the Poor by Volunteering for Legal Services of New
Jersey or Volunteer Public Interest Legal Services Organizations................................... 23
C. Establishing an Ad Hoc Committee on Malpractice Insurance ........................................ 25
IV. OUT-OF-CYCLE ACTIVITY ............................................................................................... 27
A. Pro Bono Services by In-House Counsel.......................................................................... 27
B. Referral to PRRC, CAA and ACPE from the Decision of the Court in
In re Opinion 39 of the Committee on Attorney Advertising........................................... 27
C. Requests to Amend RPC 7.3 to Ban Direct Solicitation Letters....................................... 28
D. Technical Corrections to RPC 7.1(b) and RPC 7.5(a) ...................................................... 29
V. HELD MATTERS ................................................................................................................... 30
A. Post-Retirement Employment Discussions by Sitting Judges .......................................... 30
B. Confidentiality of Judicial Disciplinary System (Rule 2:15-20) ...................................... 30
C. Settlement of Aggregate (Non-class Action) Litigation (RPC 1.8(g)) ............................. 30
LIST OF MEMBERS OF PROFESSIONAL RESPONSIBILITY RULES COMMITTEE ....... 32
Appendix A: Current Certification of Retirement Form........................................................App. A
Appendix B: Proposed Alternate Certification Form for Retired Attorneys
Providing Pro Bono Services..........................................................................App. B
—1—
INTRODUCTION
The Professional Responsibility Rules Committee (the “PRRC” or the “Committee”)
recommends the proposed amendments and new rules contained in this report. Part I contains
proposed rule amendments. Part II summarizes proposals considered but not recommended for
adoption. The Committee’s “non-rule recommendations” are contained in Part III. Part IV
summarizes recommendations previously presented to the Court during this 2008-2010 rules
cycle, and, as applicable, the actions taken thereon by the Court. Part IV also includes technical
changes that the Court made to the Rules of Professional Conduct since the Committee’s last
cycle report.
In the proposed rule amendments, added text is underlined. Deleted text is [bracketed].
Because existing paragraph designations and captions are indicated by underscoring, proposed
new paragraph designations and captions are indicated by double underscoring. No change in
the text is indicated by “. . . no change.”
2
I. PROPOSED RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. RPC 5.5 – Multijurisdictional Practice Involving Arbitration, Mediation or Other
Alternate Dispute Resolution Program
In its 2006-2008 report, the Committee proposed several amendments to the provisions of
RPC 5.5 relating to multijurisdictional (cross-border) practice by attorneys licensed to practice in
a jurisdiction other than New Jersey. Those proposals remain pending before the Court. In the
meantime, the Committee was asked to consider the implications raised by a cross-border
attorney’s inquiry about representing an existing New Jersey client who was a party to a dispute
that arose in New Jersey, in a New Jersey arbitration, mediation or other alternate or
complementary dispute resolution program (collectively, ADR).
Under current RPC 5.5(b)(3)(ii), a cross-border attorney may represent a party to a
dispute by participating in ADR when the “representation is on behalf of an existing client in a
jurisdiction in which the lawyer is admitted to practice, and the dispute originates in or is
otherwise related to a jurisdiction in which the lawyer is admitted to practice.” Thus, the
proposed representation by an out-of-state attorney of a New Jersey client in connection with a
New Jersey dispute would not be permitted under current RPC 5.5.
In its 2006-2008 report, the Committee proposed a new subparagraph to allow a crossborder
attorney to “associate” in a matter with a New Jersey lawyer “who shall be held
responsible for the conduct of the out-of-State lawyer in the matter.” The proposal does not
contain requirements relating to client locale or the place the dispute arose. Thus, if the
previously-proposed safe harbor is adopted, a cross-border attorney would be permitted to
represent a New Jersey client, who is a party to a dispute that arose in New Jersey, in an ADR
process in New Jersey, provided that the cross-border attorney associates with local counsel. In
3
addition, the attorney must comply with the Rules regarding registration and payment of the
attorney assessment, as provided in current RPC 5.5(c)(6) for all forms of cross-border practice.
Another amendment proposed in the 2006-2008 report brings an anomaly to light. To
remove obstacles and encourage ADR in New Jersey, the Committee recommended eliminating
the registration and assessment requirements for cross-border practice involving ADR under
current RPC 5.5(b)(3)(ii). If the Court adopts such an amendment and the previously-proposed
safe harbor discussed above, cross-border attorneys may permissibly represent clients in ADR
processes in New Jersey without completing a registration statement, paying the assessment, or
incurring the expense of associating with local counsel, only if the client is from a jurisdiction in
which the attorney in licensed and the dispute originates in or relates to such a jurisdiction – that
is, by definition, somewhere other than New Jersey. If, however, the client is from New Jersey
or the dispute arose in or relates only to New Jersey, while all other variables remain the same,
then the cross-border attorney may engage in the representation only if those additional burdens
are satisfied. Stated differently, when a party to a dispute being resolved through a New Jersey
ADR process desires representation by a cross-border attorney, the cost of the process will be
greater when the client is from New Jersey or the matter concerns a New Jersey dispute.
The Committee recognizes the policy of encouraging ADR, and that imposing additional
requirements on cross-border attorneys seeking to engage in ADR processes on behalf of their
clients will deter them from selecting New Jersey as their ADR forum. Although the previously
proposed new safe harbor would allow cross-border representation in a matter involving a New
Jersey client or a dispute that originated in New Jersey, the required prerequisites – association
with local counsel, registration, and payment of the annual assessment – may prove to be too cost
prohibitive for many clients. In addition, the justification for regulating the practice of law is
4
more attenuated in the context of ADR than it is in a pure litigation setting. For example, in a
private mediation conducted pursuant to a private agreement between private individuals, there is
no regulation or oversight by the courts. Even laypersons may assist parties under Section 10 of
the Uniform Mediation Act, N.J.S.A. 2A:23C-10.
Commenters previously argued that an attorney’s involvement in ADR may not even
constitute the “practice of law,” such as when they are acting as “neutrals” in a purely private
mediation or arbitration. Answering the complicated question of what constitutes the practice of
law is beyond the charge of the Committee. It is sufficient to note that the restrictions imposed on
cross-border attorneys by RPC 5.5(b) apply, by the terms of the rule, only to the “practice of law
in New Jersey.” If, as commenters contend, a particular ADR-related activity does not constitute
the “practice of law,” however that may be defined, then RPC 5.5(b) does not apply to impose
any restrictions on that activity.
