(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 14, 1995 -- Decided April 24, 1995
PER CURIAM
The Division of Youth and Family Services (DYFS) in the Department of Human Services
petitioned the Court primarily to determine whether State or County government is responsible for
reimbursing pro bono counsel for incidental litigation expenses in a custody action instituted by DYFS for
termination of parental rights.
DYFS is now responsible for the costs of production and copying of transcripts for pro bono counsel
to prosecute an appeal. However, DYFS urges the Court not to approve reimbursement to pro bono
counsel for other miscellaneous expenses, such as those for delivery services, computerized legal research,
parking, travel, and other related expenses. DYFS argues that allowing such expenses would lead to
pointless litigation over the reasonableness of those expenses. In this case, pro bono counsel's out-of-pocket
expenses totalled $2867.25.
HELD: The expenses incurred by pro bono counsel were not unreasonable and should be reimbursed.
1. Lawyers do not have an obligation to expend their personal funds when undertaking pro bono
representation in parental-rights-termination cases. Attorneys who request reimbursement are reasonably
entitled to it. Here, the expenses incurred were not unreasonable and should be reimbursed. Because of
budgetary concerns, this ruling is applicable to this case and any other cases that have not yet been
completed. (pp. 2-4)
2. To the extent possible, pro bono counsel should confer with DYFS before incurring unusual
expenses and should attempt to keep incidental expenses at a minimum.
The order of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
95 September Term 1994
IN THE MATTER OF
THE GUARDIANSHIP OF
C.A.B., JR., AND I.B.,
MINORS.
Argued March 14, 1995 -- Decided April 24, 1995
On certification to the Superior Court,
Appellate Division.
Sheila Crotty, Deputy Attorney General,
argued the cause for appellant, New Jersey
Division of Youth and Family Services
(Deborah T. Poritz, Attorney General of New
Jersey, attorney; Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Ms.
Crotty and Geraldine O. Livengood, Deputy
Attorney General, on the briefs).
Nila M. Pusin argued the cause for respondent
C.A.B., Sr. (Starr, Gern, Davison & Rubin,
attorneys; James V. Loewen, on the letter
brief).
Thomas M. Bachman, Assistant County Counsel,
argued the cause for respondent County of
Essex (Stephen J. Edelstein, Essex County
Counsel, attorney).
PER CURIAM
In this matter the Division of Youth and Family Services
(DYFS) in the Department of Human Services petitioned the Court
primarily to determine whether state or county government is
responsible for reimbursing pro bono counsel for incidental
litigation expenses in a custody action instituted by DYFS for
termination of parental rights.
138 N.J. 268 (1994). The
Appellate Division had ordered DYFS to pay pro bono counsel's
out-of-pocket expenses in connection with the appeal to that
court. When the petition was filed it was uncertain whether
state or county government must reimburse counsel for such
necessary expenses. N.J.S.A. 2A:152-17 requires counties to pay
for trial transcripts in a criminal appeal when the defendant is
indigent. That statute, however, was largely superseded by the
Public Defender Act, N.J.S.A. 2A:158A-1 to -25, which requires
that the Office of the Public Defender pay for trial transcripts
for indigents who qualify for assistance. N.J.S.A. 2A:158A-5;
State v. Arenas,
126 N.J. 504, 507 (1991). Nonetheless, the
question that remained was whether counties should provide
transcripts in child-custody actions to indigents appealing
termination of their parental rights.
In In re Guardianship of G.S., III,
137 N.J. 168, 177
(1994), we concluded that "because parental-rights-termination
proceedings are part of a unitary, centralized State program,
DYFS should undertake [such] costs." Following that decision,
DYFS filed a supplemental brief acknowledging that it bore the
burden of production and duplication of transcripts. In this case
DYFS agreed to pay for the transcript that had been produced and
to reimburse pro bono counsel for the duplication of the
transcript. In future cases, DYFS will, subject to the
requirements of In re Guardianship of Dotson,
72 N.J. 112 (1976),
cause the transcripts to be produced and the necessary copies to
be made so that pro bono counsel may prosecute an appeal.
