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Recused From Ranking The Administrative Office of the Courts has issued a directive to judges, noting that it would be “inappropriate to provide ratings of law schools as part of U.S. News & World Report‘s survey of ‘America’s Best Graduate Schools.’” [ See Notices to the Bar, page 52. ] Analogizing such participation to the rating by judges of attorneys as part of Martindale-Hubbell’s attorney rating system, which has long been proscribed by the Supreme Court as improper, the AOC forbade New Jersey state judges from providing their opinion on all U.S. law schools, including New Jersey’s three law schools, even as part of an anonymous and aggregate survey. This rule borders on the “silly” and is of questionable constitutionality. It purportedly prevents a non-attributional, private statement of opinion. We see no benefits accruing to anyone from this rule. The integrity of the judicial system is in no way compromised by the prohibited communication. The assessment provided by members of the bench and bar forms one important component of the overall U.S. Newsranking. We are not convinced that the analogy comparing a judge’s participation in the U.S. Newslaw school ratings to a rating system for individual attorneys is completely apt. Canon 2(B) of the Rules of Judicial Conduct provides that, “A judge should not lend the prestige of office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position of influence. A judge shall not testify as a character witness.” When a judge makes a recommendation regarding a particular attorney, it is understandable that the AOC might deem this to be lending his influence to aid the attorney’s private interests, and also how his impartiality in cases involving that attorney might reasonably be questioned. Responding to an anonymous survey about an institution, however, in which results are reported only in the aggregate after being combined with responses from members of the bar, seems to us to be at most an attenuated use of a judge’s “prestige of office.” The most that might reasonably be said is that the results of the survey are based upon the special knowledge of judges in assessing the strengths and weaknesses of law schools, more so than an appropriation of the prestige of the office they hold. We are unaware of any other state that has imposed a similar ban on its judges. It is unfortunate, therefore, that this ban may have a disproportionately negative effect on our state’s three law schools, since our state’s judges would presumably be in the best position to provide an accurate assessment of the quality of their graduates. It would be unrealistic to expect that Utah’s judges would be knowledgeable about Rutgers-Newark, Rutgers-Camden and Seton Hall, so that they may fairly compare them to the University of Utah or Brigham Young. But competition among law schools has elevated the importance of these rankings beyond all reason, and a very slight difference in quantitative score can make a huge difference in ordinal ranking. If the AOC’s interpretation of the Rules of Judicial Conduct is in fact correct, which we question, then it should logically be correct for all judges nationwide, who should be similarly forbidden from participating in the U.S. Newsranking process and plugging their favorite law schools, lest an already questionable process be further corrupted by local favoritism. Remand to a Black Hole Recent experiences have convinced us that there is a hole in the Court Rules. When cases are reversed and remanded to the trial court by the Appellate Division they are almost by definition problem cases. The appellate court has determined that a motion or trial judge has committed reversible error or, occasionally, that a jury has gone so far afield that the appellate court must step in to undo the error and compel disposition of the case by the next jury. The appellate court’s opinion acts as the order of remand as well as the mandate to the trial division to reschedule the new trial or to take the necessary steps to arrange “for further proceedings consistent with this opinion.” Sometimes, however, these remanded cases languish in the Law Division clerk’s office until eventually one of the attorneys writes or phones to learn of its status. In other instances, when the case is returned for further proceedings in the trial division, additional discovery is indicated or required as the result of the appellate court action. But nothing in the rules contemplates orderly additional discovery or post-appeal scheduling of a remanded case. Certainly the so-called Best Practices rules, with their no-longer-applicable trigger dates, cannot apply to further discovery or time deadlines for bringing the remanded case to an arbitration or trial date. In the interest of efficiency, then, we suggest that the Supreme Court’s Civil Practice Committee address this problem and recommend to the Court a rule requiring a case management conference to be scheduled within a short specified time after the date of the opinion remanding the case. In that way a discovery or other necessary scheduling order can be entered and the matter can proceed in an expeditious and orderly fashion to conclusion. This will benefit both the judicial system and the parties to the litigation, reflecting the Court’s philosophy of efficient and fair administration of the litigation process. Trolling the Municipal Court If you or someone in your family or one of your clients has received a municipal court traffic summons in the last few years, you probably know of the ferocious marketing being done to reel in municipal court defendants as clients. According to the Supreme Court’s Committee on Attorney Advertising, there has been a deluge of impersonal solicitations, primarily by single practitioners and small firms, marketing lawyers’ availability and promoting a sense of urgency by use of coercive letters that trumpet consequences to the defendant if the particular lawyer is not retained to save them. These attorneys, either directly or through companies that furnish this service, obtain the names of individuals who have been ticketed. Although the public at times decries the fact that this accusatory information is publicly available, any member of the public, including attorneys, can obtain information as to municipal court charges under R. 1:38, the judicial-branch analog to the Open Public Records Act, N.J.S.A. 47:1A-1. Given the public availability of this information, the Committee on Attorney Advertising focused on complaints from members of the public and other lawyers, pointing out the aggressive manner in which some attorneys troll for clients by direct mail solicitation, RPC 7.3. A common thread that apparently ran through this marketing method was to misstate the nature of the municipal court proceeding, over-promise what the lawyer would be able to accomplish and highlight penalties, even when they were not a realistic consequence of conviction or plea on the particular charge. In its Opinion 29, published Jan. 12, 2004 [ 175 N.J.L.J. 159 ], the committee catalogued a litany of rule transgressions common to many of these letters, enterprising in their audacity but unethical in their substance. To rectify these common abuses the opinion has prescribed the content and format of future municipal court solicitations. Lawyers who set out to troll the municipal court records for leads must specifically address the prospective client, verify the accuracy of all statements made in the solicitation letter, state the specific nature of the offense for which representation is offered, not raise unjustified expectations or misstate the nature of the proceeding or the role of the prosecutor and judge, and not scare by raising potential effects of a conviction or plea that are unrelated to the charge. Attorneys who wish to develop a municipal court practice are urged to familiarize themselves with Opinion 29, which can be found by accessing “New Jersey Ethics Opinions.” Knowing the ground rules of this marketing technique can avoid embarrassment and the sanctions for violating RPC 7.1(a)(1), the use of false or misleading information, RPC 7.1(a)(2), the creation of unjustified expectations, RPC 7.1(a)(3), comparing lawyers’ services, or RPC 7.3(c)(2), overreaching, making unwarranted promises, coercing or intimidating clients. It is hoped that the new guidelines will shut down these marketing abuses and rein in further erosion of the general public’s trust in the bar, many of whom know lawyers only through marketing devices such as this type of trolling for clients.

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