The Committee proposes a narrow rule expansion to allow a cross-border attorney to
provide representation in a New Jersey ADR process without regard to the location of the client
or the place the dispute originated, and without requiring the cross-border attorney to register and
pay the annual assessment, provided that the attorney: (1) remains subject to the RPCs and the
disciplinary authority of the New Jersey Supreme Court, as stated in current RPC 5.5(c)(2); and
(2) does not expand the scope of the permitted representation by engaging in conduct for which
pro hac vice admission is required. The Committee recommends an amendment to RPC
5.5(b)(3)(ii) that is consistent with ABA Model RPC 5.5(c)(3) (which focuses on the relationship
between the representation and the lawyer’s practice, not the location of the client or the dispute):
(ii) the lawyer engages in representation of a party to a dispute by participating in
arbitration, mediation or other alternate or complementary dispute resolution
program[, the representation is on behalf of an existing client in a jurisdiction in
which the lawyer is admitted to practice, and the dispute originates in or is
5
otherwise related to a jurisdiction in which the lawyer is admitted to practice] and
the services arise out of or are reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted to practice and are not services
for which pro hac vice admission pursuant to R. 1:21-2 is required;
That proposed amendment, as it would appear with the other provisions of RPC 5.5,
follows below. To illustrate this new proposal, together with the RPC 5.5 amendments previously
proposed in the 2006-2008 report that the Court has not acted upon, the following formatting is
used: Additional text proposed in the prior report is underscored; new text proposed by this
report is further indicated in bold. Text previously recommended for deletion is [bracketed],
while additional text recommended for deletion in this report is further indicated with [bold
brackets]. Current paragraph designations and captions are underscored, and a previously
proposed new paragraph identifier is double underscored. This report does not propose any
additional new subparagraph identifiers.
PROPOSED AMENDMENTS TO RPC 5.5 (AS RECOMMENDED IN
2006-2008 REPORT AND 2008-2010 REPORT, COLLECTIVELY)
RPC 5.5. Lawyers not admitted to the bar of this state and the lawful practice of law
(a) A lawyer shall not:
(1) practice law in a jurisdiction where doing so violates the regulation of the legal
profession in that jurisdiction; or
(2) assist a person who is not a member of the bar in the performance of activity that
constitutes the unauthorized practice of law.
(b) A lawyer not admitted to the Bar of this State who is admitted to practice law before the
highest court of any other state, territory of the United States, Puerto Rico, or the District of
Columbia (hereinafter a United States jurisdiction) may engage in the lawful practice of law in
New Jersey only if:
(1) the lawyer is admitted to practice pro hac vice pursuant to R. 1:21-2 or is preparing
for a proceeding in which the lawyer reasonably expects to be so admitted and is associated in
that preparation with a lawyer admitted to practice in this jurisdiction; or
(2) the lawyer is an in-house counsel and complies with R. 1:27-2; or
6
(3) under any of the following circumstances:
(i) the lawyer engages in the negotiation of the terms of a transaction in furtherance of
the lawyer's representation on behalf of an existing client in a jurisdiction in which the lawyer is
admitted to practice and the transaction originates in or is otherwise related to a jurisdiction in
which the lawyer is admitted to practice;
(ii) the lawyer engages in representation of a party to a dispute by participating in
arbitration, mediation or other alternate or complementary dispute resolution program[, the
representation is on behalf of an existing client in a jurisdiction in which the lawyer is admitted
to practice, and the dispute originates in or is otherwise related to a jurisdiction in which the
lawyer is admitted to practice] and the services arise out of or are reasonably related to the
lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not
services for which pro hac vice admission pursuant to R. 1:21-2 is required;
(iii) the lawyer investigates, engages in discovery, interviews witnesses or deposes
witnesses in this jurisdiction for a proceeding pending or anticipated to be instituted in a
jurisdiction in which the lawyer is admitted to practice; [or]
(iv) the lawyer associates in a matter with a lawyer admitted to the Bar of this State who
shall be held responsible for the conduct of the out-of-State lawyer in the matter; or
(v) [(iv)] the lawyer practices under circumstances other than (i) through [(iii)] (iv)
above, with respect to a matter where the practice activity arises directly out of the lawyer's
representation on behalf of an existing client in a jurisdiction in which the lawyer is admitted to
practice, provided that such practice in this jurisdiction is occasional and is undertaken only
when the lawyer's disengagement would result in substantial inefficiency, impracticality or
detriment to the client.
(c) A lawyer admitted to practice in another jurisdiction who acts in this jurisdiction pursuant to
[sub-]paragraph (b) above shall:
(1) be licensed and in good standing in all jurisdictions of admission and not be the
subject of any pending disciplinary proceedings, nor a current or pending license suspension or
disbarment;
(2) be subject to the Rules of Professional Conduct and the disciplinary authority of the
Supreme Court of this jurisdiction;
(3) consent in writing on a form approved by the Supreme Court to the appointment of
the Clerk of the Supreme Court as agent upon whom service of process may be made for all
actions against the lawyer or the lawyer's firm that may arise out of the lawyer's participation in
legal matters in this jurisdiction, except that a lawyer who acts in this jurisdiction pursuant to
subparagraph (b)(3)(ii) or (b)(3)(iii) above shall be deemed to have consented to such
appointment without completing the form;
(4) not hold himself or herself out as being admitted to practice in this jurisdiction;
7
(5) maintain a bona fide office in conformance with R. 1:21-1(a), except that, when
admitted pro hac vice, the lawyer may maintain the bona fide office within the bona fide law
office of the associated New Jersey attorney pursuant to R. 1:21-2(a)(1)(B); and
(6) except for a lawyer who acts in this jurisdiction pursuant to subparagraph (b)(3)(ii) or
(b)(3)(iii) above, annually register with the New Jersey Lawyers’ Fund for Client Protection and
comply [complies] with R. 1:20-1(b) and (c), R. 1:28-2, and R. 1:28B-1(e) during the period of
practice.
Note: Adopted July 12, 1984 to be effective September 10, 1984; caption amended, former text
designated as paragraph (a), and new paragraphs (b) and (c) adopted November 17, 2003 to be
effective January 1, 2004; paragraph (c) amended July 28, 2004 to be effective September 1,
2004; subparagraph (b)(3)(iii) amended, former subparagraph (b)(3)(iv) designated as
subparagraph (b)(3)(v) and new subparagraph (b)(3)(iv) adopted, and paragraph (c) and
subparagraphs (c)(3) and (c)(6) amended to be effective , 2010.
8
B. Rule 1:20-1, Rule 1:28-2(a), Rule 1:28-3(a), and Rule 1:28B-1(e) – “Rule 1:21-3(c)
Attorneys” and Other Non-New Jersey Attorneys
The Court referred to the Committee a question raised by Legal Services of New Jersey:
whether an attorney not admitted to the New Jersey bar who is permitted to practice in New
Jersey in a limited manner pursuant to Rule 1:21-3(c) (employed or associated with or doing pro
bono work for an approved legal services organization) is required to complete New Jersey’s
annual attorney registration and pay the annual assessment. In response to a simultaneous
referral, the Lawyers’ Fund for Client Protection (Lawyers’ Fund or Fund) submitted a petition
for certain amendments to explicitly provide for such registration and payment; to make it clear
that claims arising out of the dishonest conduct of Rule 1:21-3(c) attorneys are subject to
compensation by the Fund; and to make various housekeeping amendments, discussed below.
That petition was also referred to the Committee.
