It’s estimated that almost 90% of the judges in the United States are elected. In New Jersey, they are not, with the exception of the County Surrogate, a quasi-judicial position with jurisdiction over Probate cases. Elected judges tend to be on social media more than non-elected judges, probably due to campaign demands.

The Passaic County Surrogate has become embroiled in ethics charges over her appointment of a Facebook friend to administer an estate over the objection of the decedent’s family. Contrary to the wishes of all the heirs, the Surrogate chose her social media friend, a former co-worker of the decedent, over the only relative who had applied. At the time of the appointment hearing she only disclosed she knew the appointee. She did not disclose that she had known him and his family for three decades, they grew up in the same neighborhood, the appointee had helped her with her last campaign, he had attended political fundraisers for her and that they were Facebook friends. A Superior Court judge overturned the appointment and the ethics investigation commenced.

When initially asked about the relationship by the Advisory Committee on Judicial Conduct, the disciplinary arm of the Supreme Court, the Surrogate attempted to minimize her relationship with the appointee, stating “he was not somebody I’d call to talk to on the phone”. That statement was contradicted by an examination of her cell phone records which showed in the six months preceding the appointment hearing, she made at least six telephone calls to him from her personal cell phone and exchanged approximately 63 text messages with him. A 23 minute cell phone conversation and 22 texts occurred during the three month period between his application and appointment.

This lapse in judgment can’t totally be blamed on social media, though. The Facebook friend status is exacerbated by the lack of candor and the misleading attempts to minimize the relationship. Judges have been disciplined and criticized for “friending” lawyers, jurors and litigants. Lawyers have committed  similar lapses in judgement. Networking and campaigning for office may require a social media presence;  transparency is the antidote. In the Matter of Surrogate Bernice Toledo, ACJC No. 2019-189, filed December 23, 2019.

Warning: the underlying facts and procedural history are cringeworthy. This is the saga of a medical malpractice case which is dismissed, leading to a legal malpractice case, which is wrongfully dismissed, leading to an Appellate Division case which exposes all the flawed decision-making.

Plaintiff died, allegedly of bedsore complications in a Jersey City nursing home in 2012. His daughter, as the representative of her father’s estate, retained defendant attorney to handle the medical malpractice case against the nursing home.

Defendant had never handled a medical malpractice case, but in preparation for this matter he read a book and researched the Affidavit of Merit (AOM) statute. Believing no AOM was necessary, defendant filed the complaint in 2013. He “initiated the action without conducting an investigation, a medical records review, or consulting with any experts before or after the complaint was filed.” (Opinion at 4). In April of 2014 the complaint was dismissed with prejudice for failing to file an AOM. Defendant then advised plaintiff she may have a cause of action against him for legal malpractice. Continue Reading A Cascade of Errors

On December 10, 2019, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued Opinion Number 55 to provide additional guidance on when an out-of-state lawyer can practice immigration law in New Jersey.

The Opinion stems in part from an earlier opinion (No. 44, October 2008) issued by the Committee on the Unauthorized Practice of Law concluding that out-of-state lawyers may practice immigration law in New Jersey if they “associate with New Jersey attorneys in a New Jersey law firm.”  The Advisory Committee on Professional Ethics was recently asked to clarify the meaning of “associating with” and whether an “of-counsel” relationship will satisfy the requirement.

The Committee declined to rely on labels or titles such as “of counsel” in answering the question, and, instead, provided a functional definition of “associating with New Jersey attorneys in a New Jersey law firm.”  Regardless of the attorney’s title, (s)he must “be present in the firm and closely involved with the law firm’s practice in order to serve in the required oversight role and to provide any collateral State law issue.”  Notably, this requirement is more stringent than the definition for “of counsel” the Committee on Attorney Advertising had provided in an unrelated opinion allowing a “relatively transitory relationship[] to the firm” or the performance of frequent per diem work.”

The Advisory Committee on Professional Ethics’ Opinion Number 55 can be found here, and the Committee on the Unauthorized Practice of Law’s Opinion Number 44 here (the latter of which also addresses related advertising issues).

