A Washington, D.C. firm seeking fees resulting from a successful Freedom of Information Act application learned that transparency is a must, especially when seeking fees from the public fisc.

King and Spalding, LLP sought fees but attempted to file the application under seal, claiming that to reveal its rates, staffing strategies and detailed billing would somehow harm the firm competitively. That unsubstantiated and conclusory claim was rejected in strong terms: “Indeed, there is something untoward about Plaintiff asking to conceal their hourly rates and the work done from public view, while demanding hundreds of thousands of dollars from the public treasury as compensation.” King & Spalding, LLP v. United States Department of Health and Human Services, et al., Civ. No. 1:16-cv-01616, slip opinion at 4, decided April 7, 2020.

The court also noted the firm has made applications in other cases, so their fees and structures have already been subject to public scrutiny.

In any fee application, a court must assess not only the reasonableness of the rates, but the reasonableness of the hours expended. Takeaway? Lawyers need to be prepared to be open and transparent to a court’s inspection when seeking to shift fees. The bills should be detailed, the rates should be competitive, and the hours necessary as balanced against the result. When public money is sought, a higher degree of interest is presumed.

The N.J. State Appellate Division just reinforced guidelines for lawyers seeking  fees for work done in contested probate cases. Whether you represent the trustee, a beneficiary or challengers, if your hours are necessary and your rates are reasonable, you will be paid from the estate.

Decedent was young and had two minor children. He left one a $5,000,000 trust and disinherited the other. He also set up a residuary testamentary trust for that child and one for the benefit of his surviving family (parents, sister and the sister’s children). The mother of the disinherited child sued the estate for child support and settled the case by agreeing to a monthly support figure of $14,000, supported by the creation of a $1,000,000 trust. The settlement was opposed by Decedent’s  other child’s mother and by the beneficiaries of the residuary trust.

Fees were submitted by the trustee’s attorney, the disinherited child’s mother’s attorney, and the attorney for the favored child’s trusts and the surviving family’s trust.

The probate judge held that all parties, despite their “divergent” views, acted in the interest of preserving the favored child’s residuary estate by settling claims and avoiding protracted litigation, and that therefore all counsel were entitled to have reasonable fees paid from the estate. (Because the trial judge issued a conclusory finding that all attorneys billed a reasonable number of hours at a reasonable rate, the Appellate Division remanded the case for more specific findings on the entries).

Takeaway? Adversarial litigation intended to or resulting in protection of an estate will support a fee application from the estate.

In the Matter of the Estate of Keith R. O’Malley, Docket Nos. A-4084-17T1 and A-1276-18T1 (Decided March 10, 2020).

We hope this post finds you and your families well and safe. While ethics rules may not seem like the most pressing kind of concern right now, if you are providing legal advice now is the very time to ensure strict compliance to ensure deadlines are met and otherwise reduce the risk that a legal slip-up during the outbreak will turn into a malpractice suit.

Be Vigilant About Your Calendar

As anyone who works in the professional liability arena will tell you, routine scheduling failures and missed filing deadlines trigger a significant percentage of legal malpractice claims.

And with the coronavirus forcing people around the country to break their daily routines and cancel plans, the risk that distracted lawyers and staff will overlook a court alert email or forget to put an entry into calendaring software is high.

With all the other things on their minds, lawyers should make time to double-check that routine calendaring tasks and email checks are getting done on time and with the same level of attention. This is especially true in jurisdictions like New York that have essentially closed the courts for non-emergent matters and tolled dates for about one month.

Do Not Provide Quick Legal Advice

This best practice standard is even more important to follow with clients facing emergent issues with their lives and businesses. You must resist the temptation, however, to provide quick, off-the-cuff, legal advices, let alone best guesses. If you need to look into a legal issue or read a document more carefully (which should not be done on your phone), tell the client you need to get back to them.

For additional information pertaining to the coronavirus outbreak, please visit CSG’s COVID-19 Resource Center.