The Committee recommends the Fund’s proposed amendments. As the Fund noted,
imposing registration and assessment requirements on Rule 1:21-3(c) attorneys is consistent with
the current treatment of other non-New Jersey attorneys given limited permission to practice
here: those holding limited licenses as in-house counsel pursuant to Rule 1:27-2, those permitted
to appear pro hac vice pursuant to Rule 1:21-1, those certified as foreign legal consultants
pursuant to Rule 1:21-9, and multi-jurisdictional practitioners under RPC 5.5(b).1 All such
persons are prohibited from holding themselves out as members of the New Jersey bar, yet each
must pay the assessment. Also, pro hac vice attorneys, similar to Rule 1:21-3(c) attorneys, must
1 In its 2006-2008 report, the Committee proposed amendments to RPC 5.5 to eliminate
the registration and payment of assessment obligations for two types of multi-jurisdictional
attorneys: those engaged in alternative dispute resolution pursuant to RPC 5.5(b)(3)(ii), and
those engaged in preparation for non-New Jersey proceedings pursuant to RPC 5.5(b)(3)(iii).
Those recommendations remain pending before the Court. In Part I.A., supra, the PRRC is
recommending additional amendments to RPC 5.5, relating to the permitted scope of practice.
9
practice under a sponsoring New Jersey attorney, yet they too must pay. The Fund observed that
the practice of law in New Jersey is a privilege, and that one of the broad purposes of the annual
assessment is to protect law clients. Seen from that perspective, the payment of the annual
assessment, regardless of the limited nature of one’s practice, is minimally burdensome. With
respect to Fund coverage, and the registration and payment of the assessment by Rule 1:21-3(c)
attorneys, the proposed amendments affect Rule 1:20-1(b) and (c), Rule 1:28-2(a), Rule 1:28-
3(a), and Rule 1:28B-1(e).
The recommended amendments to Rule 1:28-3(a) and Rule 1:28B-1(e) include
“housekeeping” aspects. The first would make clear that the Fund has the authority to pay
claims arising from the dishonest conduct of all attorneys permitted to practice here – not merely
New Jersey attorneys and attorneys appearing pro hac vice, as the current rule provides. That is
consistent with the requirement that all of them are required to pay the annual assessment.
Similarly, the amendment to Rule 1:28B-1(e) would provide that all attorneys permitted to
practice here – not merely admitted attorneys and those appearing pro hac vice – must pay the
component of the annual assessment that represents the fee to the Lawyers’ Assistance Program.
That is consistent with the obligations imposed on such attorneys to pay the other two
components of the annual assessment. See Rule 1:20-1 (annual fee to Disciplinary Oversight
Committee); Rule 1:28-2(a) (annual fee to Lawyers’ Fund).
The proposed amendments follow.
10
1:20-1. Disciplinary Jurisdiction; Annual Fee and Registration
(a) Generally. . . . no change.
(b) Annual Fee. Every attorney admitted to practice law in the State of New Jersey, including
all persons holding a plenary license, those admitted pro hac vice in accordance with Rule 1:21-
2, those holding a limited license as in-house counsel under Rule 1:27-2, those registered as
multijurisdictional practitioners under RPC 5.5(b), [and] those certified as Foreign Legal
Consultants under Rule 1:21-9, and those permitted to practice under Rule 1:21-3(c) shall pay
annually to the Oversight Committee a sum that shall be determined each year by the Supreme
Court. The names of all persons failing to comply with the provisions of this Rule shall be
reported to the Supreme Court for inclusion on its Ineligible to Practice Law List.
(c) Annual Registration Statement. To facilitate the collection of the annual fee provided for in
paragraph (b), every attorney admitted to practice law in this state, including all persons holding
a plenary license, those admitted pro hac vice, those holding a limited license as in-house
counsel, those registered as multijurisdictional practitioners, [and] those certified as Foreign
Legal Consultants, and those permitted to practice under Rule 1:21-3(c) shall, on or before
February 1 of every year, or such other date as the Court may determine, pay the annual fee and
file a registration statement with the New Jersey Lawyers' Fund for Client Protection (hereinafter
referred to as the Fund). The registration statement shall be in a form prescribed by the
Administrative Director of the Courts with the approval of the Supreme Court. As part of the
annual registration process, each attorney shall certify compliance with Rule 1:28A. All
registration statements shall be filed by the Fund with the Office of Attorney Ethics, which may
destroy the registration statements after one year. Each lawyer shall file with the Fund a
supplemental statement of any change in the attorney's billing address and shall file with the
Office of Attorney Ethics a supplemental statement of any change in the home and primary bona
fide law office addresses, as well as the main law office telephone number previously submitted
and the financial institution or the account numbers for the primary trust and business accounts,
either prior to such change or within thirty days thereafter. All persons first becoming subject to
this rule shall file the statement required by this rule prior to or within thirty days of the date of
admission.
The information provided on the registration statement shall be confidential except as otherwise
directed by the Supreme Court.
(d) Remedies for Failure to Pay or File. . . . no change.
Note: Adopted February 23, 1978, to be effective April 1, 1978. Any matter pending unheard
before a County Ethics Committee as of April 1, 1978 shall be transferred, as appropriate, to the
District Ethics Committee or the District Fee Arbitration Committee having jurisdiction. Any
matter heard or partially heard by a County Ethics Committee by April 1, 1978 shall be
concluded by such Ethics Committee and shall be reported on in accordance with these rules;
amended July 16, 1981 to be effective September 14, 1981. Caption amended and first two
paragraphs amended and redesignated as paragraph (a); new paragraphs (b), (c) and (d) adopted
11
January 31, 1984 to be effective February 15, 1984; paragraph (c) amended November 5, 1986 to
be effective January 1, 1987; paragraph (d) amended June 29, 1990 to be effective September 4,
1990; paragraph (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (c)
amended September 15, 1992, to be effective January 1, 1993; caption added to all paragraphs
and paragraphs (a), (b), (c), and (d) amended February 8, 1993 to be effective immediately;
paragraphs (a), (b) and (c) amended January 31, 1995, to be effective March 1, 1995; paragraph
(a) amended July 10, 1998, to be effective September 1, 1998; paragraph (b) amended July 12,
2002 to be effective September 3, 2002; paragraphs (a), (b), (c) and (d) amended July 28, 2004
to be effective September 1, 2004; paragraph (c) amended July 9, 2008 to be effective September
1, 2008; paragraphs (b) and (c) amended to be effective , 2010.
* * * * *
1:28-2. Payment to the Fund; Enforcement
(a) Generally. . . . no change to first paragraph.
All persons admitted pro hac vice in accordance with Rule 1:21-2, those holding limited
licenses as in-house counsel under R. 1:27-2, those registered as multijurisdictional practitioners
under RPC 5.5(b), [and] those certified as Foreign Legal Consultants under R. 1:21-9, and those
permitted to practice under R. 1:21-3(c) shall also make the same annual payment described
above subject to the same late fees and reinstatement from ineligible list fees. However, such
persons shall not be entitled to the exemptions provided hereinafter.
For the purpose of annual assessment all members of the Bar, including those admitted pro
hac vice, those holding limited licenses as in-house counsel, those registered as
multijurisdictional practitioners, [and] those certified as Foreign Legal Consultants, and those
permitted to practice under R. 1:21-3(c) shall report changes of address as they occur and thus
keep their billing address current with the Fund at all times.