Have you brought in a large corporate client such as a bank or a public company?  If so, have they sent you outside counsel guidelines?  Many large companies have their own guidelines that govern the attorney-client relationship as well as administrative and billing issues.  These guidelines must be reviewed very carefully; they may require electronic billing; they may indicate that you may not bill for certain tasks.  Also, the guidelines may set forth that for conflict purposes you not only represent a specific corporation but all of its subsidiaries and affiliates; some even state that you may not represent a business competitor.  As this is the contract that governs the attorney-client relationship you should not just sign it, but review it very carefully.

You just found out your adversary is the judge’s former law clerk. They seem pretty cordial. What do you do?

Most of the reported cases  involving judges and former clerks deal with the situation where the clerk was employed while a matter was pending and later joins a firm involved in the same matter or representing one of the parties. That law is well-settled.

But suppose the issue is not whether the case was in front of the judge in some fashion when your adversary was clerking; what if the issue is more thorny? Do they still have a close enough relationship to put your client at a perceived or actual disadvantage?

After reading about In Re: Gizella Pozsgai, case number 19-3872 in the U.S. Court of Appeals for the Third Circuit, you have to consider raising the delicate issue before the judge and the adversary and hope for honest and complete answers. (Although that doesn’t always work so well. See below).

There is no hard and fast rule addressing the question of whether a  judge should allow a former clerk to appear before the judge in any matter. Some judges wait 6 months, some wait a year, some wait two years before allowing a clerk to appear. Some districts or vicinages choose a time period by consensus.

In Patzner v Burkett, 779 F. 2d 1363 (8th Cir. C.A. 1985), the court noted recusal is left to the judge’s discretion and declined to act when the adversary made no claim of bias towards the former clerk, although the clerk had worked for the judge only nine months prior to the inception of the case.

Ideally, the relationship between a judge and a law clerk is a close, confidential and mentoring one. Nevertheless, judges (and clerks) want the clerks to be marketable after their term:

The court observes in passing that some judges (but not the undersigned) employ law clerks with the specific expectation that the clerks will remain in that city or area to practice law. If a court were to accept the contention that recusal was necessary whenever any counsel had been a prior law clerk to a judge, this would be an unfair penalty placed upon former law clerks of Federal Judges. In addition, United States judges themselves would suffer an obvious limitation on their recruiting of talented law clerks in the future. lFootnote omitted]. Smith v. Pepsico, Inc., 434 F. Supp. 524, 526 (S.D. Fla. 1977)

Counsel need to rely upon the judge and the adversary to be  open and honest about their relationship: that’s precisely where things went wrong in Pozsgai. That case involves a 32-year-old claim  involving a Clean Water Act violation and subsequent enforcement efforts. The trial judge had twice refused to recuse herself from the case. The AUSA now handling the case was her law clerk 14 years ago.

The scrutiny began because the judge gave an interview circulated on the internet describing her close personal and social relationships with former law clerks, including the AUSA. She had made similar comments in public remarks and in legal publications. She had pictures of events in her chambers of her and former clerks, including the AUSA, seen by counsel during a conference. In denying the first recusal motion along with deciding other motions, she simply inserted  the denial in a footnote without analysis.

In the second denial, she stated she presently had “no special relationship”  with the clerk. The adversary took issue with the obvious contradictions between her public statements and the Order.

The case is heading to the Third Circuit and bears watching. In the meantime, if you clerked and have a case assigned to your judge, promptly notify your adversary of the details of the clerkship and your present relationship with the judge.

The American Bar Association Standing Committee on Ethics and Professional Responsibility recently issued guidance concerning the ethical duties held by firms and lawyers when a lawyer decides to leave the firm.

First and foremost, under Model Rule 1.4, lawyers have an ethical duty to inform their clients that they intend to change firms.  Where the attorney had “significant contact” with the client, the lawyer and the firm should agree on a letter to be sent to the client which provides such notice and gives the client the option to go with the lawyer, stay with the firm or take their matter to a new lawyer.  In the event that the lawyer and the firm cannot agree on the form of a letter, the firm cannot prevent the lawyer from sending his or her own letter to a client soliciting the client to move with them.  As the ABA guidance states, “Clients are not property . . . Subject to conflicts of interest considerations, clients decide who will represent them going forward when a lawyer changes firm affiliation.”

