New Jersey State Bar Association - The voluntary Bar Association of New Jersey, serving members since 1899.

Capitol Report

July 16, 2012


Special Edition


This is the final installment of a special report of cases in which the New Jersey State Bar Association (NJSBA) has participated as an amicus curiae party in 2011 and 2012. The first installment appeared on May 14. More information, including the NJSBA’s brief filed in each case, can be found at www.njsba.com or by calling the NJSBA’s Legal Affairs Department at 732-937-7505.

 

PROFESSIONAL RESPONSIBILITY

Nostrame v. Santiago, Docket No. 068651. This case questions whether an attorney who was terminated by his client can maintain an action against the client’s new attorney for tortious interference with contract under the circumstances. The NJSBA submitted a brief drafted by Shalom D. Stone and Stacie L. Powers, arguing that a client’s right to discharge her attorney should be paramount; that claims between attorneys for tortious interference with contract should be permitted only where an attorney employed wrongful means; and that the well-known, longstanding quantum meruit recovery process for discharged attorneys should not be altered. Certification was granted on Nov. 18, 2011. Oral argument is pending.

 

Petition for Review of the Letter Decision of the Committee on Attorney Advertising, Docket No. 47 2007, Docket No. 62,134. In this case, the Court is asked to determine whether a mediation center that employs attorneys who also perform legal services use the name Alpha Center for Divorce Mediation, followed by the name of the attorney who is the managing partner, is consistent with RPC 7.1 and RPC 7.5 of the Rules of Professional Conduct. The NJSBA submitted a letter brief arguing that the prohibition against law firm trade names in RPC 7.5 is constitutionally permissible and serves a substantial governmental interest, which is outweighed by any benefit of eliminating the prohibition, and, therefore, it should be preserved. Certification was granted on May 29, 2008, oral argument was heard on Dec. 2, 2008, the matter was remanded on Feb. 26, 2009, and a second round of oral argument was heard on Jan. 4, 2011. A third round of oral argument is pending.

 

Schoenefeld v. State of New York, Docket No. 11-4283-cv. This case challenges the constitutionality of a New York statute requiring non-resident attorneys to maintain an office in the state. The NJSBA submitted a brief drafted by David B. Rubin, arguing that, as New Jersey has recognized through the evolution of its bona fide office rule, with today’s technological advancements, New York’s in-state office requirement for non-resident attorneys impermissibly discriminates against such attorneys. The case is pending in the United States Court of Appeals for the Second Circuit.

 

SCHOOL LAW

In Re: Complaint Filed by the Allamuchy Township Board of Education, Docket No. 9-11 before the Council on Local Mandates. This case was a challenge to the Anti-Bullying Bill of Rights Act brought before the Council on Local Mandates as an unfunded mandate. The NJSBA submitted a brief drafted by Candida Griffin, John Keating, Felice T. Londa, Luanne Peterpaul, and Thomas H. Prol, arguing that the Anti-Bullying Bill of Rights Act is exempt from review by the council because it implements state constitutional requirements and provides a funding source for municipalities. The NJSBA further argued that the act is not an unfunded mandate because it merely augments existing trainings, streamlines investigatory and disciplinary procedures, and directs school districts to utilize existing resources or nonprofit resources that are widely available. On Jan. 27, 2012, the Council on Local Mandates voided the act as an unfunded mandate, but delayed implementation of its decision until a written opinion was rendered. In the meantime, the act was amended by the Legislature, and on March 26, 2012, those amendments were signed into law appropriating $1 million to fund the requirements under the act.

 

TAXATION

Prime Accounting Dep't v. Township of Carney's Point, Docket No. 068380. In this case, the Court will determine if a taxpayer should be permitted to amend a complaint challenging a tax assessment to add itself as sole plaintiff to avoid dismissal for lack of standing where the complaint did not correctly identify the taxpayer, and instead named a former tenant's accounting department, which never owned or leased the property but was listed on the municipal tax bill. The NJSBA submitted a brief in the Appellate Division drafted by Tom Olson, Cory K. Kestner and Richard P. DeAngelis, arguing that the taxpayer should have been permitted to amend the complaint. The Appellate Division disagreed. The NJSBA submitted a brief to the Supreme Court, drafted by Susan A. Feeney and Daniel P. Zazzali, again arguing that the taxpayer should be permitted to amend the complaint, noting the Appellate Division erred when it failed to recognize the assessor’s specific mandates in keeping updated tax lists, and that the petitioner properly relied on the tax lists prepared by the assessor. The NJSBA further argued that the Appellate Division decision was contrary to well-established law, violated principles of due process and uniformity, and could negatively impact municipalities. Certification was granted on Nov. 4, 2011. Oral argument is pending.