Any member of the Bar who receives a billing notice addressed to another member of the Bar
shall either forward the notice to the intended recipient or return it to the Fund.
(b) . . . no change.
(c) . . . no change.
Note: Source-R.R. 1:22A-2; amended July 17, 1975 to be effective September 8, 1975; amended
January 31, 1984 to be effective February 15, 1984; amended June 29, 1990 to be effective
September 4, 1990; redesignated paragraph (a) amended and paragraph (b) adopted July 14,
1992 to be effective September 1, 1992; paragraphs (a) and (b) amended February 8, 1993, to be
12
effective immediately; paragraph (a) amended and new paragraph (c) added July 28, 2004 to be
effective September 1, 2004; paragraph (a) amended to be effective , 2010.
* * * * *
1:28-3. Payment of Claims
(a) Eligible Claims. The Trustees may consider for payment all claims resulting from the
dishonest conduct of a member of the bar of this state or an attorney (1) admitted pro hac vice,
(2) holding limited license as in-house counsel, (3) registered as multijurisdictional practitioner,
(4) certified as a foreign legal consultant or (5) permitted to practice under Rule 1:21-3(c), if the
attorney was acting either as an attorney or fiduciary, provided that:
(1) to (5) . . . no change.
(b) to (f) . . . no change.
Note: Source-R.R. 1:22A-3(a) (b) (c) (d) (e) (f). Paragraph (a)(2) amended June 24, 1974 to be
effective immediately; paragraph (a) amended and paragraph (a)(5) adopted January 31, 1984 to
be effective February 15, 1984; paragraph (a)(1), (2), and (5) amended, former paragraph (a)(4)
deleted, paragraph (a)(3) redesignated as paragraph (a)(4), new paragraph (a)(3) adopted;
paragraph (b) amended and paragraph (b)(5) adopted June 29, 1990 to be effective September 4,
1990; paragraphs (a) and (a)(1) amended July 14, 1992 to be effective September 1, 1992;
introductory paragraph and paragraphs (a)(4) and (f) amended July 13, 1994 to be effective
September 1, 1994; paragraph (a) amended to be effective , 2010.
* * * * *
1:28B-1. Board of Trustees; Purpose; Administration; Annual Assessment
(a) . . . no change.
(b) . . . no change.
(c) . . . no change.
(d) . . . no change.
13
(e) Annual Assessment. Every attorney admitted to practice law in the State of New Jersey,
including those holding a plenary license, [and] those admitted pro hac vice in accordance with
Rule 1:21-2, those holding a limited license as in-house counsel under Rule 1:27-2, those
registered as multijurisdictional practitioners under RPC 5.5(b), those certified as Foreign Legal
Consultants under Rule 1:21-9, and those permitted to practice under Rule 1:21-3(c), shall be
assessed and shall pay annually to the Lawyers Assistance Program a fee in a sum that shall be
determined each year by the Supreme Court. All fees so paid shall be used for the administration
of the Lawyers Assistance Program. This assessment shall be collected administratively in the
same manner as and subject to the same exemptions as provided under Rule 1:28-2, except that
no such fee shall be assessed to attorneys during the first calendar year of their admission. The
fee shall be assessed to all attorneys in their second through forty-ninth calendar year of
admission. The names of any and all attorneys failing to comply with the provisions of this rule
shall be reported to the Supreme Court for inclusion on its Ineligible to Practice Law List. Any
attorney who fails to pay the annual assessment for seven consecutive years shall be subject to
the license revocation procedures contained in Rule 1:28-2(c).
Note: Adopted July 15, 1999, to be effective September 1, 1999; caption amended and new
paragraph (e) added July 12, 2002 to be effective September 3, 2002; paragraph (b) amended
February 4, 2003 to be effective immediately; paragraph (e) amended July 28, 2004 to be
effective September 1, 2004; paragraph (a) amended December 5, 2006 to be effective
immediately; paragraph (e) amended November 27, 2007 to be effective immediately; paragraph
(e) amended _________to be effective , 2010.
14
II. PROPOSED RULE AMENDMENTS CONSIDERED BUT NOT RECOMMENDED
A. Request for Technical Amendments to Rules 1:20-1(b) & (c) and 1:28-2(a) Regarding
Collection and Due Date for Payment of Annual Attorney Assessment
The Civil Practice Committee referred to the PRRC a letter from an attorney requesting
amendments to certain rules relating to the method of collection of the discipline part of the
annual attorney assessment, and to the deadline for payment for the annual assessment. The
PRRC asked the Lawyers’ Fund for Client Protection for its recommendations on the issues. The
Fund’s position, explained below, is that the requested rule changes are unnecessary because
existing rules adequately address the concerns raised by the requestor. The PRRC agrees.
First, the attorney noted that lawyers do not receive a separate bill for the disciplinary
oversight portion of the annual assessment. Instead, that charge is included in the total annual
assessment collected by the Lawyers’ Fund. The requesting attorney asked that this procedure
be reflected in Rule 1:20-1(b) by adding the following after the first sentence of the rule: “This
assessment shall be collected in the same bill rendered by the Client Security Fund, subject to the
same exceptions in Rule 1:28-2.” As the Lawyers’ Fund correctly observed, that point is already
covered in the third sentence of Rule 1:20-1(b), which states: “This assessment shall be collected
administratively in the same manner as and subject to the same exemptions provided under Rule
1:28-2, except that plenary-licensed attorneys who are in their second calendar year of admission
shall pay a partial fee, as determined by the Supreme Court.”
The attorney’s second concerns relates to the Fund’s historical practice of mailing annual
billing notices in late March, which set a payment deadline of April 30. Because Rule 1:20-1(c)
and Rule 1:28-2 refer to a February 1 deadline, the attorney expressed concern that lawyers who
pay by the April 30 deadline stated in the billing notice “are in technical violation of those rules.”
The Fund found that the stated concern is misplaced. After mentioning February 1, each of the
15
cited rules goes on to state “or such other date as the Court may determine,” which the Fund
view as the operative language. As the Fund explained, each year the Court delegates the setting
of the deadline to the Fund, and the Fund chooses a deadline to provide lawyers with four to six
weeks to respond to the billing notice. The Committee agrees with the Fund’s conclusion that, in
the absence of a clear advantage in a proposed change, a rule should not be amended. If it is
determined that an amendment is desirable, then the specific February 1 reference should be
deleted (rather than replaced with May 1, as suggested) to preserve flexibility in the event of
unanticipated circumstances.
16
III. NON-RULE RECOMMENDATIONS
A. Guidelines for Media Coverage of District Ethics Committee Hearings
In its 2006-2008 report, the Committee recommended that the Court’s Guidelines for Still
and Television Camera and Audio Coverage of Proceedings in the Courts of New Jersey apply to
media requests to cover District Ethics Committee (DEC) hearings, with variations that take into
account unique features of the disciplinary system. Following its review of the 2006-2008 report
and public comments, the Court asked the Committee for further consideration of certain issues.
This report contains the Committee’s revised recommendations.
