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The New Jersey Supreme Court committee charged with drafting a new disciplinary rule for lawyers who don’t repay their student loans has recommended that lawyers be allowed to present mitigating factors to avoid suspension. If implemented, the proposal would treat lawyers differently from other professionals — such as doctors or engineers — who under a 1999 law face automatic suspension of their licenses if they fail to repay a student loan. The court’s Professional Responsibility Rules Committee says lawyers should not face the loss of their license without an opportunity to be heard. Its recommendation “tries to honor both the legislature’s concern about defaulted student loans and the court’s traditional concern with providing adequate due process to an attorney before discipline is imposed,” says the committee chairman, former New Jersey Supreme Court Justice Stewart Pollock. The committee proposed two alternative rules in a report published as a notice to the bar (164 N.J.L.J. 542). Public comment on the proposals will be accepted until July 2. The first proposal, Rule A, which the committee recommends the court not adopt, would mandate automatic suspension for any lawyer who has defaulted on a student loan, based on a certification from a lender or guarantor of the loan. That’s the process followed in the case of other state-licensed professionals. If adopted, a lawyer would have no opportunity for a hearing before the Disciplinary Review Board. However, the lender would have to certify that, as part of its debt collection attempts, the attorney was allowed an administrative hearing in accordance with state and federal collection laws. It’s the second proposal, or Rule B that the committee recommends the court adopt. Under Rule B, the lender’s certification of default would still constitute “conclusive evidence” of the lawyer’s failure to repay the student loan, and the lawyer couldn’t challenge the default. But the attorney could argue to the DRB that there were mitigating circumstances relating to the default, and that therefore suspension shouldn’t be imposed. For example, a lawyer might have a spouse or child with a serious illness and mounting medical bills, says Pollock, of counsel to Riker, Danzig, Scherer, Hyland & Perretti. The relevance of such circumstances, he says, “should be evaluated case by case.” Another example of mitigating circumstances, which the committee cited in its report, would be co-signer status. A lawyer, for example, who co-signed a student loan for a son or daughter shouldn’t necessarily lose his or her own license because of the child’s default, says Pollock. Under Rule B, the DRB would ultimately determine the relevance of such circumstances to the penalty imposed, and would make a recommendation to the state supreme court. If the mitigating circumstances are compelling, the court could consider a lesser sanction than suspension. Under Rule B, as well as Rule A, if a suspension is imposed, the attorney can apply for readmission if the loan is later paid off or loan terms are being met. According to its report, the committee felt that imposing automatic suspension without giving lawyers a hearing before the DRB and an opportunity to present mitigating circumstances was too severe a remedy. Though Rule A would give some due process to attorneys by requiring lenders to give administrative hearings as part of the debt collection, it would not accord with the process usually followed in disciplinary matters. “Troubling the committee is the proposed idea that the court would not apply its usual standards for imposing attorney discipline,” the report stated. The committee “believes that Rule A treads on the court’s right to regulate the profession.” The report noted that even in cases where an attorney has been convicted of a criminal offense, there is still an opportunity to present mitigating circumstances during the disciplinary process, though the conviction itself is accepted as conclusive evidence of what occurred. However, there is an automatic procedure set forth in R. 1:20-11A for temporary suspension of a lawyer’s license for failure to pay child support, notes David Johnson, director of the Office of Attorney Ethics. The committee was charged with the task of drafting a workable rule on student loans in the wake of a 1999 law that mandated suspension for state-licensed professionals who default on their loans (N.J.S.A. 45:1-21.2). The law gave the New Jersey Supreme Court an opportunity to come up with its own procedure for disciplining lawyers (N.J.S.A.2A:13-12). That was a recognition of the traditional power exercised by the court in disciplining lawyers, says Pollock.

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