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By a 56-50 margin, the New Jersey State Bar Association’s General Council voted on Oct. 13 not to support a resolution calling on the state supreme court to abolish mandatory pro bono. But the Salem County Bar Association, which drafted the resolution, will continue to push the issue, says its president, Martin Siegel. He adds that the council’s close vote “shows there is grassroots support for changing the system.” In fact, two votes had to be taken. The original tally, 51 to 50, was so close that it prompted a recount. The resolution would have urged the supreme court “to authorize appointment of the Office of the Public Defender and other publicly funded agencies as counsel for the indigent persons to whom they are statutorily obligated, regardless of whether or to what extent the Public Defender’s Office or such agencies are funded.” It also asks the executive and legislative branches “to provide publicly funded legal representation for all indigent persons who face consequences of magnitude.” In addition, the resolution asks the supreme court “to grant New Jersey’s Assignment Judges broad discretion in working with county bar associations to implement voluntary systems in each vicinage that would assist the courts in providing qualified legal representation for indigent persons who are not entitled to publicly funded counsel.” Siegel, a partner in Pennsville, N.J.’s Doroshow, Pasquale, Krawitz, Siegel & Bhaya, says he plans to confer with the State Bar trustees and other county bars to learn which provisions were particularly thorny and possibly rework the resolution to make it more widely palatable. Seymour Chase, chairman of the Bar’s Executive Committee, is less sanguine that the resolution can pass, even with some tinkering. The council’s vote followed by four months the State Bar trustees’ rejection of a similar measure by a much wider margin. State Bar President Barry Epstein declines to give precise numbers but says the previous resolution was “overwhelmingly defeated.” The trustees rejected the measure because it was too strong and was the product of a problem with screening for income eligibility that is peculiar to Salem County, Epstein says. “I have been around the state and met with the presidents and presidents-elect of the various Bars, and the only place where pro bono has seriously emerged as an issue is Salem,” Epstein says he told the council before its vote. Regardless of any rewording, says Epstein, “a resolution is not the way to go.” He and Chase say that the State Bar, which opposes mandatory pro bono, prefers to continue what it has been doing to try to change the system. Epstein says he wrote to New Jersey Chief Justice Deborah Poritz this spring in the wake of the court’s response in May to the November 1998 recommendations of the Ad Hoc Committee on Pro Bono Assignments, headed by Ocean County Assignment Judge Eugene Serpentelli. Among other things, the committee called on the legislature to provide enough funding to end mandatory pro bono. Epstein declines to disclose the contents of the letter, saying only that he met with Poritz and “we’re making good progress.” The recent requirement that each municipality appoint a public defender has eased the situation somewhat, causing a drop in the number of mandatory pro bono assignments throughout the state, he says. Once statistics for calendar year 2000 assignments are available, he says, “we will be able to see where we are.” Ultimately, a drop in pro bono assignments is not enough, he adds. “We hope to get the point where there is minimal, if any, mandatory and a voluntary system is the main system.” The screening problem mentioned by Epstein came to light last spring when newly appointed Assignment Judge George Stanger ordered a review of Vicinage 15 pro bono assignments for 1999 and the first quarter of 2000. According to William Horner, the Salem County Bar’s immediate past president, Stanger found that the 70 appointments of Salem County attorneys during the period exceeded the 39 in Gloucester and the 49 in Cumberland, even though Salem has many fewer attorneys than its two neighbors. The approximate 60 members of the Salem Bar contrasts sharply with Cumberland’s 230 and Gloucester’s 280. The finding prompted further analysis showing that in Salem County, “lawyers were assigned in pro bono cases where it was inappropriate to assign them” because the defendants did not qualify as indigent, Stanger says. Seventeen of the assignments during the period, nearly one-fourth, fell into this category, while in another nine cases — or more than one-tenth — insufficient data existed to confirm eligibility. Stanger tried to address the problem by revising Form 5A, used to determine eligibility, to require more information about sources of income and by stepping up the scrutiny of completed forms. He says he has not yet looked at second- and third-quarter information to determine whether the eligibility problem has been eliminated or reduced. Amelioration will not suffice for Salem County, which, Horner says, opposes mandatory pro bono in principle as well as in practice. “Even one mandatory case that should be handled by a public defender is one too many,” he says. “New Jersey attorneys are not uncharitable,” he says, “but to set up a system of forced labor is bad for all kinds of reasons.” While municipal public defenders and tightened administration might yield short-term improvements, warns Horner, it is possible that mandatory pro bono will expand if parents with outstanding child support obligations are ruled eligible for court-appointed counsel. “As long as the supreme court maintains the program, the private Bar is fair game for anything that results in consequences of magnitude,” Horner says. A bill designed to ease the problem was introduced in June by state Senator John Adler, D-Camden, and is awaiting action in New Jersey’s Budget and Appropriations Committee. The measure, S-1458, would provide the Public Defender’s Office with $2 million to fund representation of indigent defendants and require the PD to report to the legislature and governor within a year of enactment on how far the funds went.

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