Capitol Report

Capitol Report

November 20, 2017

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. 

Murphy Administration, State House, Transition Team Shapes Up

As the state prepares to hand over the reins to Governor-Elect Phil Murphy, the Democrat has begun his rollout of transition chairs to head the committees integral to his administration.

In an early pick, Murphy has announced that his lieutenant governor, Sheila Oliver, will head the Department of Community Affairs. He named former chief of staff to Senator Richard Codey and veteran lobbyist, Peter Cammarano, as his chief of staff. Cammarano is a partner with CLB Partneres, a Trenton-based government relations firm. Serving as chief counsel will be Matt Platkin. Platkin served as policy director on the Murphy campaign. Prior to his involvement on the campaign, Platkin worked for Cory Booker’s Senate campaign and for various other state and federal campaigns across the country. A Stanford graduate, Platkin worked on economics policy at The Brookings Institute, where he advised members of Congress on policies to promote economic recovery and job growth.

In the area of law and justice, Murphy has chosen a team of veteran legal experts to head his policy team, with a special focus on immigration and social justice. His team includes:

Rev. Cornell William Brooks, former president and CEO, NAACP

Ronald Chen, co-dean and distinguished professor of law, Rutgers Law School

Paul Fishman, former U.S. attorney, District of New Jersey

Ricardo Solano Jr., former first assistant attorney general of New Jersey

Tahesha Way, former freeholder director, Passaic County Board of Chosen Freeholders

Murphy’s Immigration Subcommittee includes Johanna Calle, program coordinator for New Jersey Alliance for Immigrant Justice, and Sara Cullinane, director of Make the Road New Jersey. On his Law and Justice Social Justice Subcommittee are Ehsan F. Chowdhry, president of the New Jersey Muslim Lawyers Association, and Ryan Haygood, president and CEO of the New Jersey Institute for Social Justice.

Other notable transition team chairs and co-chairs include Hoboken Mayor Dawn Zimmer, who will serve on the Urban and Regional Growth Committee; Amy Mansue, president of the Southern Region at RWJBarnaas Health, who will serve on the Budget Committee; Jeanne Fox, former president of the Board of Public Utilities, who will serve on the Environment and Energy Committee; and Jennifer Velez, senior vice president of Community Behavioral Health at RWJBarnabas Health, and Cecelia Zalkind, president and CEO of Advocates for Children of New Jersey, who will serve on the Human and Children Services Committee.

NJSBA: Professional Liability Is a Question of Law Requiring Objective Expert Opinion

The New Jersey State Bar Association urged the Appellate Division in an amicus curiae brief to affirm a trial court decision that the determination of whether the particular duties and standards of care asserted by a plaintiff and his experts are a question of law and that an expert’s opinion based on subjective opinion was properly barred as net opinion. The brief in the matter of Bianchi v. Ladjen, Docket No. A-2210-15T4, was written by John W. Kaveney, of McElroy, Deutsch, Mulvaney & Carpenter; Diana C. Manning, of Bressler Amery Ross; and Evelyn R. Storch, of Harwood Lloyd.

By invitation of the Appellate Division, the NJSBA weighed in on the question in a case stemming from allegations by a plaintiff, the buyer, who did not obtain homeowner’s insurance to cover the premises during the escrow period, during which time the property suffered water damage as a result from pipes that had frozen since the time of the pre-closing walk-through. The buyer sued the former attorney, title company and sellers, alleging, among other things, negligence. In support of his claims of professional negligence against the attorney and title company, the buyer obtained expert reports from an attorney with experience in residential real estate transactions and a licensed title producer, both whom alleged the attorney and title company owed to the buyer various duties, and breached those duties and standards of care in their respective professions.

The trial court granted the defendants’ motion to bar the experts’ proposed testimony as inadmissible net opinions, also observing that the law does not recognize the particular obligations the experts asserted. The court also found that the sellers were not liable to the buyer under the terms of the contract or the applicable law. In addition to the question of whether the duties and standards of care pose a question of law, the Appellate Division asked the NJSBA to weigh in on whether the specific obligations asserted by the plaintiff and his experts should be recognized, and whether the trial court erred in barring these experts and in granting summary judgment.

The NJSBA argued that the question of whether a duty exists that would form the basis of a legal malpractice action is a question of law for the court, with ample case law supporting this proposition. Furthermore, the association argued that real estate attorneys do not owe a duty beyond their role in the transaction, unless otherwise agreed. “At its most basic, the role of a buyer’s attorney in a real estate transaction is primarily to ensure the effective exchange of a buyer’s funds for the legal ownership rights to real property,” said the NJSBA. “…However, the idea that buyers’ attorneys have a duty to provide advice and recommendations to their clients about whether and when to purchase homeowners insurance is simply unsupported by any legal authority.”

Finally, on the issue of expert opinions, the association argued that an expert opinion that cannot cite to any objective indicia to support a consensus is nothing more than a net opinion and cannot support a claim of malpractice. “In determining whether an attorney has acted consistently with the standard of care, the attorney’s conduct must be adjudged against objective criteria based on the consensus of the profession,” said the NJSBA, citing to Taylor v. DeLoso, 319 N.J. Super. 174, 180 (App. Div. 1999). Given the buyer’s expert relied upon his own personal opinion to support a standard of care, the trial court was correct in barring his opinion.

The case is not yet scheduled for oral argument.

Attorney Volunteers Sought For Military Legal Assistance Program

The New Jersey State Bar Association Military Legal Assistance Program provides free legal advice to veterans who encounter legal issues before their deployment or upon their return home. Members of the military who have served in active duty or in the reserve units can receive assistance with family law, debtor-creditor issues and employment law matters. Any attorney who annually volunteers 25 or more hours of pro bono service can earn a Madden exemption. To find out more, visit njsba.com or email mlap@njsba.com.

 


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