Firms may not impose unreasonable restrictions on departing lawyers, such as rigid notification requirements that have the effect of either restricting the client’s choice of counsel or serving as a financial disincentive to the lawyer to leave.  Such restrictions may violate Model Rule 5.6(a), which effectively prohibits noncompete clauses. Restrictions that may be considered reasonable are those that serve to ensure an orderly transition by allowing for updating, organizing and transition of files or staffing changes.

In addition, firms may not deny the departing lawyer access to firm resources during the transition period.  For example, the firm cannot force the lawyer to work at home, or restrict the lawyer’s access to email, support staff or first records.  Such restrictions would prevent the lawyer from representing clients diligently and competently during the transition period.

Identifying who your client is at the outset is one of the most important aspects of the attorney-client relationship.  It governs who you can seek payment from and who can sue you for malpractice.  This is particularly important when your client is a limited liability company, general or limited partnership, or a closely held corporation.  Do you only represent the entity or do you also represent the individual cases of that entity?  Either may be appropriate and the engagement letter should make it explicitly clear what the answer is.

In a recent Appellate Division decision in Hedenberg v. Ciardi, 2019 WL 6248016, the defendant law firm represented an LLC.  Two members of that LLC, however, sued the law firm for malpractice for not advising them, individually, of the ramifications of having the entity declare bankruptcy.

In affirming the Court’s granting of defendants’ summary judgment motion dismissing the case, the Appellate Division first correctly found that there was no written engagement letter with the individual plaintiffs, only with the LLC.  With that as a starting point (and here ending too), the Court next addressed the legal question of whether there was an implied attorney-client relationship and found there was none.  The defendants were able to succeed on their summary judgment motion dismissing the case because it adequately drafted an engagement letter identifying its client as the LLC.

State v. Martinez, just approved for publication,  offers some interesting lessons for criminal defense attorneys who seek to interview cooperating witnesses. It offers even more interesting lessons for the prosecutors who seek to surreptitiously record those interviews.

Defense counsel are entitled to ask for an interview with any state’s witness. This witness advised prosecutors that the defense attorney would probably offer him money, presumably to change his story. Based on that allegation alone, prosecutors surreptitiously recorded the interview by wiring the witness.

The defense attorney did not offer the witness money; nor did he commit any other ethical breach.

The State  revealed the recording just 3 days before trial. The trial judge denied a motion to dismiss and / or to bar the cooperating witness from testifying, but opined that the secret taping “should send a chill down the spine of any criminal defense attorney or prosecutor [who] has ever interviewed a witness”.

It remains to be seen whether the defense will gain any legal traction for this client from opposing and exposing the state’s conduct. The Appellate Division just affirmed the trial judge’s decision to affirm the denial of the motion to dismiss,  but remanded for a plenary hearing on the effects of the taping, specifically whether the practice led to a revelation of any defense strategy. The opinion gives a thorough historical analysis of the actions taken by prosecutors when investigating defense counsel. Good reading.

There are ethics issues playing out in the courtroom and legal media about the alleged  conduct of a Pennsylvania trial court judge and defense counsel in a case in which a jury awarded $8 billion (yes, billion) in punitive damages against Johnson & Johnson in a Risperdal trial. J&J attorneys filed a recusal motion, among other post-judgment motions, which has already been denied. The alleged conduct will undoubtedly become part of J&J’s appellate strategy.

Following a three week trial the judge admittedly posed with jurors for photos at the jurors’ request in the courtroom. Both plaintiff and defense counsel took photos. J&J now claims the judge “high-fived” jurors, implicitly approving of their verdict. The judge denies having done so. There are photos taken by Plaintiff’s council which have not been released to the defense. The judge has threatened to file ethics complaints against J&J counsel for fabricating the “high-five” part of the story.

Jurors become attached to judges during long trials. Judges typically thank them for their service, perhaps more fervently in a long case. The picture request is a bit more unusual.

The “high-five”, if it happened, feels uncomfortable. It implies a blessing on the verdict, complicating any post-judgement motion practice and adding a layer of taint to the trial rulings.

Takeaway? If you feel a judge is exhibiting bias in rulings (distinguished from finding your arguments are just not worthy), make a record. Note unfriendly facial expressions, inappropriate tone of voice, even gestures. Note them in a respectful tone, but do not let them pass.