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January 6, 2020

NJSBA amicus curiae roundup

Delaney v. Dickey

The New Jersey State Bar Association (NJSBA) filed an amicus curiae brief urging the Supreme Court to reverse an appellate court decision expanding the requirements attendant to meeting the requirements of Rule of Professional Conduct (RPC) 1.4(c) in entering into a retainer agreement with a potential client. That RPC requires a lawyer to explain the agreement as reasonably necessary to permit the client to make informed decisions about the representation. The Appellate Division concluded the rule is breached when a retainer agreement references a document containing material terms of mandatory arbitration of a legal practice claim is not attached to the agreement, or when a client is not affirmatively provided an explanation of those terms before signing the agreement. 

“In deciding the matter at bar, the Appellate Division engaged in improper rulemaking, a function that is exclusively reserved for this court following committee consideration and public commentary,” argued the NJSBA in its amicus brief. On the brief are NJSBA Trustee Andrea J. Sullivan and Kersten Kortbawi.

Brian Delaney was a businessman who frequently retained lawyers to assist him in his multi-million-dollar business deals. He retained Sills Cummis to represent him in two lawsuits. He was asked to sign a three-page retainer agreement that included an arbitration clause just above the signature line. The clause referenced a 32-page document—the rules of the JAMS arbitration procedures—but the agreement did not attach the document, nor was it reviewed by the plaintiff in advance of him signing the agreement. When Delaney fired Sills Cummis, leaving a $400,000 balance in legal fees, the law firm filed to recover its fees through JAMS. Delaney engaged in arbitration, but on the eve of settlement he filed a legal malpractice claim in superior court, claiming the law firm violated multiple RPCs. The Chancery Division ruled the fee agreement’s arbitration clause was enforceable, that it encompassed Sills’ fee claim and the plaintiff’s malpractice claim, and that both claims were subject to JAMS arbitration. The Appellate Division vacated the trial court’s order and remanded the matter back to the lower court.

The NJSBA argued that the Appellate Division’s published decision creates new ethical obligations for attorney-client communications by “governing the fundamental mechanics of how an attorney may enter into a retainer agreement with their prospective client.”

Nieves v. Office of the Public Defender

Today, the Supreme Court hears oral arguments in this matter, which considers whether an attorney acting on behalf of the government to represent a private client in a litigated matter, where representation is provided as a constitutional right, is entitled to protections under the Tort Claims Act (TCA) when sued for legal malpractice. George Conk, arguing on behalf of the NJSBA, will urge the Court to affirm the Appellate Division’s decision to apply the TCA to legal malpractice claims.

Antonio Chaparro Nieves was represented by a public defender when he was convicted of several crimes for which he served 12 years and four months. He was ultimately released, the charges were dismissed on his petition for post-conviction relief, and he has recovered under the Mistaken Imprisonment Act. The trial court ruled that the procedural requirements of the Tort Claims Act do not apply to legal malpractice claims. The Appellate Division reversed, holding that the Office of the Public Defender is a public entity and that public defenders are public employees who fall within TCA’s immunities and defenses.

“[T]he qualified immunity and indemnification afforded to lawyers under the Tort Claims Act is an important guarantee of the availability and independence of counsel who provide constitutionally mandated representation to those who cannot afford counsel, whether a lawyer is acting as a direct employee of the state, as a pool attorney hired through a state agency, or on a pro bono basis assigned by the Court,” said the NJSBA in its brief. While the NJSBA encouraged the Supreme Court to expand that immunity not just to public defenders, but also to pro bono attorneys assigned from the Madden list, the Supreme Court declined to hear the NJSBA’s arguments relative to Madden list representation.

State v. Olenowski

The Supreme Court issued an order remanding this matter to a special master for a plenary hearing to consider and decide whether drug recognition expert evidence has achieved general acceptance within the relevant scientific community and, therefore, satisfies the reliability standards. The special master is also ordered to determine whether each individual component of the 12-step protocol is reliable; whether all or part of the 12-step protocol is scientifically reliable and can form the basis of expert testimony; and whether components of the process present limitations, practical or otherwise. The NJSBA filed an amicus curiae brief urging the court to rule that drug influence evaluations and drug recognition evaluations are inadmissible for any purpose unless its proponent, the state, lays an appropriate foundation that meets the requirement of Frye v. US and State v. Harvey. The Court has ordered that the Honorable Joseph F. Lisa, retired presiding judge of the Appellate Division serving on recall, be assigned as special master.

State v. Andrews

The Supreme Court has granted the NJSBA’s amicus curiae motion to accept briefing and will permit the NJSBA’s participation in oral argument on this matter. The matter considers the foregone conclusion exception, and whether it should be applied to compel a defendant to provide a password for the decryption of an electronic device for the purpose of obtaining information that could be used against the defendant in a criminal prosecution.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.