Basic rules: when you represent an organization, you must make it clear to employees who wish to retain you that there is a potential conflict of interest. Further, you cannot breach the attorney-client confidentiality by testifying before a grand jury about conversation had with your clients.

How could the General Counsel of Penn State, a former Justice of the Pennsylvania Supreme Court, have crossed these lines?

During the investigation into the repeated sexual abuse and cover up of those allegations againstJerry Sandusky, a former assistant football coach at Penn State, the GC took on the representation of Penn State’s President, the Athletic Director and the former Senior Vice-President for Finance and Business as the investigation by the Office of the Attorney General turned to a “what did you know and when did you know it” analysis. She accompanied the witnesses to the Grand Jury, prepped them, and when called before the Grand Jury herself, recounted their conversations.

The Court held that the GC violated Pa. RPC 1.1 Competence, 1.6(a) Confidentiality, 1.7 Conflict of Interest: Current Clients and 8.4 (d) Conduct Prejudicial to the Administration of Justice. (NJ RPC cites are equivalent).

Her failure to warn the clients about the potential conflict of interest led to the suppression of statements made before the Grand Jury. Echoing the Disciplinary Board, the Court added that her conduct resulted in  charges being quashed against the clients, “ . . . thereby prejudicing the administration of justice.” (An appellate court quashed all perjury, obstruction of justice and related conspiracy charges against the defendants. The President proceeded  to trial and was convicted on a remaining count; the other two officials each entered pleas of guilty to one count and testified against him).

The Court considered the high-profile and pressure-filled nature of the case, the GC’s admitted complete unfamiliarity with criminal law, and her previous unblemished record. It weighed those factors against her repeated violations  as noted above and ordered a public reprimand, finally bringing a close to this chapter.

Office of Disciplinary Counsel v. Baldwin, No. 2587 Disc. Docket No. 3 (Decided February 19,2020). 

An appellate court ruled last week that a legal malpractice case which has its roots in a 2003 family law case could not be dismissed based on the statute of limitations.

Plaintiff alleged her matrimonial attorney gave her bad advice – that her term alimony of nine years could be extended at the end of the term. When she made that request, it was denied and then she lost her appeal of the trial court’s denial.

She then filed a legal malpractice case against her original attorney and his firm. The trial court dismissed her case, ruling in favor of defendants’ statute of limitations argument. The appellate panel reversed the trial court and revived her claim. The panel analogized to medical malpractice rulings, stating the statute only began to run when the plaintiff discovered, or should have reasonably discovered, the malpractice. It noted the difficulties in defending a case this old, but ruled for Plaintiff. It should be noted Plaintiff had custody of two adult children with disabilities, one of whom needed 24-hour care, limiting her ability to work.

Poor advice can last what seems like forever.

Jones v. Viola et al., A-1810-18T4 ( Decided Feb. 27, 2020).

The New Jersey Supreme Court will hear a case with interesting implications for lawyers in private firms who are conscripted to represent indigent litigants. The Office of the Public Defender, through the staff attorneys and assigned (“pool”) attorneys, provide indigent criminal defendants with representation. Legislation has expanded their arena to include parents who are targets in termination of parental rights cases. A wrongfully convicted defendant is suing his former Public Defender in Case: A-69-18, Antonio Chaparro Nieves v. Office of the Public Defender, (Do. No. 082262), and the defendant is asserting that he is entitled to the protections of the Tort Claims Act (N.J.S.A. 59:1-1 to 12-3), including prior notice of the claim.

More interesting to private firms is the issue posed by the New Jersey State Bar Association’s amicus brief: why shouldn’t these protections be extended to cover lawyers appointed pursuant to the “Madden list”? The Courts have identified gaps where indigents who face consequences of magnitude do not have access to free counsel. The Court decided in 1992 (pending legislative action to fund representation in these areas which will probably never happen) to have lawyers appointed to represent categories of indigents who are constitutionally entitled to representation. [Madden v. Delran, 126 N.J. 591 (1992)].  Lawyers indicate on an annual registration form whether they fall within tight exemptions; if not, they are subject to appointment.