• Summary of Recommendations in 2006-2008 Report
In its 2006-2008 report, the Committee recommended the following overlay on the
Guidelines in the context of DEC hearings. The first two are central to the issues addressed here:
(1) Media members planning to attend DEC hearings should provide reasonable
advance notice (ten business days’ was suggested) so that ethics authorities can
find alternative accommodations if needed. The concerns were that most hearings
are held in volunteers’ offices and few DECs have ready access to courtrooms for
hearings.
(2) Audio recordings, but not still photography or video recordings, should be
allowed. Cameras may distract or intimidate in the typically small hearing rooms,
and the host lawyer has a legitimate interest in protecting confidential information
in the office from visual recording.
(3) No coverage should be permitted of proceedings deemed non-public under R.
1:20-9(c) (proceedings subject to protective order or alleging disability).
(4) Initial decisions on media coverage should be made by the DEC Chair, with a
right to appeal to the DRB Chair. Further review may be sought pursuant to R.
1:20-16(f).
(5) A press kit should explain the disciplinary process and volunteer system, as well
as any notice requirements and restrictions on coverage.
• Summary of Public Comments to 2006-2008 Report.
17
Following publication of the 2006-2008 report, comments were received from one
individual and one press group. Both commenters objected specifically to the recommendations
summarized in (1) and (2) above. With respect to the recommended ten business days’ advance
notice, the commenters noted that the Guidelines allow the general public to attend proceedings
without notice. They argued that members of the press (with or without small audio recording
devices) should likewise be permitted to attend without providing any advance notice. The press
group commented that if the Court were to require advance notice, the group would support the
Guidelines’ undefined concept of “reasonable advance notice” because the media may not learn
of a hearing until a few days beforehand. The individual commenter stated that a ten-day notice
of attendance requirement would be acceptable if the Court also requires that the ethics system
provide meaningful advance notice of hearing dates to the public, such as by posting notice of
scheduled hearing dates on the Judiciary’s website at least fifteen to twenty days in advance.
The commenters also objected to a ban on visual recording equipment. They suggested
that concerns about confidentiality can be addressed by moving the hearing out of private law
offices and by removing confidential material from the hearing room. They also noted that the
Guidelines minimize concerns about intrusiveness by limiting the number of camera operators,
disallowing sound and light distractions, and requiring certain positioning of equipment.
• The Committee’s Further Review.
Following publication of the 2006-2008 report and receipt of public comments, the Court
referred the matter back to the Committee, asking it to consider: (1) the issue of providing
adequate advance public notice of DEC hearing dates; and (2) whether video and photographic
coverage should be permitted, consistent with the Guidelines, if DEC hearings were conducted in
more public venues, such as a courtroom. As the backdrop to consideration of those issues, the
18
Committee considered the current administrative procedures for posting information about
pending ethics matters (detailed below), the volunteer nature of the ethics system, the rarity of
press coverage and public attendance at hearings, the difficulties involved in rescheduling ethics
hearings, and the fact that not all DECs have ready access to courtrooms.
1. Summary of New Recommendations by Committee
Ultimately, the Committee has determined to make the following recommendations, with
the goal being to reasonably accommodate those interested in attending and covering hearings:
􀂃 The ethics system should be encouraged to plan in advance for anticipated outside
interest in hearings, to consider the importance of public notice and the current posting
procedures when scheduling hearings, and to make reasonably frequent updates to the posted
notice of hearing dates on the Judiciary’s website. Strict requirements are not recommended due
to staffing considerations and the volunteer nature of the ethics system.
􀂃 At the same time, members of the public and the press should be encouraged, but
not required (other than as may be provided in the existing Guidelines), to provide advance
notice of their attendance or, with respect to the media, of their use of visual recording
equipment. By encouraging reasonable advance notice of attendance or press coverage, the
ethics system will have an opportunity to take reasonable steps to address possible
accommodations issues.
2. Background on Current Procedures for Posting Statewide Public Hearing List
As the Committee understands the process, an updated Statewide Public Hearing List
(List) is posted on the Judiciary’s website every month.2 The List describes pending public
2 To access the List from the Judiciary’s website, go to www.njcourtsonline.com. In the
left-side frame, under the heading “Attorney and Judicial Regulations,” click the link Office of
Attorney Ethics. At the third bullet point on the OAE page, click Public Charges. Then, in the
19
charges (matters in which formal ethics complaints were filed) and includes hearing dates.
Compilation of the List begins with the DECs, which gather information from their respective
hearing panels and special masters on the status of matters pending in their districts. Each DEC,
usually through the Vice Chair, compiles that data and provides a status report to the Office of
Attorney Ethics, generally by the 25th of each month. The OAE compiles the data received from
the districts (there are nineteen in all, including the sub-districts and the OAE) and generates the
List, generally by the 1st of the following month. The OAE then sends the List to the
Administrative Office of the Courts. The AOC, in turn, posts the List on the Judiciary’s website,
generally within three of four days of receipt. Thus, under current procedures, an updated
Statewide Public Hearing List is posted once monthly, usually by the 4th or 5th of each month,
and it includes data about hearings that the DECs provided near the 25th of the previous month.
In many instances, hearings are planned far in advance and, under the current compilation
and posting procedures, those hearing dates are contained in a posted List well in advance.
Sometimes, however, hearings are scheduled with the minimum required notice to the parties.
See R. 1:20-6(c)(2)(A) (requiring that notice of hearing be served on presenter, respondent, and
counsel at least 25 days before hearing). That may occur when the matter is getting close to
“goal,” and the DEC is striving to keep it moving through the process. See R. 1:20-8(b)
(encouraging disciplinary system to meet 6-month time goal between due date of answer and
completion of formal hearings and filing of report with OAE). In some such instances, a hearing
date may be imminent or may have passed by the time that information about that date makes its
way from the hearing panel and, ultimately, onto a posted List. That may occur, for example,
when on the first of the month, the parties schedule a hearing to occur at the end of that month.
first section entitled “Generally,” go to the third paragraph, and find this sentence: “To see
charges for the latest month, CLICK HERE.”
20
Other reasons may cause the posted Statewide Public Hearing List to be incomplete or
somewhat stale, including: limited manpower and busy schedules of the volunteer panels and
special masters, who may be unable to transmit complete hearing information to their District
Vice Chair in time for the Vice Chair to provide a complete current report to the OAE; a Vice
Chair’s report may reach the OAE after the new List is generated; or due to unanticipated OAE
or AOC staffing issues, the List may be posted on the Judiciary’s website later than usual.
3. Two Possible Approaches to Ensuring Minimum Advance Public Notice
The Committee considered the possibility of requiring certain protocols for scheduling
hearings and for processing and posting the List to ensure that every hearing date is publicly
posted on the Internet in advance. For example, by keeping in mind the length of time it takes
the system to compile data and update the List, panels and special masters could be required to
schedule hearings in a manner that ensures the hearing dates are on a published List at least a
specified number of days in advance.
