OTHERWISE: Arbitration clause in legal malpractice claim barred by New Jersey appellate court

The New Jersey legal community has been roiled by an unpublished – but binding – Appellate Division decision that barred enforcement of the mandatory arbitration provision of a prominent firm’s standard retainer agreement.

In Delaney v. Dickey and Sills Cummis & Gross, P.C., 2019 WL 3982756, a legal malpractice action, plaintiff Brian Delaney claims the retainer agreement used by defendants   violated several RPCs and therefore its provision to arbitrate all disputes arising from the representation should not be enforced. The Chancery Division judge rejected the argument but a three judge panel reversed. Sills has now appealed to the state’s Supreme Court, and Delaney’s lawyer agrees the Court should grant certification….

Source: OTHERWISE: Arbitration clause in legal malpractice claim barred by New Jersey appellate court

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility – Call For Papers Reminder

Submissions and nominations of articles are being accepted for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2019.  The prize will be awarded at the 2020 AALS Annual Meeting in Washington, DC.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu.  The deadline for submissions and nominations is September 1, 2019.

OTHERWISE: Lawyer’s Use of Internet Search Engine Keyword Advertising OK’d by New Jersey Supreme Court’s Advisory Committee on Professional Ethics

Source: OTHERWISE: Lawyer’s Use of Internet Search Engine Keyword Advertising OK’d by New Jersey Supreme Court’s Advisory Committee on Professional Ethics


The New Jersey Supreme Court’s Advisory Committee on Professional Ethics (ACPE) has issued a binding Opinion 735 Lawyer’s Use of Internet Search Engine Keyword Advertising

The Committee- whose published opinions bind the bar – subject to discretionary appeal –  responded to an inquiry: “asking whether a lawyer may, consistent with the rules governing attorney ethics, purchase a Google Adword℠ or keyword that is a competitor lawyer’s name, in order to display the lawyer’s own law firm website in the search results when a person searches for the competitor lawyer by name. Internet search engine advertising programs permit businesses to purchase certain keywords or phrases; when a person searching on the internet uses those words in the search, the websites of purchasers of the keywords will appear in the search results, ordinarily presented as paid or “sponsored” ads.”  The ACPE found that acceptable but abjured any method that would surreptitiously direct an inquirer from the competitor’s website to the lawyer’s own site.

Safe and sanitary – the limits of advocacy

Knowing that this story will soon disappear from Twitter and the headlines I have gathered key documents, etc. with fall classes in mind.  My suggested question for discussion is “Would you have argued – if your DOJ boss insisted – that soap was not required under the settlement agreement calling for minor immigrants to be detained in “safe and sanitary” facilities?” Click through for the full post. -gwc

Source: OTHERWISE: Safe and sanitary – the limits of advocacy

The United States appealed the order of District Court Judge Dolly M. Geer enforcing a settlement agreement in the Florio v. Meese/[Barr] class action regarding aliens conditions of confinement in which, as the government now notoriously argued in its brief

The court also rejected Defendants’ argument that “soap, towels, showers, dry clothing, or toothbrushes” are not required under the Agreement because the Agreement makes no mention of those items.

The news has been full of debate about the unwillingness of DOJ  attorney Sharon Fabian to concede at oral argument before the Court of Appeals in San Francisco that soap, toothbrushes, and beds are necessities implied by the term “facilities that are safe and sanitary” in the 1994 settlement agreement between the U.S. and the Florio class of detained minor immigrants.

Civil Gideon: NJ Court Affords Counsel in Child Abuse and neglect Cases

Civil Gideon – Right to Counsel in Child Abuse Allegation by Division of Children and Families  Almost fifty years ago the New Jersey Su…

Source: OTHERWISE: Civil Gideon: NJ Court Affords Counsel in Child Abuse and neglect Cases

Almost fifty years ago the New Jersey Supreme Court declared in Rodriguez v. Rosenblatt that an indigent defendant facing any “consequence of magnitude” is entitled to appointed counsel.  From that petty criminal matter the right has been slowly extended in civil matters such as termination of parental rights, jailing and “automatic” suspension of driving privileges for failure to pay child support, suspension of driving privileges, and involuntary civil commitment.  In Division of Children and Families v. L.O. the Appellate Division has extended that right to State Division of Children and Families administrative and judicial actions to substantiate child abuse, and place the defendant on the Child Abuse Registry.

The court considered whether indigent parents and guardians – once notified that an investigation has substantiated them for child abuse or neglect – are entitled to the appointment of counsel when exercising their right to an administrative hearing to challenge that determination.
Because the potential consequences of such administrative proceedings – including permanent listing in the Child Abuse Registry – are of significant magnitude, counsel must be made available for indigent parents and guardians both at the administrative level and in any appeal of right to this court, just as that right exists in Title Nine actions commenced in Superior Court.

The court also determined that until such time as the Legislature addresses this constitutional right counsel may be appointed to serve – without compensation – in such matters. Six months ago a Superior Court judges ordered the state to provide counsel to delinquent child support obligors in drivers license suspension cases.  There too funding has not been appropriated.   In this era of No new taxes pledges the Legislature has failed to respond in other instances where the right to counsel has been extended.  The recently elected Democratic Governor and the Democratic majority legislature have often found themselves at odds.  The statewide Office of the Public Defender stands ready – if funded – to provide competent representation.  But I have my doubts about whether the Governor and Legislature will address this problem. – gwc

Trump to Justices: Put yourselves in my shoes!


Source: OTHERWISE: Trump to Justices: Put yourselves in my shoes!

Pursuing their monarchical presidency argument Donald Trump’s lawyers – in their D.C. Circuit brief on appeal in the Mazars accounting subpoena case – make a sort of Golden Rule argument.  Looking ahead to the United States Supreme Court which will soon be confronted with deciding whether  Trump’s accountants must heed a House Oversight Committee subpoena for his financial records.  Put yourselves in my shoes, say Trump’s lawyers to the Justices who have exempted themselves from the Code of Conduct of United States Judges:

[A]lthough “Congress has directed Justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income” and the Justices comply with them, the Court has never decided “whether Congress may impose those requirements on the Supreme Court.” **. In short, “the limits of Congress’s power” in this area have “never been tested.” 

Yet replace “President” with “Justices” and the ruling below would, without question, authorize a congressional subpoena for the Justices’ accounting records— even for many years before they joined the Court. There would “be little doubt” that “Congress’s interest in the accuracy of the [Justices’] financial disclosures falls within the legislative sphere.” ***

Whether they are “abiding by the Foreign Emoluments Clause is likewise a subject on which legislation … could be had.” ***. “So, too, is an investigation to determine whether [the Justices have] any conflicts of interest” (even though those laws do not currently apply to them), given that “exposing conflicts” and “shed[ding] light” are “entirely consistent with potential legislation in an area where Congress already has acted.” ***

Finally, the subpoena would be “justified based on Congress’s ‘informing function’” since, according to the district court, Congress has “sweeping authority to investigate illegal conduct of a [Justice] before and after taking office.” ***