When called upon, some lawyers seize the opportunity for a court appearance. Many  understand that the privilege of practicing law comes with responsibility. Some choose a court-approved legal services organization and annually volunteer 25 hours, which entitles them to an exemption. R. 1:21-12.  Not all, however,  serve willingly. Notices issued from the County Assignment Judges for appointment under Madden and pleas to be excused are routinely received. Most unwilling lawyers claim they are too busy or complain that the assigned case is not in a familiar area for them. Common case types include parole violations, child support enforcements , domestic violence contempts, and driver’s license revocations.

Lawyers are firmly reminded that under Madden, they can always hire an attorney to handle the case for them (although they remain ultimately responsible); otherwise they are expected to spend the time to become familiar with the case type. As the Supreme Court stated regarding lawyers having to prep for novel-to-them experiences; “all were required not only to learn how to defend those cases but to find out where the courthouse is.” Madden v. Delran, supra at 607.

So, does the privilege of practicing law, combined with legislative inaction,  put the private bar in an untenable position? Will the burden be partially alleviated by affording them Tort Claims Act protection? We shall see.

One of the areas I like to address for my fellow New Jersey/New York attorneys is the differences between how things work in each state, including the rules governing the conduct of attorneys.  With New York and New Jersey now allowing reciprocity (also known as admission on motion), there are some great opportunities for attorneys who want to expand their physical presence to the other side of the Hudson.

But we need to be on our toes when expanding to a different state.  The practice of law in New York and New Jersey is different in numerous respects.  The variation in court rules/procedures and practices may be the subject of many articles and posts, but my focus today is making sure that you do not get off on the wrong foot by using a firm name that is permitted in New York, but not in New Jersey, or vice-versa.  This post may also be useful if you are considering expanding into any other state.

On January 17, 2020, the New York State Bar Association’s Committee on Professional Ethics issued New York Ethics Opinion 1179, entitled “Conducting Law Practice Under a Trade Name.”  The Committee addressed whether an out-of-state (non-NY) firm permitted to practice law using a trade name in its home state may practice law in New York.  The inquiring party was from California, which, unlike New York, has long allowed law firms to use trade names.

What is a “trade name” as that term is used in this context?  A quick internet search, for example, brought up a law firm named Radix Law.  Radix is not the last name of any attorney at that firm.  Radix means “root.”  The firm’s founder chose that name to underscore the law firm’s “roots” in its home state as compared with those of other outside, national firms seeking to expand their practices into that state to take advantage of its growing economy.  Radix is a clever (even cool, or “lawyer cool,” as it were) name and would be allowed in the states that allow law firms to operate under trade names (such as where Radix Law is located).

New York, however, does not allow trade names.  NY RPC 7.5(b) provides that “A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm containing names other than those of one or more of the lawyers in the firm. . . .”  (emphasis added).  In response to an inquiry on this subject matter, the Committee made clear that NY RPC 7.5(b) applies “even though the use of a trade name is permitted in another state in which the firm has offices.” (Op. ¶ 6) (emphasis added).

New York’s RPC 7.5(b) is different from New Jersey’s RPC 7.5 in this respect.  New Jersey allows law firms to operate under trade names, but the name must accurately describe the nature of the firm’s legal practice and shall be accompanied by the full or last names of one or more of the lawyers practicing in the firm or the names of lawyers who are no longer associated in the firm through death or retirement.”  NJ RPC 7.5(e).  The official comment to NJ RPC 7.5 provides “Millburn Tax Law Associates, John Smith, Esq.” as an example of an allowed trade name – provided the firm’s primary location is in Millburn and its primary practice area is tax law.  New Jersey also allows a law firm with offices in more than one jurisdiction to use the same name in each jurisdiction – meaning, the Radix Law firm could open a New Jersey office under that name inasmuch as it is permitted to do so in its home state.  NJ RPC 7.5(b).  New York explicitly disallows such an exception.

