Responding to Congressional pressure and the problem of substantial delinquencies in court-ordered child support payments – much of it owed to the state which sought to recover welfare payments – New Jersey in 1998 amended its child support act, providing in NJSA 2A:17-56.41 (a) for suspension of driving licenses “as a matter of law” if a child support arrearage equals or exceeds the amount of child support payable for six months or court-ordered health care coverage for the child is not provided for six months”. Judges, on the recommendation of probation officers, issued failure to pay (FTP) warrants by virtue of which the statutes provides the “ obligor’s driver’s license shall be suspended by operation of law”.
In Trenton Superior Court Judge Mary Jacobson has ruled that this “automatic” suspension of driving privileges violates both “due process” and “fundamental fairness”. Relying on our State Constitution in her 187 page opinion in Kavadas v. Martinez as Chief Administrator of the Motor Vehicle Division, the Mercer County Assignment judge enjoined such automatic suspensions and gave the State 120 days to devise regulations to eliminate this practice by which some 20,000 people each year have lost their driving licenses without notice or an opportunity to be heard.
The obligation to pay child support depends on the ability to comply with court-ordered child support payments. Delinquency is concentrated among low income parents with support obligations. It is only willful failure to pay that is enforceable and sanctionable. Jacobson therefore ordered the state to provide counsel to indigent obligors who seek to demonstrate their inability to pay, typically due to changed circumstances such as job loss, ill health, etc. Building on the landmark ruling in Pasqua v. Council (2006), in an opinion by Justice Barry Albin the state Supreme Court required that “attorneys be appointed to assist indigent non-custodial parents facing incarceration at child support enforcement hearings”.
Aside from the automatic license suspensions enjoined, in some circumstances a hearing officer may recommend or a judge may order suspension of a license as a punitive and coercive measure. Plaintiffs, represented by the lawyer who prevailed in Pasqua, sought to extend the right to appointed counsel to all indigent obligors who faced serious consequences for failure to pay child support. Judge Jacobson extended the Pasqua principle to some civil enforcement of litigants’ rights hearings. She explained that “both due process and fundamental fairness require courts to provide counsel to indigent obligors at any hearing at which a hearing officer may recommend a driver’s license suspension to a court, or at any hearing when the family court itself is considering a driver’s license suspension.”
In her comprehensive opinion Judge Jacobson took note of a 2006 study by the Bloustein School of Planning and Public Policy with the New Jersey Motor Vehicle Commission – Motor Vehicles Affordability and Fairness. The report “found that 42% of individuals who had their licenses suspended lost jobs as a result of the suspension, 45% of those who lost jobs could not find another job, and 88% of those that were able to find another job reported a decrease in income.” Jacobson wrote that “[e]ven though most of the Report’s findings addressed license suspensions in general and did not focus on child support-related suspensions, it is reasonable to assume that the affected dependents likely included many children who are the subject of child support orders, and the very individuals that the automatic license suspensions were intended to benefit.” The Bloustein/MCV report also found that in low income areas “child support suspension rates for drivers…were ten times higher than the Statewide average.”
Judge Jacobson’s ruling addresses an important public problem. It is to be hoped that Philip Murphy, the state’s Democratic Governor, his Attorney General, and the Division of Family Development will work diligently and earnestly to produce the new regulations which the court has granted 120 days to formulate. Judge Jacobson declined to make her order retroactive. Thousands of parents – especially low income -doubtless remain stranded without driving privileges. Their status is something which the Legislature can and should address.
Finally, as the judge urged, the Legislature should “remove the provision directing automatic suspension of drivers licenses upon issuance of a support-related warrant.” Judge Jacobson opined that “[s]uch an amendment would also end New Jersey’s outlier status as the only state utilizing this linkage and would restore the procedural protections originally afforded to obligors facing driver’s license suspensions.”
– George Conk
December 14, 2018
ABA Formal Opinion 481 (April 2018)
A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error
A perhaps too little recognized irony of the duties of loyalty, diligence, and competence we owe our clients is that the dangers faced may be of our own making. When we have made a mistake – missed a deadline, failed to join a party needed for proper resolution, or otherwise put a client’s interests at risk a conflict of interest arises. Our duty of reasonable consultation (RPC 1.2) generally requires us to keep the client informed of our efforts. But that duty is sorely tested when we may have caused the client harm. When must we tell the client? He ABA in Formal Opinion 18- 481 has recently addressed that.
The ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion, Rule 1.4, requires that ethical lawyers “self-report” to a current client if they have erred in the client’s representation and if the error is material. The test is whether a disinterested lawyer would conclude that the error (a) is reasonably likely to harm or prejudice the client; or (b) is of such a nature that it would reasonably cause a client to consider terminating representation even in the absence of harm or prejudice.
RPC 1.4(a) requires a lawyer to promptly inform a current client (a) of any decision or circumstance which requires the client’s informed consent; (b) to reasonably consult with the client about the means by which the client’s objectives are to be accomplished; and (c) to “keep a client reasonably informed about the status of a matter.” RPC 1.4(b) also requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” In a broader context, the guiding principle which furnishes the foundation for RPC 1.4 is that “the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interest.”
Model Rule 1.7(a)(2) provides that a concurrent conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the lawyer.” Where a lawyer’s error creates a Rule 1.7(a)(2) conflict, the client needs to know this fact to make informed decisions regarding the representation, including whether to discharge the lawyer or to consent to the conflict of interest. At the other extreme, an error may be minor or easily correctable with no risk of harm or prejudice to the client.
It is noteworthy that the ABA concludes that the duty to report is not owed to a former client. But it seems to me that if a lawyer has breached the duty to report his/her own error there may still be a duty – and the malpractice statute of limitations may well be tolled by the failure to disclose one’s error.
As the ABA Opinion 481 observes various jurisdictions have over the years addressed the self-reporting obligation as a corollary to RPC 1.4 and 1.7(b). New Jersey’s Supreme Court Advisory Committee on Professional Ethics in its Opinion 684, published in 1998, has stated that “when the attorney ascertains malpractice may have occurred, even though no damage may yet have resulted, has an obligation to disclose this to his or her current client.”
In New Jersey where I practiced for thirty years and remain an active member of the bar our Supreme Court in the 1997 case of Olds v. Donnelly, reminded attorneys that they have an obligation to notify clients when the client may have a legal malpractice claim, even though notification will be adverse to the attorney’s own interest. The Court there relied on RPC 1.7(a)(2) which states that a conflict of interest arises if “there is a significant risk that the representation of one or more clients will be materially limited by … a personal interest of the lawyer”; which, therefore, requires the client to be advised of the attorney’s error in order for the client to make an informed decision as to whether to discharge the lawyer or to consent to the conflict of interest.
One footnote, not mentioned in this excellent obituary by Richard Sandomir in the Times, is that In 2006 Gibbons directed two young lawyer lobbyists at his law firm to press to accomplish the repeal of the death penalty by the New Jersey Legislature. They helped to bring about repeal in December 2007, an event marked by illumination of the Colosseum in Rome. – gwc
A true role model. A great man, a great lawyer, a great judge, a great teacher.
John J. Gibbons Dies at 94 | Newsroom | Gibbons P.C.
Our co-author Bruce A. Green has a terrific piece in the current volume of The Professional Lawyer titled “The Challenges and Rewards of Teaching Legal Ethics.” As a newer member of the PR community, I can’t agree enough with Bruce’s recognition of the support of the community of PR professors. Thank you all.
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