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The Supreme Court has agreed to hear a case that may resolve a clash between its conflict-of-interest rules and a state statute that limits the employment of former government attorneys. The Court will review Advisory Committee on Professional Ethics Opinion 705, which found the Rules of Professional Conduct trump the more restrictive general ethics law. At the core of the appeal is how much power the Court is willing to share with the Legislature in regulating the practice of law and the conduct of lawyers, at a time when the issue of government ethics is prominent. There is much at stake in the appeal for lawyers who leave public service. The sweeping language of the statute, N.J.S.A. 52:13D-17, bars them and everyone in their firm from representing anyone in connection with a matter in which they were “substantially and directly” involved while working for the state. An amendment to the law, effective in March 2006, boosted the fine for a violation to $1,000 and added a civil penalty that can run as high as $10,000. The disorderly persons offense carries a prison term of up to six months. In contrast, RPC 1.11(c) allows the lawyer’s firm to take on the client upon written notice to the appropriate government agency, if the lawyer is screened off and does not share the fees. Opinion 705, issued on May 15, 2006, held that so long as a firm complies with the rule, it can represent a client even if one of its members has a personal conflict because of involvement in the matter during previous public employment. The appeal, In Matter of ACPE Opinion No. 705, comes on a petition for certification filed by the Department of the Public Advocate. Assistant Public Advocate Jo Astrid Glading urged the Court to overturn Opinion 705 to promote public confidence in government by holding lawyers to the same standard as other state employees. The committee itself recognized, in the opinion, that it would be better for the Court to resolve the questions of deference and comity raised by the competing standards. However the Court rules, it will resolve the dilemma for lawyers and firms who, despite Opinion 705, might feel they need to err on the side of caution given the heavy penalties under the law. Scope of Automobile Coverage Other recently granted civil appeals, detailed in a Notice to the Bar, concern commercial car insurance and consumer fraud actions. At issue in Potenzone v. Annin Flag Co.is the scope of coverage under a business automobile insurance policy. Penn National Insurance Company tried to deny coverage for injuries caused by a forklift based on a provision that excluded loading and unloading activities. It was clear from a 2005 Court ruling, Proformance Insurance Co. v. Jones, 185 N.J. 406, that New Jersey’s omnibus automobile statute invalidated the exclusion and mandated coverage. But how much coverage? The $500,000 face amount of the Penn National policy or the statutory minimum of $15,000? The ProformanceCourt said the $15,000 minimum but in Potenzone, Superior Court Judge Sebastian Lombardi held there should be full coverage, distinguishing the “business pursuits” clause in Proformancefrom Potenzone‘s “loading and unloading exclusion.” The appeals court reversed, in a published July 17, 2006, opinion, finding no logical basis for the distinction. How the Court rules on the appeal could affect a variety of other insurance exclusions, such as those applicable to vehicle renters, repair shops and parking lot employees. Marc Saperstein, president of the Association of Trial Lawyers of America-New Jersey, says New Jersey should follow the lead of New York, which raised its statutory minimum to $25,000 a few years ago. Keeping Out Canadian Cars Another appeal, Wilson v. General Motors Corp., will determine whether claims can be pursued against 19 American and Canadian carmakers and two trade associations under the state’s Consumer Fraud Act. The class action case consolidates four lawsuits in Camden and Burlington counties that also accuse the defendants of violating New Jersey’s Antitrust Act by conspiring to inflate new car prices through agreements not to import lower-priced Canadian cars into the U.S. The trial court dismissed both claims because the antitrust statute provides it must be construed consistently with federal law, which bars claims by indirect purchasers, and the conduct alleged was not an “unconscionable commercial practice” under the Consumer Fraud Act. The plaintiffs appealed only the dismissal of the consumer claim and a split court affirmed, with Judges Harvey Weissbard and Helen Hoens finding the claims were no more than traditional anticompetitive behavior. Dissenting Judge Ariel Rodr�guez handed the plaintiffs an appeal as of right, finding their claim fell within the language and policy of the consumer fraud law based on allegations that the defendants induced U.S. dealers not to honor warranties on Canadian imports and refused to provide recall information to U.S. buyers of new Canadian cars. Criminal Appeals Also on the Court agenda are several significant criminal appeals, including a clarification of State v. Jimenez, decided by the Court on Oct. 24. Accused child-killer Porfirio Jimenez claims he is mentally retarded, which would bar his execution under a 2002 U.S. Supreme Court case, Atkins v. Virginia, 536 U.S. 304. The Court’s June ruling placed the burden on Jimenez to prove retardation to the jury by a preponderance of the evidence after guilt has been determined but before the penalty phase of the trial. The Public Defender’s Office asked the Court to specify what happens if the jury is split on retardation. The Court agreed to do so on Dec. 8. Last Wednesday, Assistant Deputy Public Defender Stephen Kirsch filed a brief arguing that a nonunanimous decision on retardation should preclude a death sentence. State v. Francisis another interlocutory appeal in a capital case. Alturik Francis, accused of the 2002 murders of a woman and her two young children, is trying to keep out grand jury testimony by four of his own family members. The trial court agreed with Francis that the prosecutor improperly called his relatives for the dominant purpose of obtaining evidence to use against him at the penalty phase and barred use of the testimony for any purpose, except for inculpatory statements by Francis to the witnesses. An appeals court affirmed on May 10, 2006, but modified the ruling to allow use of the grand jury testimony for impeachment purposes. In State v. Luna, the Court will decide whether Daniel Luna’s rights were violated by his trial in absentia after he failed to show up on the scheduled date. It turned out he was locked up in Rikers Island at the time on New York charges. An appeals court affirmed Luna’s conviction on theft and weapons charges. More Issues Other appeals granted at the end of 2006 will decide whether: � Sixth Amendment precedents apply where a person appeals the termination of parental rights on the basis of ineffective assistance of counsel, DYFS v. B.R. � Certification was incorrectly granted in a class action by Wal-Mart employees for unpaid overtime, Iliadis v. Wal-Mart Stores. � The Merit System Board had the authority to reinstate Burlington deputy municipal court administrator Michelle Thurber, who was fired by Assignment Judge John Sweeney after she was pulled over and allegedly kicked out a police car window, leading to charges of driving under the influence and resisting arrest, Thurber v. City of Burlington. � An appeals court violated equal protection in holding the Wrongful Death Act inapplicable to a malpractice action that alleged lack of informed consent to an abortion because the doctor failed to inform the patient the fetus was a human being, Acuna v. Turkish. � A relative of a deceased tenant who was receiving a federal section 8 housing subsidy can succeed to the decedent’s rights under the Section 8 program and New Jersey’s Anti-Eviction Act, Maglies v. Estate of Guy.

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