Mediators Back Plan To Lift Restraints On Non-N.J. Lawyers in ADR Matters

By Henry Gottlieb

New Jersey Law Journal

March 23, 2010

New Jersey mediation professionals are supporting a proposal to reduce barriers to out-of-state lawyers who practice alternate dispute resolution.

The New Jersey Association of Professional Mediators (NJAPM) announced Tuesday that it favors a Supreme Court committee's recommendation to amend Rule of Professional Conduct 5.5 to eliminate the chance that out-of-state attorneys would be engaging the unauthorized practice of law if they engaged in ADR in the state.

Representing a New Jersey client in a New Jersey dispute is a no-no under the current rule. It says non-New Jersey lawyers can take part in alternate dispute resolution in New Jersey but only for existing clients and only if the dispute originates in a jurisdiction in which the lawyers is admitted.

The Professional Responsibility Rules Committee's proposed new RPC 5.5(b)(3(ii) would permit non-New Jersey lawyers to engage in ADR if "the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which pro hac vice admission is required.

ADR practitioners would no longer have to associate, register or pay an assessment under the new rule, published on March 15 for comment by April 14,

Mediation professionals have expressed concern that protectionist rules make New Jersey an unfriendly forum for alternate dispute resolution.

"NJAPM appreciates the committee's recognition that the proposed change will encourage ADR and that imposing additional requirements on cross-border attorneys seeking to engage in ADR processes on behalf of their clients will deter them from selecting New Jersey as their forum of choice," association president Robert McDonnell said in a letter to Judge Glenn Grant, the acting administrative director of the courts.

NJAPM has more than 400 members and is the largest mediation organization in the state, McDonnell said.

McDonnell said a change in the rule would end a conflict with Opinion 43, published in 2007 by the state Supreme Court's Committee on the Unauthorized Practice of Law, which recommends that mediators serve as gatekeepers for enforcement of RPC 5.5.

"Having the mediator ask the parties and counsel if they are properly admitted in New Jersey can suggest a lack of neutrality - something which is critical to the mediation process," McDonnell said. "Mediators should not be enforcers of the RPC in their mediations.

The proposal also would end a conflict between the current RPC 5.5 and the Uniform Mediation Act of 2004, which permits mediation participation by out-of-staters, both lawyers and nonlawyers, McDonnell said.

Hanan Isaacs of Princeton, one of the state's leading ADR practitioners, also supports the proposal.

ADR has a successful record, he suggests, because the parties have a large measure of control and the process avoids formality, regulation and restriction.

"I would rather parties pick me for these assignments over lay advocates," he said in a letter to Grant. But he added, "If parties want out-of-state legal counsel or a nonlawyer making their case to a mediator or an arbitrator, then too bad on me. That is their choice and the law should respect it."

"In my view, the Supreme Court should regulate lawyers in their court-based or directly court-related functions, and not impose itself into the purely private and contractual ADR marketplace," he said. "The legal system does not gain when the Court so acts, and the public loses. That is not good public policy."

The new proposals correct some very serious problems with existing Rule 5.5, but without doing damage to the public policies underlying the existing rule," he said.