Alternatively, additional administrative duties could be imposed on the DEC volunteers
and on the OAE and AOC staff responsible for processing the data and posting the List. For
example, hearing panels and special masters could be required to continually inform their Vice
Chairs as hearing dates are added or changed during the month, particularly when inclusion of
the dates on the next List will not provide at least a certain amount (e.g., 20 days) of advance
public notice. The Vice Chairs could be required to provide frequent interim reports to the OAE;
the OAE could be required to continually revise the List or generate supplemental updates to
provide to the AOC; and the AOC, in turn, could be required to post the updated information on
the Judiciary’s website as soon as it arrives from the OAE.
21
One consequence of the first approach, requiring that hearings always be scheduled in a
manner that ensures advance inclusion on a List, is extending the overall length of time to
complete disciplinary proceedings. That could push some matters beyond their goal dates and,
although less likely, could cause the loss of witness and volunteer hearing panel members, the
latter of which may have terms that expire during the pendency of the proceedings. Both
approaches would put additional strain on the 500-plus volunteer ethics system. Training on new
scheduling and reporting requirements would be necessary. Moreover, the second approach,
mandating continuous rolling updates to the List, would impose additional duties on OAE and
AOC staff.
In light of the volunteer nature of the ethics system and Judiciary staffing concerns, the
Committee does not recommend strict rules for scheduling or posting hearing dates. Rather, the
system should be encouraged to make reasonable efforts to ensure reasonable advance public
notice. Both when scheduling hearings and when compiling and reporting data for inclusion on
the List, volunteers and staff should keep in mind the importance of advance public notice and
the posting process timeframes. (In the rare event there is outside interest in a hearing and an
individual feels aggrieved by insufficient notice, that individual can seek a stay.)
4. Permitting Visual Recording Equipment Consistent with the Guidelines and Encouraging
Advance Notice of Attendance and Press Coverage
The Committee has also determined not to require advance notice of attendance, and that
press coverage should be permitted consistent with the Courtroom Guidelines to the extent
reasonably possible. To address possible accommodations issues, however, the public and the
press should be encouraged to provide reasonable advance notice. That way, the ethics system
will have a reasonable opportunity to resolve any issues in advance.
22
As previously noted, not all DECs have ready access to courtrooms for hearing sites.
Some county courthouses may need several months’ advance notice to accommodate requests to
use a courtroom. If the interest is in mere attendance by one or a few individuals, or a member
of the press with a small audio recorder, generally there should not be an issue. When there is
great interest in attendance, or when extensive media coverage is contemplated, advance notice
will allow DECs to assess, on a case-by-case basis, whether the hearing location is an issue and,
if so, whether it is feasible to reschedule the hearing in a different location. DECs should
exercise reasonable efforts to accommodate increased attendance and press coverage. The more
notice a DEC has, the better opportunity it will have to address venue issues. In sum, the goal is
to encourage advance notice so that interested members of the public and media can optimize
their chances of being accommodated.
The Committee notes again that public attendance and press coverage at DEC hearings
historically has been rare. The DEC usually will be aware when a particular matter will generate
attention and should consider that when scheduling hearing locations in the first instance. Also,
individuals interested in attending a particular disciplinary hearings always have the option of
being placed on an advance notice list by completing a “Request for Notice of Hearings” form
and returning it to the DEC Secretary. That request form, which has been in use since at least
2000, provides for the interested individual to receive advance written notice of hearings.
23
B. Alternative Form of “Certification of Retirement” for Retired New Jersey Attorneys
Providing Pro Bono Services to the Poor by Volunteering for Legal Services of New
Jersey or Volunteer Public Interest Legal Services Organizations
As the Committee considered the Lawyers’ Fund petition for rule amendments relating to
annual registration and payment of the assessment by non-New Jersey attorneys permitted to
practice here in a limited manner (addressed supra, Part I.B), the Committee asked the Fund for
its position on a payment exemption for New Jersey lawyers who are otherwise retired and who
wish to volunteer to represent the poor pro bono through Legal Services of New Jersey.
By way of background, an attorney can request the “retired completely” exemption from
payment of the annual assessment by submitting a “Certification of Retirement,” completed
without alteration. (See Appendix A for a copy of the form that has been used for many years.)
The Fund responded that it is willing to recommend a slight loosening of the definition of
the “retired” exemption for (1) New Jersey lawyers (2) otherwise “completely retired from the
practice of law” who (3) represent the poor (4) without pay (5) under the direction and auspices
of Legal Services of New Jersey. To accomplish this, the Fund suggested a second form of
Certification of Retirement for such an attorney, which adds the following statement that the
attorney must be able to certify: “My only participation in any aspect of legal practice is as a
volunteer for Legal Services of New Jersey, for which services I receive no remuneration.”
The Committee has determined to recommend a slightly revised version of the second
Certification form suggested by the Fund. The Committee agrees that otherwise-retired
attorneys who provide uncompensated legal services to the poor – pure pro bono work – should
not be required to pay the annual assessment. The Committee recommends loosening the
retirement exemption to include attorneys whose practice is limited to volunteering through
Legal Services of New Jersey or with “an organization identified in R. 1:21-1(e) that engages in
24
the volunteer public interest legal services described in RPC 6.1.” The second Certification of
Retirement form recommend by the Committee is attached as Appendix B to this report.
The Committee also noted concerns with some policies embodied in the current
Certification, which the Committee wishes to call to the Court’s attention. The current
Certification of Retirement form has been used by the Fund for decades. The Fund understands
that the form was long ago approved by the Court. The Certification form explicitly provides
that for purposes of the retirement exemption from payment of the annual assessment, a retired
attorney cannot “teach law, or serve in a court system in any capacity, in any jurisdiction.” The
Committee views lecturing, teaching, and serving the judicial system in an unpaid, non-judge
capacity (for example, by membership on a committee of the Court) as activities that may be
considered as something other than the “practice of law.” From a policy standpoint, the Court
may wish to consider allowing otherwise-retired attorneys who engage in such activities to claim
an exemption from attorney assessment and registration requirements.
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C. Establishing an Ad Hoc Committee on Malpractice Insurance
The ABA Model Court Rule on Insurance Disclosure requires lawyers to disclose on
their annual registration statements whether they maintain professional liability insurance. The
stated purpose of the Model Rule is “to provide a potential client with access to relevant
information related to a lawyer’s representation in order to make an informed decision about
whether to retain a particular lawyer.” ABA Standing Committee on Client Protection, Report to
House of Delegates (2004), available at www.abanet.org/cpr/clientpro/malprac_disc_report.pdf.
The Model Rule does not mandate that attorneys maintain malpractice insurance.
The Committee briefly addressed the Model Rule in its 2006-2008 report to the Court.
As noted, individual New Jersey lawyers are not obligated to maintain professional liability
insurance or to inform clients or the Court whether they carry such insurance. 3 As of November
2009, eighteen states require disclosure on annual attorney registration statements; seven states
require disclosure directly to clients; four states are considering a reporting requirement; four
states have voted not to adopt a disclosure rule; and Oregon remains the only state that requires
attorneys to maintain professional liability insurance. See ABA Standing Committee on Client
Protection, State Implementation of ABA Model Court Rule on Insurance Disclosure (Nov. 16,
2009), available at www.abanet.org/cpr/clientpro/malprac_disc_chart.pdf.
