Hanan M. Isaacs's Critique of Proposed NJ Supreme Court Rule Change Is Published in NJ Lawyer Newspaper
Dear Judge Carchman,
I have been a professional mediator, arbitrator, and trial lawyer in New Jersey for close to 30 years. I have served as Chair of the State Bar Association Dispute Resolution Committee; as President of the NJ Association of Professional Mediators; and as an Arbitrator for American Arbitration Association. I served on the Supreme Court's CDR Committee from 1996 to 2000. I also served on the Supreme Court's Unauthorized Practice of Law Committee during the 1990's. I am an Instructor for NJ-ICLE's and NJAPM's Mediation Training Programs, where I teach "mediator ethics".
I file this letter to OBJECT STRENUOUSLY to Sections I(C) THROUGH I(E) of the PRRC's Report, as they relate to the activities of arbitration and mediation advocates, whether such advocates are lawyers or lay people, out of state licensed or unlicensed.
The PRRC "just doesn't get it" when it comes to ADR advocacy. ADR IS NOT INHERENTLY A COURT-BASED ACTIVITY. It does not "touch and affect" the court when performed in the "purely private" sector. If the Supreme Court wishes to MANDATE that only licensed New Jersey attorneys may serve as advocates in court-based, court-supervised, or court-referred mediations or arbitrations, then that is certainly its prerogative.
HOWEVER, when it comes to "purely private" ADR, whether involving neutral non-profit groups like American Arbitration Association, or neutral for profit groups, like JAMS, or privately administered ADR, the Court should step out of the way, as it historically did. Indeed, when I served on the Unauthorized Practice Committee of the Supreme Court, as its informal expert on ADR issues, we issued several letters to inquiring Superior Court judges and other persons that ADR simply was NOT the practice of law. It involved (and involves) contractual relationships, and people were (and are) entitled to order their business relationships, including the determination as to who should advocate at ADR proceedings, exactly as they saw (and see) fit. It was only the unfortunate publication of RPC 5.5(c) in 2004 that made an unfortunate change in our otherwise ADR favorable climate.
How ironic to consider that New Jersey established one of the clearest statements nationally, in Joint Opinion 676/18 of the Advisory Committee on Professional Ethics and Committee on Attorney Advertising, that BOTH lawyers AND non-lawyers could serve as ADR neutrals -- arbitrators and mediators -- without running afoul, respectively, of the "no multiple businesses under one roof" rule and the "no unauthorized practice of law" rule. Thus, for 15 years, ADR NEUTRALS may be lawyers or non-lawyers, but with the advent of RPC 5.5(c), 2004, the people who appeared before them, whether in court-based matters or purely privately, HAD to be lawyers. What sense does that make, other than non-sense??Moreover, the Uniform Mediation Act, which I personally helped shepherd through the New Jersey Legislature in 2004, along with Rutgers-Newark Law Professor Jon Hyman, explicitly provides, as the Committee properly determined (but then promptly failed to follow): "an attorney or other individual" may accompany a party to mediation, and PARTICIPATE in the proceedings!! This was passed by the ABA's National Conference of Commissioners on Uniform State Law in its original version, to recognize that mediation is, at its core, a community-based movement; that it emphasizes self-determination; that people should be able to make the forum user-friendly, rather than lawyer dominated.
Sadly, the only improvement of the PRRC's "new" recommendation, under Rule 5.5(b)(3)(ii), is elimination of the honored-in-the-breach registration and fee components of the "old" Rule. The "new" Rule recommendation RETAINS the nexus of out-of-state lawyer with out-of-state client or origination of the dispute out-of-state. Both aspects of the retained rule are completely out of place in the ADR world, and need to be removed instantly in the name of good public policy.With regard to the UMA, it is crystal clear that a New Jersey resident who maintains an out-of-state law license and is asked to advocate for a New Jersey mediation client in a New Jersey ADR proceeding MAY NOT LAWFULLY DO SO under the "modified" Rule. That would run afoul of the PRRC's proposal, and it should not be so.
The PRRC's reported TEXT gets matters just right in terms of the risks to New Jersey's reputation for dispute resolution, but then fails to follow its own logic in promulgating a proposal that does nothing to correct the flaws.
They did not see the forest, as the trees got in their way.It is both necessary and desirable for the Supreme Court, regarding all ADR aspects of RPC 5.5, to simply STRIP OUT the ADR provisions, and leave them "naked and uncovered" by the Rule. Extirpation is the only remedy to clearly demonstrate that the Court has no interest in regulating out-of-state lawyer activity or in-state lay advocacy. These are functions that do not and should not touch or affect the Court. There is absolutely no evidence of "badness" or overreaching as these relate to the public's interest. There is plenty of evidence in New Jersey public policy that ADR processes should belong to the parties, and that everyone else should stay out of the way.
That does not mean that the Supreme Court may not discipline lawyers who overreach as ADR advocates. Lawyers are lawyers whatever we may do. It also does not mean that parties are left without remedies against out-of-state licensed attorneys, who remain subject to the rules of conduct in their own states.
New Jersey has made itself unpopular with ADR providers under the "old"Rule, both inside and outside the State. Who wants to be forced to tattle on out of state lawyers who are doing nothing more than their in state clients ask them to do? Who wants to be concerned about calling a Newark Airport meeting of an out of state mediator or arbitrator together with out of state parties and witnesses, where the lawyers, also from out of state, are threatened with ethical misconduct, or perhaps can't collect their rightly earned fees, because it turns out the private tribunal has been "declared" an activity of the Court -- even when it is a purely private activity?? Importantly, the new "rule" does NOTHING to correct that problem. A lawyer who is a mediator or an arbitrator will be forced to warn out of state legal advocates, and may feel obligated to report them, for violations of the Rule. Neutral services providers may feel similarly obligated. If there is a choice between convening neutral tribunals in New Jersey and somewhere less provincial, there is no question but that the more enlightened jurisdiction will gain this increasingly important market share.
The PRRC, unfortunately, got so "hung up" remedying the registration and fee aspects of the earlier Rule, that it forgot to look at the fundamental flaw in the original (and now repeated) Rule, to wit: ADR is contractual; advocacy within it is not inherently the practice of law; lay people and out of state licensed lawyers safely and properly may serve as advocates; and the Supreme Court should not threaten the continued vitality of ADR practices by OVER REGULATING it. The operation may succeed, but the patient will surely die. That is not the outcome our citizens deserve. Public policy has supported the development of ADR in this state for more than 25 years. In the guise of regulating attorney practice, we should not destroy what it has taken that long for the ADR community to build.
Let the lawyers and the legal community regulate themselves, but for God's sake, please do not play the role of "Hi, we're the Government, and we are here to HELP you." ADR processes are self-regulating, both within the court process and privately. We do very well on our own. Our levels of client satisfaction are extraordinarily high. The number of complaints about ADR neutrals and advocates is extraordinarly low. If the legal community could boast the same data, it would declare a holiday.
The Supreme Court should not disturb a set of working systems, created painstakingly and well, to "improve" it to death. We do not need or want it, nor does the public -- or the public interest -- demand it. RPC5.5(b)(3)(ii) should be scrapped, plainly and simply.
Thank you for your kind consideration of this letter and for conveying its contents to the Honorable Justices of our Supreme Court.
Hanan M. Isaacs, Esq.
Kingston, New Jersey
