This Memorial Day Weekend post is dedicated to the men and women serving in our nation's military, both past and present. Without their brave defense of liberty, it is indisputable that the topics I blog about would not exist.
I wrote recently, here and here, about pro bono service. Those posts addressed volunteer representation in general, and a particular immigration matter of mine. In New Jersey, there is an unbroken history, dating to colonial times, of each lawyer's ethical and enforceable obligation to accept pro bono assignments for indigent clients. Madden v. Delran Twp., 126 N.J. 591, 603 (1992).
Indeed, New Jersey may have been the first State to enact a compulsory representation statute for indigent criminal defendants. This statute, enacted by New Jersey legislature on March 6, 1795, stated "[t]he court before whom any person shall be tried upon indictment, is hereby authorized and required to assign to such person, if not of ability to procure counsel, such counsel, not exceeding two, as he or she shall desire." Id.
The United States Supreme Court waited 168 years to impose a similar obligation on state courts with respect to the representation of indigents in felony matters. That case, of course, is Gideon v. Wainright, 372 U.S. 335, 344 (1963).
The obligation to appoint counsel for indigent defendants applied in full force in federal courts before Gideon. The Gideon Court selectively incorporated this Sixth Amendment obligation into the Fourteenth Amendment, and made it applicable to state courts. To paraphrase the Gideon court, "This is America." Id. at 344 ("The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.")
New Jersey's 1795 compulsory representation statute was repealed around 1952. Furthermore, in 1966 the Supreme Court discontinued the practice of appointing members of the bar to provide pro bono representation for indigents in criminal matters. State v. Rush, 46 N.J. 399 (1966). Even so, the spirit of these laws did not disappear. Indeed,New Jersey Law as to compulsory representation and the effective assistance of counsel continues to apply to indigent Municipal Court defendants. N.J.S.A. 2A:158A-5.2. This system of appointment is administered as follows:
The Assignment Judge of each vicinage prepares a list of every attorney licensed to practice in New Jersey whose primary office is in that vicinage. Put differently, each lawyer licensed to practice in New Jersey falls under the jurisdiction of the Assignment Judge of the vicinage where the lawyer has his primary office. Using this list, any Municipal Court Judge in the vicinage may assign a pro bono client each year to each lawyer on the list. Defendants qualify for pro bono representation only if they qualify as indigent. Indigency shall be determined by the court uniformly and in accordance with standards provided by the AOC. Madden, supra, 126 N.J. at 606.
By stipulation of the New Jersey Supreme Court, each attorney who voluntarily gives free legal assistance through a Legal Services program, and performs a minimum of 25 hours of pro bono service, will be exempt from court appointed pro bono assignments for the following year. Notably, the stipulation applies to any indigent client in any litigated matter.
In my situation, I volunteered to represent an indigent immigration client. Among the other considerations I blogged about previously, I undertook this responsibility as a way to discharge my pro bono duties. This duty may be discharged with 25 volunteer hours. Without disclosing the number of hours I have committed so far for my client, I am inclined to say I have exceeded 25 hours. This does not include travel time for client visits, witness interviews, and court appearances. With the outcome of this matter yet to be decided, I anticipate spending more time on this matter before it comes to a close. Irrespective of the court's final determination, my representation of this client has enabled me to serve the public.
This post began with a dedication to our men and women in uniform, and they remain on my mind at its close. Just as it would not be possible for me to write about these topics without their brave defense of liberty, similarly I would not be able to serve the public in this capacity were it not for their sacrifices. The criminal justice system encompasses many values. These values often appear to conflict. Nevertheless, these are deeply rooted American values. One can begin to appreciate this more fully when one realizes that many people died to protect these values. This is one reason I am grateful to our soldiers, both past and present, this Memorial Day Weekend.