As the Committee previously observed, a potential disclosure requirement raises several
issues that warrant consideration. Those issues include: whether disclosure should be required
only on the annual registration statement or also to clients at the inception of the representation;
whether it would be misleading to require disclosure of the fact of insurance to clients without
3 Law firms organized as professional corporations, limited liability companies, and
limited liability partnerships are required to maintain professional liability insurance pursuant to
Rule 1:21-1A, Rule 1:21-1B, and Rule 1:21-1C.
26
also requiring disclosure of the amount of insurance; whether a disclosure rule would encourage
more attorneys to obtain insurance; whether a disclosure requirement would unfairly burden
small firms and solo practitioners; and whether a disclosure requirement serves any substantial
purpose if there is not also a mandate to maintain insurance.
The Committee’s resumed discussion of the Model Rule also touched upon the related
issue of compulsory professional liability insurance. At first glance, mandatory insurance seems
worthwhile because it would close the claims circle by providing coverage for attorney
negligence, which is not covered by the Lawyers Fund for Client Protection. See R. 1:28-3(a)
(allowing Fund to consider claims resulting from attorneys’ dishonest conduct). As with an
insurance disclosure requirement, however, the prospect of mandatory insurance raises many
questions, including: whether there is some great unmet need that would be satisfied by a
mandate to carry professional liability insurance; whether such a mandate would unfairly burden
small firms and solo practitioners, who may have more difficulty than larger firms finding
affordable coverage; and if it were determined that compulsory insurance is justified, what would
be the required minimum policy limits and terms of coverage.
The Committee ultimately concluded that it is necessary to have data from various
sources to accurately gauge the practical implications – the potential benefits and burdens – that
realistically may flow from an insurance disclosure requirement or a mandate to maintain
insurance coverage. The Committee recommends that the Court appoint a special commission
(perhaps an “Ad Hoc Committee on Lawyers’ Professional Liability Insurance”), which may
include representatives from the Bar, the lawyers’ professional liability insurance industry, and
other affected groups, to carefully study the issues.
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IV. OUT-OF-CYCLE ACTIVITY
A. Pro Bono Services by In-House Counsel
In an out-of-cycle report, the Committee made an administrative recommendation to the
Court concerning in-house counsel and the voluntary provision of pro bono services. The
Committee proposed an amendment to the Court’s Supplemental Administrative Determinations
to state that in-house counsel licensed pursuant to Rule 1:27-2 are permitted to provide pro bono
services not only through Legal Services of New Jersey, but also with other pro bono
organizations described in Rule 1:21-1(e). The Committee viewed that amendment as consistent
with the Court’s 2006 amendment to Rule 1:21-3(c), which provides that out-of-state attorneys
“employed by, associated with, or serving as a volunteer pro bono attorney with an organization
described in R. 1:21-1(e) and approved by the Supreme Court, shall be permitted to practice,
under the supervision of a member of the bar of the State, before all courts of this State in all
causes in which the attorney is associated or serving pro bono with such legal services program.”
By Notice to the Bar dated June 3, 2009, available at www.judiciary.state.nj.us/notices,
the Court amended its Supplemental Administrative Determinations to clarify that in-house
counsel may volunteer for pro bono work with Legal Services of New Jersey or with other
approved Rule 1:21-1(e) legal services organizations provided that the requirements of Rule
1:21-3(c) are satisfied. At the same time, the Court made other changes (not initiated by the
PRRC) regarding part-time contract work and the time period within which in-house counsel
must secure new employment without having to reapply for a limited license.
B. Referral to PRRC, CAA and ACPE from the Decision of the Court in In re Opinion 39 of
the Committee on Attorney Advertising
In an out-of-cycle report, the PRRC reported to the Court its recommendations on referral
from the decision of the Court in In re Opinion 39 of the Committee on Attorney Advertising,
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197 N.J. 66 (2008), concerning comparative attorney advertising and amendments to RPC 7.1.
A joint report of the Committee on Attorney Advertising and Advisory Committee on
Professional Ethics was included as an appendix to that report. By Notice dated May 1, 2009,
see www.judiciary.state.nj.us/notices/2009/n090504a.pdf, the Court published the reports and
solicited the submission of comments by June 1, 2009. A public hearing was held on September
30, 2009. See www.judiciary.state.nj.us/notices/2009/n090707b.pdf. In November 2009, the
Court amended RPC 7.1 to provide that a communication is false or misleading if it compares
the lawyer’s services with other lawyers’ services, “unless (i) the name of the comparing
organization is stated, (ii) the basis for the comparison can be substantiated, and (iii) the
communication includes the following disclaimer in a readily discernable manner: ‘No aspect of
this advertisement has been approved by the Supreme Court of New Jersey[.]’” The Court also
adopted an Official Comment that provides guidance concerning communications about receipt
of an honor or accolade. See www.judiciary.state.nj.us/notices/2009/n091104g.pdf.
C. Requests to Amend RPC 7.3 to Ban Direct Solicitation Letters
In another out-of-cycle report, the Committee reported on its review of referred requests
for amendments to RPC 7.3 to ban attorneys’ direct solicitation letters to potential clients. The
Committee found that the First Amendment precludes a complete ban of all solicitation letters.
The Committee recommended extending the existing thirty-day waiting period, which currently
applies to communications sent after a mass-disaster event, to solicitations concerning events
causing personal injury or death, unless the person contacted has a family, close personal, or
prior professional relationship with the lawyer. By Notices to the Bar dated July 1, 2009, see
www.judiciary.state.nj.us/notices/2009/n090707c.pdf, and July 17, 2009, see
www.judiciary.state.nj.us/notices/2009/n090720a.htm, the Court directed the publication of RPC
29
7.3 report and invited the submission of comments through October 5, 2009. As of the date of
this report, the matter is pending before the Court.
D. Technical Corrections to RPC 7.1(b) and RPC 7.5(a)
Effective January 5, 2009, the Court sua sponte corrected the reference in RPC 7.1(b) to
Rule 1:19A-3(d), which for twenty years had erroneously been shown as Rule 1:19-3(d). The
Court also corrected the reference in RPC 7.5(a) to Rule 1:21-1(e), which since 1998 had been
erroneously shown as Rule 1:21-1(d). (In 1998, an amendment to Rule 1:21-1 resulted in a
paragraph redesignation, but a conforming amendment to RPC 7.5(a) was not made. The
January 2009 amendment corrected that oversight.) Those RPC corrections were made by the
Court during this PRRC reporting cycle and are simply noted here for the sake of completeness.
30
V. HELD MATTERS
A. Post-Retirement Employment Discussions by Sitting Judges
In DeNike v. Cupo, 196 N.J. 502 (2008), the Court held that negotiations between a trial
judge and an attorney concerning the judge’s post-retirement employment created an appearance
of impropriety and required a new trial under the circumstances. The Court also set forth
guidance for retiring judges seeking post-retirement employment, and it asked the PRRC and the
Advisory Committee on Extrajudicial Activities (ACEA) for additional recommendations. The
PRRC asked the ACEA to make initial proposals to the PRRC. The PRRC recently received the
ACEA recommendation. After considering and discussing it with the ACEA, the PRRC will
return to the Court with a recommendation.