So if you are seeking to open an office in another state, do your due diligence.  The materials you review with respect to the state where the new office will be should include:

  • The RPCs
  • The Court Rules and Statutes – For example, New Jersey allows law firms to operate as a Professional Corporation, but the Court Rules and Statutes each have different restrictions, all of which must be followed. (See New Jersey Attorney Ethics: The Law of New Jersey Lawyering by Kevin H. Michels for a detailed discussion on Professional Corporations in New Jersey, including the requirements under the Court Rules and Statutes.
  • Opinions issued by the applicable Committees on Professional Ethics, Attorney Advertising or comparable committees in the jurisdiction into which you are looking to expand.

It is worth the time to vet this issue carefully.  Expanding into a new state – while exciting – will have a host of challenges and adjustments.  You might as well start by getting your firm’s name right.

States have struggled with advising lawyers admitted to their bars as to whether and to what extent they can advise their clients on cannabis-related issues knowing that federal law still forbids the possession, distribution, sale, or use of marijuana.  The concern is that under the Rule of Professional Conduct 1.2(d) “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent except that the lawyer may discuss the legal consequences of any proposed course of contact with a client.”  In July 2014, New York adopted the Compassionate Care Act (“CCA”), which permitted cultivation, distribution, prescription and use of marijuana for medical purposes.  Months later, in September, the New York State Bar Association Committee on Professional Ethics, issued Opinion 1024 concluding that because the federal government was not enforcing the law, a lawyer may advise clients in complying with state medical marijuana law (although the opinion noted that “[i]f federal enforcement were to change materially, this opinion might need to be reconsidered.”

This past November, the Bar did just that and reaffirmed its earlier conclusion that “the Rules permit lawyers to give legal assistance regarding the CCA that goes beyond a mere discussion of the legality of the client’s proposed conduct.”

The Supreme Court of New Jersey reversed the “ethical pronouncements” from the 2018 decision in Cige v. Balducci, pursuant to which an appellate panel found that a retainer agreement entitling the attorney to the greater of three fee calculation methods was invalid. Although the Court upheld the finding that the retainer agreement was unenforceable, it ruled that ethical obligations imposed by the appellate court in fee-shifting cases were either too broad, unsound or “worthy of the deliberate process” by which ethical rules are generally promulgated. The Court directed the formation of an ad-hoc committee to address the ethical issues arising from the case.

Ms. Balducci hired Attorney Cige to handle a bullying case under New Jersey’s Law Against Discrimination against her son’s school district. The retainer agreement stated that Cige was entitled to the greater of (i) his hourly rate; (2) 37.5% of any recovery; or (3) statutory attorneys fees. Balducci testified at the trial level that she questioned these terms in Cige’s office before signing, at which point he told her that he would never charge her his hourly rate and that the school district would pay her legal fees. Balducci further testified that she never would have retained Cige if she knew she would have to pay his hourly rate even if the case was unsuccessful.  Cige denied telling his client anything other than what was written in the contract.

The trial court invalidated the retainer agreement, finding Cige had violated RPC 1.4(c) by failing to adequately explain the fee arrangement to his client. The appellate court upheld the finding of invalidity on that basis, but imposed other obligations on lawyers entering into fee agreements in fee shifting cases.  Specifically, if the attorney in a LAD case wanted to charge an hourly rate, the attorney is obligated to inform the client that the hourly rate could exceed the recovery, inform the client how much the hourly fees have totaled in similar cases, and that other attorneys in similar cases advance litigation costs. The Supreme Court questioned the wisdom or practicality of these rules, and directed that a committee be formed to study them and make recommendations.

Importantly for all lawyers, whether handling fee-shifting cases or otherwise, the Court ruled that the review of a retainer agreement is not limited by the parol evidence rule because of the ethical and professional principles at stake in the attorney-client relationship. Moreover, to the extent a retainer agreement is vague or unclear, the ambiguity is to be read in the client’s favor.

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.