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Judges faxing arrest warrants in the middle of the night and piping in on plea bargaining sessions. Electronic ticketing in municipal courts. Expanded fee shifting in public interest litigation. These are some of the recommended rule changes now being mulled by the state Supreme Court. The proposals came in a clutch of committee reports published for comment in the March 1 issue of the Law Journal. While the vast majority are housekeeping in nature, some have the potential to palpably change areas of practice. Judicial participation in plea bargaining is one such change. The Criminal Practice Committee voted 9 to 7 to amend R. 3:9-3 to allow judges to weigh in on negotiations upon either party’s request. Prosecutors have bitterly opposed the change since 1988 out of fear it would undercut what they deemed to be fair sentences. The county prosecutors’ association filed a dissent, which warned that the change could transform plea bargaining into a full-blown adversarial process. Prosecutors do favor a change that would allow issuance of arrest warrants over the telephone. Search warrants already can issue over the phone but judges must authorize arrests in person, except in Bergen and Hudson counties, where a pilot phone program has been under way since 2002. The proposed amendment to R. 3:2-3 would allow issuance of warrants based on information communicated by phone, radio or other electronic means. The judge would record what was said with a tape recorder or stenographic machine or, lacking those, handwritten notes. On finding probable cause to issue a warrant, the judge would direct the applicant to enter the authorization verbatim on the warrant form and note that it was done by phone. Hudson County Prosecutor Edward DeFazio says the program has been used in less than 5 percent of arrests and has been helpful. He is not aware of any case where a warrant was issued in error or was found to have a problem. Other suggested changes in criminal practice reflect the impact of technology. An amendment to R. 7:2-1 would enable e-ticketing in municipal courts by authorizing use of electronic signatures. The Municipal Court Rules Committee report notes that some parking tickets already are issued electronically using a handheld device and the rule change anticipates expanding beyond this. The Administrative Office of the Courts is working with the state police to develop an “e-ticket” and has secured a federal grant to develop an Internet-based system for processing criminal complaints. Implementation is expected this year. A proposed criminal rule change would ensure that agreements to trial on stipulated facts, which can have the same effect as a guilty plea, are voluntary. The committee proposed treating such agreements like pleas by amending the plea rule, 3:9-2, to allow written stipulations of fact, opinion or state of mind, to supplement guilty pleas. Another suggested amendment to the plea rule would require placing defendants under oath during the plea colloquy. The Division of Criminal Justice suggested it as a way of reinforcing the integrity of the plea process, and it has been required since in a July 2003 administrative directive. Civil Practice On the civil side, the Civil Practice Rules Committee supported amending R. 4:17-4 to require an expert’s report to include the expert’s compensation and a list of proposed trial exhibits, despite objections that the choice of exhibits was part of the lawyer’s trial strategy. The committee, however, dropped the idea of requiring a list of other cases where the expert had testified in the prior four years, after a subcommittee came out against it. The concern was that “it would favor the use of professional experts and eliminate the treating physician as a viable witness.” Another change involves procedures for videotaped testimony. Suggested amendments take note of how common they have become by shortening the R. 4:14-9 notice from 30 to 10 days, while expanding the time to object from 30 to 45 days. The rule applies equally to discovery and de bene esse depositions and to fact and expert witnesses. Public interest lawyers got good news with the committee’s recommendation of a limited fee-shifting rule in state constitutional cases. The proposed amendment to R. 4:42-9 would allow judges to award fees and expenses up to $150 per hour for lawyers and $50 for clerks and paralegals. It prohibits enhancement but allows abatement for hardship, and judges can consider settlement efforts. The proposal is the culmination of a six-year process in which a split committee several times recommended against a rule and each time was sent back by the Court for another look. The committee ultimately voted 18 to 14 in favor; the minority said it was up to the Legislature to make the change. Frank Askin, a professor at Rutgers Law School-Newark who spearheaded efforts for the rule change, disputes that view, noting that the Court has authorized fees in a variety of situations under R. 4:42-9. While the proposed rule “is not everything the public interest community would have liked, it’s a big step forward,” says Askin, who heads the Rutgers Constitutional Litigation Clinic. The Civil Practice Rules Committee also recommended a new rule, 4:44A, authorizing the transfer of structured settlement payments and establishing procedures. The transfers have been allowed since 2002 by court order, which relaxed the existing rule. The committee deferred decision on whether to add procedural safeguards for protective orders on discovery documents. The suggestion came from Mercer County Superior Court Judge Jack Sabatino, a committee member, who presided over Estate of Frankl v. Goodyear, a products liability case where consumer advocates sought documents the parties had agreed to protect. A subcommittee recommended amending R. 4:10-3 to require good cause for a protective order, even if the parties agree. The committee however, voted it down, 18 to 17. The committee said it might revisit the issue depending on what happens in Goodyear, on appeal to the Supreme Court. Evidence Another postponed matter involved a Law Revision Commission query on a mediation communication privilege in the Uniform Mediation Act. The Rules of Evidence Committee generally favored the privilege but requested a modification requiring mediators to testify in court if all parties waive the privilege. The committee will consider the issue further in the next rules cycle. The evidence committee did reject a change that would have created a hearsay exception in domestic violence cases because victims sometimes hesitate to testify in a courtroom setting. The committee followed the lead of a subcommittee that found current rules, when properly applied, adequate to prosecute batterers. Professional Responsibility The Professional Responsibility Rules Committee recommended tightening up certain procedures, raising some fees and increasing penalties. Lawyers who register late would pay a $40 late fee, instead of $25, and failure to register for five consecutive years would result in administrative revocation of the law license under R. 1:20-1(d). The R. 1:20-17 costs imposed for ethics violations would jump as high as $2,000, with the committee pointing out this would be the first boost since 1995. Applying for reinstatement after discipline would cost $750, up from $500, and lawyers who were late in complying with R. 1:20-20 would be penalized by a six, rather than three, month delay in considering their application. In another change, the committee suggested that a lawyer who represents another lawyer in defending ethics charges not be allowed to supervise that lawyer who defended the ethics charges, R. 1:20-18(j). It would apply the same standard for disqualification to panel members and hearing masters as applies to judges, R. 1:20-6. The committee rejected the idea of enhanced record keeping requirements as a means to deal with the problem of lawyers who use runners to drum up business, but suggested a special committee be formed to define and address the problem. Another change would make it clear that district ethics committee secretaries should screen grievances within 45 days, and that investigation comes only after docketing, R. 1:20-3.

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