However, DYFS has urged the Court that it should not approve
reimbursement to pro bono counsel for other miscellaneous
expenses, such as those for delivery services, computerized legal
research, parking, travel, and other related expenses. DYFS
argued that permitting reimbursement for such incidentals would
result in unnecessary and pointless litigation over the
reasonableness of such expenses. In this case pro bono counsel's
out-of-pocket expenses totalled $2867.25. Those expenses
consisted of $2002.98 for photocopying, and $864.25 for courier
fees, computerized research, and travel expenses. Based on the
circumstances of this case, such incidental expenses for all pro
bono counsel might amount to as much as $500,000 annually, which
would deplete the funds needed to provide protective services for
children.
We acknowledge the difficult social decisions presented by
this case, but we believe that pro bono counsel have already made
an extraordinary commitment to the public interest. By virtue of
their court assignments, such counsel represent indigent
defendants in as many as 200 litigated cases a year. New Jersey
Div. of Youth & Family Servs. v. D.C.,
118 N.J. 388, 402 (1990).
If DYFS were obliged to provide that legal representation, the
costs would be staggering. But in D.C., supra, we held that
attorneys assigned to represent indigent parents and their
children in parental-rights-termination proceedings are not
entitled to compensation for their legal services. We did so
because no statute authorized such compensation. Id. at 395-97.
However, our decision in D.C. did not mean that lawyers had
an obligation to expend their personal funds when undertaking
such representation. See R. 1:13-2(b) (stating that no attorney
shall be required to expend any personal funds for court fees and
charges for service of process when representing a person by
reason of poverty). Many attorneys tend to absorb incidental
litigation expenses as part of the representation. We believe,
however, that attorneys who do request reimbursement are
reasonably entitled to it.
We are satisfied that in this case the expenses incurred by
pro bono counsel were not unreasonable and should be reimbursed.
Because of budgetary concerns, we make this ruling applicable to
this case and to any other cases that have not yet been
completed. DYFS acknowledges its future obligation to provide
transcripts for indigents in parental-rights-termination cases
under Title 30. Also, it has agreed to provide the necessary
transcript copies at its own expense, and thereby eliminate the
need for duplication of such transcripts. Because of reasons of
confidentiality, it is more practical that briefs be duplicated
by counsel. To the extent possible, pro bono counsel should
confer with DYFS before incurring unusual expenses. See In re
Cannady,
126 N.J. 486, 496 (1991) (requiring private counsel for
indigents in criminal cases to confer with the Office of the
Public Defender before incurring questionable expenses).
In the same spirit in which attorneys have undertaken this
pro bono representation, we are certain that they will attempt to
keep incidental litigation expenses at a minimum. In this case,
pro bono counsel's computerized legal research was done merely to
ensure that cited cases had not been overruled. We do agree with
DYFS that whenever possible, efforts should be made to avoid
unnecessary expenses such as the use of overnight delivery
services. At oral argument, pro bono counsel expressed concern
that it was bound to meet necessary deadlines and had no choice
but to use such a service. Courts should be willing to accept
reasonable requests for brief extensions of time from pro bono
counsel in cases like the one at bar. Should any future problems
arise in connection with such considerations, the matter should
be brought to our attention for administrative resolution.
One point of concern remains. In her brief the Attorney
General informs us that there have been instances when people of
means have been assigned pro bono counsel in parental-rights-termination proceedings. Courts must carefully evaluate whether
one is indigent before appointing pro bono counsel, lest public
resources be diverted unnecessarily.
The order of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern,
Garibaldi, Stein and Coleman join in this opinion.
NO. A-95 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF
THE GUARDIANSHIP OF
C.A.B., JR., AND I.B.,
MINORS.
DECIDED April 24, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY