by Alex Ebert
Attorneys advocating for indigent elderly and mentally-ill New Jerseyans warned the state high court that rules forcing them to pay for expert witnesses out of their own pockets make it difficult for them to protect their clients.
Without fee-shifting to pay attorneys opposing the state in conservatorship cases that they otherwise take pro bono, “the house is on fire,” said Brian C. Lundquist, the attorney for a man with disabilities—referred to has Hank—in a two-hour oral argument Monday.
The dispute centered around Hank’s case in which the state, and all courts, praised the work of his attorneys. Sussex County initially sought a “plenary guardianship” stripping Hank, injured in a car crash, of most of his legal, financial, and healthcare rights. Two lawyers assigned to the case by the trial court found that made no sense considering his relative independence, and they got the county to change its mind and provide a limited guardianship after hiring a rebuttal expert.
The case centers on the question of who pays for the essential attorney time and medical expertise spent saving the man’s liberties.
The trial and appeals courts agreed with Sussex County that it’s small adult protective services branch—with an operating budget under $100,000—shouldn’t be forced to pay for this and other cases. The county argued it needs its cash to protect its “most vulnerable” citizens and the communities in which they lived.
Lundquist, in an argument that was heated and led to frequent interruptions between him and the justices, said he couldn’t hide his emotion.
“An affirmance would be akin to the clearest message you can send to any counsel assigned to represent these individuals that under all circumstances you will not be paid, and that includes all expenses for experts,” he said. “Don’t send that message. The house is on fire, let’s not argue about picking up the hose.”
Government Immunity
Under New Jersey law state and county protective services staff are tasked with evaluating those who potentially pose a danger to themselves or others with the help of hired experts to evaluate the capabilities of “allegedly incapacitated individuals.” Where possible the process leads to consent to government services ranging from housing to medicine.
However, sometimes a person’s capacity indicates they can’t consent and cases must be opened. Courts here assign attorneys to represent clients—often indigent—to ensure process is followed and citizens keep their rights where appropriate, but it doesn’t always pay for those experts or the lawyers’ time.
The courts should only charge the state shifted-fees if there are damages involving malfeasance on the part of the government, William G. Johnson, Sussex County’s attorney said. Otherwise, there would be an incentive for the system to break down, and for opposing attorneys to prolong litigation to seek higher fees.
The New Jersey Attorney General, which came in supporting the county, agreed with Johnson. They both said that fees, and maybe even expert witness fees, should be the responsibility of pro bono counsel.
“I’m sympathetic, but that’s what we should expect members of the bar to do,” Johnson said. “Because we’re a dedicated profession, we’re called upon to do these things.”
Rules, Statute Interplay
All of the justices wrestled with the lack of a statute on-point regarding the fees at issue. In other contexts, like public defense of criminal defendants, there’s a pathway for payment of essential expert reports for pro bono counsel.
Deputy Attorney General Stephen J. Solcum tried to move the judges to a standard somewhat in between Lundquist and Johnson.
He said that allegedly incapacitated persons’ counsel should be able to apply, in advance, for the court to get an expert to rebut the state. Then the court could later use its discretion to potentially split the fee between the litigants.
However, upon pressing by the judges, he agreed that logically that process doesn’t align with the state’s statute that provides broad immunity to the state and a guardianship court rule that allows courts to grant potential fee shifts with their discretion.
Lundquist said trying to square those two legal sources was “impossible game of ‘go fish.’” Instead, he would just leave the matter up to the trial court, granting judges wide discretion to pay for experts and award attorneys that go the extra mile for clients.
Otherwise, he said, New Jersey should expect counties to always seek plenary guardianships. Government workers don’t want to be blamed if people they’re overseeing “get out of an apartment and get hit by a car crossing the street.”
Because of that incentive, he said, the state will default to more protection than may be needed, and their experts need to be rebutted because they’re preferences align with the state.
“You know the thing about experts,” Lundquist said. “I can get you whatever opinion you want if you pay the right price.”
The case is In the Matter of A.D., an Allegedly Incapacitated Person, N.J., No. A-30-23, 9/9/24.
Full Article & Source:
Guardianship Lawyers Urge NJ to Shift Fees for ‘Most Vulnerable’
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