October 15, 2018
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.
Workers’ comp bill on Senate budget agenda this week
The Senate Budget and Appropriations Committee is set to vote on a bill that would provide cost-of-living adjustments (COLA) in weekly workers’ compensation benefits for certain workers this week. The first iteration of S-1967 (Sweeney)/A-3635 (Jasey) was introduced in 2008 and was vetoed by then-Governor Chris Christie in 2014. The New Jersey State Bar Association urged amendments to the bill to preserve the reverse offset provision that would permit the reduction of the benefit by one who is also receiving Social Security disability benefits.
The bill would apply only to workers who were totally and permanently disabled as a result of a workplace injury after Dec. 31, 1979, and surviving dependents of any worker who died from a workplace injury after that date. The adjustment is intended to mirror, to the extent possible, the COLA already in place for benefits arising from an injury occurring prior to 1980.
New Jersey is one of 15 states that permit a reverse offset, but the benefit is in jeopardy with the introduction of the proposed 2019 federal budget, which would eliminate the offsets. The bill’s sponsors will test the new administration’s response to the issue despite federal legislation that may jeopardize the bill.
The association continues to monitor the bill’s progress. It remains pending in the Assembly Labor Committee.
Supreme Court weighs application of entire controversy doctrine in legal malpractice cases
The Supreme Court heard oral argument last week on whether the entire controversy doctrine applies to dismiss a legal malpractice claim filed three years after a judgment was received in a fee collection matter. In the matter of Dimitrakopoulous v. Borrus, Goldin, Docket No. 080357, the NJSBA argued as amicus curiae that the entire controversy doctrine requires dismissal of the plaintiffs’ claims that their attorneys committed malpractice because it was not raised in the collection action. The brief was written by Diana C. Manning and Peter J. Gallagher. Manning argued the matter before the Supreme Court on behalf of the association.
The association argued that the mere presence of distinct legal theories does not render ineffective the entire controversy doctrine. “One core set of facts can give rise to discrete causes of action and different kinds of relief,” argued the NJSBA in its brief. “The central consideration is whether distinct claims are aspects of a single controversy because they arise from interrelated facts.”
At argument, Manning noted there should not be different rules for attorneys, and the entire controversy doctrine should operate to prevent a plaintiff from collaterally attacking a valid judgment obtained in a fee action years after that action has concluded.
Instead, the association urged the Court to conclude that the plaintiffs were required to bring their legal malpractice claims as a compulsory counterclaim or an affirmative defense in the fee action because a fee action is intrinsically intertwined with a related action for legal malpractice and relies on the same set of facts. “[A]ny claim for legal malpractice needed to be addressed during the fee claim, as a successful claim for malpractice may serve as a defense to a fee claim and can limit recovery of legal fees by the attorney,” the association argued.