B. Confidentiality of Judicial Disciplinary System (Rule 2:15-20)
The Court asked the PRRC to work with the Advisory Committee on Judicial Conduct
(ACJC) to review the confidentiality provisions governing the operation of the judicial
disciplinary system, in light of R.M. v. Supreme Court of New Jersey, 185 N.J. 208 (2005), and
other relevant considerations. The ACJC has undertaken the task of preparing a first draft of
recommendations. Upon receipt of an inter-committee report from the ACJC, the PRRC will
resume consideration of this referral.
C. Settlement of Aggregate (Non-class Action) Litigation (RPC 1.8(g))
In the 2006-2008 Rules Cycle Report of the Professional Responsibility Rules
Committee, at 91, available at www.judiciary.state.nj.us/reports2008/prrc.pdf, the PRRC
reported its preliminary discussions on the referral of the Court in its decision in Tax Authority
v. Jackson Hewitt, 187 N.J. 4 (2006). The PRRC noted that there was no immediate need to
amend RPC 1.8(g), and that it would await further information on the subject. Specifically, the
31
PRRC noted that the American Law Institute was conducting a civil procedure study project,
“Principles of the Law of Aggregate Litigation,” which was addressing the issue. At the ALI’s
May 2009 annual meeting, the ALI approved a proposed final draft report, subject to corrections
and editing revisions. See ALI, Current Projects: Principles of the Law of Aggregate Litigation,
at http://www.ali.org/index.cfm?fuseaction=projects.proj_ip&projectid=7. Upon the ALI’s
publication of the official text of its project (anticipated mid-2010), the PRRC will resume
consideration of this referral.
32
Respectfully submitted,
PROFESSIONAL RESPONSIBILITY RULES COMMITTEE4
Honorable Peter G. Verniero, Former Associate Justice, Chair, PRRC
Honorable Alan B. Handler, Associate Justice (ret.), Chair, Advisory Comm. on Judicial Conduct
Honorable John E. Keefe, Sr., P.J.A.D. (ret.), Chair, IOLTA Fund of the Bar of New Jersey
Kenneth J. Bossong, Esquire, Director and Counsel, Lawyers Fund for Client Protection
Joseph A. Bottitta, Esquire, New Jersey State Bar Association
Cynthia A. Cappell, Esquire, Chair, Committee on Attorney Advertising
Charles M. Lizza, Esquire, Chair, Committee on the Unauthorized Practice of Law
Steven C. Mannion, Esquire, Chair, Advisory Committee on Professional Ethics
Louis Pashman, Esquire, Chair, Disciplinary Review Board
Sherilyn Pastor, Esquire, Appointed Member
Melville D. Lide, Esquire, Appointed Member
(Staff: Holly Barbera Freed, Staff Attorney, Supreme Court Clerk’s Office)
4 This report is the result of deliberations that spanned the 2008-2010 rules cycle. In
addition to the members listed here, the Committee is indebted to retired Supreme Court
Associate Justice Stewart G. Pollock, who stepped down effective August 31, 2009, after nine
years of service as its Chair. Many thanks are also due to Michael S. Stein, Esq., who served as
an appointed member from September 2000 through August 2009, and to former ex officio
members Melville D. Miller, Jr., Esq., ACPE Chair, 1994 through December 2008; Raymond S.
Londa, Esq., CUPL Chair, 2001 through December 2008; and Mary Lou Parker, Esq., IOLTA
Chair, March 2008 through February 2009.
App. A
Appendix A: Current Certification of Retirement Form
C E R T I F I C A T I O N OF R E T I R E M E N T
FOR THE CALENDAR YEAR(S) _________
The retired exemption from payment is as defined, without alteration. We
cannot grant the exemption if the language of this certification is altered or if
"January 31" is deleted and a later date substituted.
I, ________________________________, Esq., of full age, say:
Printed Name
1. I am an attorney at law licensed to practice in the State of New Jersey;
2. I hereby request exemption from payment to the New Jersey Lawyers' Fund for Client
Protection for the calendar year(s) indicated pursuant to Rule 1:28-2 because I am "retired
completely from the practice of law" in every jurisdiction. I understand that attorneys are
not exempt from payment solely by virtue of being out-of-state or exempt from pro bono
assignment;
3. I am either unemployed or the employment in which I engage is not in any way related to
the practice of law. I do not draft or review legal documents, render advice on the law or
legal assistance, teach law, or serve in a court system in any capacity, in any
jurisdiction. This is an accurate description of my activities at least since January 31 of
the year for which exemption is sought;
4. I understand that I have an ongoing duty to immediately inform the Fund if I no longer
qualify for the exemption granted;
5. I understand that I will remain officially retired until I inform the Fund otherwise;
6. I understand that it is my obligation to keep my address current with the Fund and
respond to the Annual Attorney Registration Statement and Pro Bono Assignment
Questionnaire.
I hereby certify that these statements regarding my entitlement to the exemption are true and
correct. If such statements are willfully false, I am subject to punishment.
_____________________ _________________________________
(Date) (Signature)
App. B
Appendix B: Proposed Alternate Certification Form for Retired Attorneys Providing Pro Bono Services
C E R T I F I C A T I O N OF R E T I R E M E N T
(LEGAL SERVICES VOLUNTEER)
FOR THE CALENDAR YEAR(S) ___________
The retired exemption from payment is as defined, without alteration. We cannot grant the
exemption if the language of this certification is altered or if "January 31" is deleted and a
later date substituted.
I, ________________________________, Esq., of full age, say:
Printed Name
1. I am an attorney at law licensed to practice in the State of New Jersey;
2. I hereby request exemption from payment to the New Jersey Lawyers' Fund for Client
Protection for the calendar year(s) indicated pursuant to Rule 1:28-2 because I am "retired
completely from the practice of law" in every jurisdiction. I understand that attorneys are
not exempt from payment solely by virtue of being out-of-state or exempt from pro bono
assignment;
3. My only participation in any aspect of legal practice is as a volunteer for Legal Services
of New Jersey or for an organization identified in R. 1:21-1(e) that engages in the
volunteer public interest legal services described in RPC 6.1, for which practice I receive
no remuneration.
4. [3.] Other than as stated in paragraph 3, I am either unemployed or the employment in
which I engage is not in any way related to the practice of law. I do not draft or review
legal documents, render advice on the law or legal assistance, teach law, or serve in a
court system in any capacity, in any jurisdiction. This is an accurate description of my
activities at least since January 31 of the year for which exemption is sought;
5. [4.] I understand that I have an ongoing duty to immediately inform the Fund if I no
longer qualify for the exemption granted;
6. [5.] I understand that I will remain officially retired until I inform the Fund otherwise;
7. [6.] I understand that it is my obligation to keep my address current with the Fund and
respond to the Annual Attorney Registration Statement and Pro Bono Assignment
Questionnaire.
I hereby certify that these statements regarding my entitlement to the exemption are true and
correct. If such statements are willfully false, I am subject to punishment.
Date: _____________________ Signature: _________________________________