State Bar Association members will start voting this week on a proposed bylaw amendment that would require bar officers to practice law primarily in New Jersey as a condition for holding their posts.
The measure was crafted after one officer, Thomas Prol, being denied the Nominating Committee’s nod for higher office because he took a full-time job in New York, mustered a maverick campaign for the post of second vice president.
The bylaw change, if approved, would take effect immediately, and it is an open question whether it would prevent Prol, if he is elected, from taking office.
The proposal has caused angst among critics in the bar who say it reeks of special legislation fomented by bar leaders unsympathetic to Prol and, worse, has the potential to be abused for discriminatory reasons.
The proposal would add to Article III of the bylaws, which controls election of officers and trustees, a proviso stating: "To be eligible to serve as an officer, a member’s practice of law shall be primarily in the State of New Jersey."
It is one of five bylaw revisions up for a vote and requires approval by two-thirds of those casting ballots. Ballots, which include the bylaw questions as well as the slate of candidates for officer and trustee positions, are to be mailed on April 15.
Former State Bar President Richard Badolato, of Roseland, who instigated and organized collection of the 2 percent of bar members’ signatures needed to get the amendment on the ballot, says it is a rational, good-government measure, intended to ensure that New Jersey bar officers have New Jersey bar members’ interests at heart. He says New Jersey bar leaders should practice full time here to wield authority on issues important to the state’s lawyers.
"The people I got the signatures from felt very strongly that people who have skin in the game would be the people best able to face the Supreme Court, the Legislature and the governor and represent the profession," he says.
But vociferous opposition came from the Lesbian, Gay, Bisexual and Transgender Rights Section, which has endorsed Prol — the bar’s first openly gay officer — in the election.
In an email circulated among other bar groups and committees the past week, the LGBT section said the proposed revision is vaguely worded. "It seeks to create classes among New Jersey attorneys and leaves sufficient ambiguity so that existing leadership can use the phrase ‘primary practice’ to prohibit other attorneys that are not ‘in their fold’ to have any meaningful participation in the leadership of NJSBA. [ Link: Why the LGBT Rights Section Opposes the Proposed Bylaw Change Regarding Residency.]
"By limiting officers and trustees to those members whose practice is ‘primarily in the State of New Jersey’ the new amendment can be interpreted to prevent attorneys who practice in multiple jurisdictions, attorneys that practice primarily out-of-state, but have an office and/or a home in New Jersey, and working mothers either on or anticipating a maternity leave without a clear plan on when they might resume their practice."
The LGBT section said the amendment lacks any "rational basis tied to the well being of our general membership" and would make the association more "insular" and "protectionist" at a time when "the practice of law is becoming more open, diverse and mobile."
In a responsive letter, Badolato disputed the assertion that the bylaw amendment would exclude a large portion of association members from serving in leadership roles [ see Voice of the Bar, this issue]. He called the claim that postpartum mothers and lawyers practicing in more than one jurisdiction would be excluded from leadership "intellectually dishonest."
Badolato also rejected the assertion that the proposed bylaw is ambiguous, saying that "people of good faith and common intelligence will have no difficulty understanding what the qualification requirements Proposed Amendment 1 to the bylaws seeks to impose."
He called it "regrettable that a straightforward issue of officer and trustee qualifications has become polarized solely because a few special interests have taken up the cudgel of one person who will be adversely affected thereby, solely because he is a member of that group."
In reply to Badolato, LGBT section chairwoman Nina Remson of Hackensack said, "Our concern is not for only one person, but for all members of the NJSBA who may be negatively impacted by this proposed bylaw amendment, which Mr. Badolato has demonstrated is subject to several interpretations."
Another critic, State Bar Trustee Sandra Ayres, of Lyndhurst, says the proposed amendment "would establish an inscrutable eligibility litmus test," noting the "primary practice" criterion has not been vetted by the bar’s Bylaws Committee or the board of trustees.
"As practitioners we can appreciate the potential for arbitrary and discriminatory application where an eligibility test is ambiguous," Ayres says in a letter to the editor, suggesting that the proposed criterion, if adopted, "may be subject to elitist application and abuse." [ See Voice of the Bar, this issue.]
Some veteran bar members raised concerns about applying the "primary practice" bylaw, if passed, to candidates in the same election cycle.
Cynthia Jacob, of Murray Hill, the 1996-97 State Bar president, says that makes little sense.
"Thinking logically, if it’s never been in the bylaws before and it passes, the next question is, does it apply retroactively? I would suggest it probably would not," Jacob says. "If there’s been no notice, no discussion of this, you wouldn’t be applying it retroactively."
Robert’s Rules of Order, which govern bylaws creation and revision in most organizations, say amendments to the bylaw article governing officers may raise difficulties in relation to the time at which adopted changes take effect, unless special care is taken. A society can amend its bylaws so as to affect the emoluments and duties of the officers already elected, or even to abolish an office; and if it is desired that the amendment should not affect officers already elected, a motion so specifying should be adopted before voting on the amendment, or the motion to so amend can have added to it the proviso that it shall not affect officers already elected [Robert's Rules, 11th ed., pp. 597-98].
No other bar section or committee has taken a public position on the bylaw amendment. The Young Lawyers Division issued an alert to members of its executive committee on Wednesday, inquiring if they wanted to hold a vote by conference call, but as of Friday they had not received enough affirmative responses to form the needed quorum, says YLD chairman Jonathan Lomurro.
Prol, for his part, says the bylaw amendment was "written for a curious purpose that clearly had me in mind. It pains me that this is being done on my back. … I’ve spent a decade trying to make the bar more inclusive." •