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Edmund Burke was only half right in 1790 when he wrote, “Government is a contrivance of human wisdom to provide for human wants.” Government also provides a livelihood for lawyers, particularly those who represent clients subject to official regulation. In Georgian England, Burke railed against senseless bureaucracy and tried to reform it; he would be happy that a body of lawyers sprang up to keep bureaucracy honest. It can be far from sexy work. Among typical lawyers — litigators, corporate counsel, attorneys who handle wills as well as house closings and family matters — the various administrative law practices can seem so special as to border on the arcane. Many of the lawyers who appear regularly before government regulators and the Office of Administrative Law — 12,135 cases were filed in the OAL last year — are niche practitioners. But unlike real niches, the ones cut in stone, administrative practice areas constantly change in tune with developments in society and law. Here is a sampling of what New Jersey practitioners told the New Jersey Law Journal about current and potential changes in seven fields of administrative practice. CIVIL SERVICE AND PENSIONS Representing government workers in disputes with personnel agencies, particularly the Department of Personnel and Merit System Board; representing public employees whose pensions are at risk. Arnold Cohen, a partner with Balk, Oxfeld, Mandell & Cohen in Newark, N.J., says he has noticed a decline in the number of termination cases involving state workers, a trend he attributes to personnel shortages that make agencies reluctant to lose employees. In cases involving sexual harassment by men, however, the state will almost always fire the employee. “They are afraid there will be litigation by the woman,” Cohen says. In a recent case, the Department of Human Services terminated a 20-year employee even though he apologized profusely and the victim asked that he not be fired, Cohen says, adding that he won reinstatement for the employee. Cohen says shortages in the Department of Personnel have led to routine delays of a month or more in some disciplinary cases. For example, decisions in disputes over sick leave, which used to take two to three months, are now taking eight to 10 months, Cohen says. In a recent dispute over a client’s promotion within the Labor Department, it took the state a year to comply with an Appellate Division ruling, mostly because of staff shortages, Cohen says. At the same time, under the administration of Gov. Christine Todd Whitman, “the Merit System Board has become more conservative,” says Joseph Cooney, an associate in Somerset, N.J.’s Weissman & Mintz. Samuel Halpern, a former deputy attorney general who represents public employees in pension rights cases, calls recent decisions on pension rights for convicted criminals “a real hodgepodge.” Former Essex County Executive Thomas D’Alessio and former Somerset County Superior Court Judge Joseph Imbriani kept their pensions after being convicted of stealing. “On the other hand, Joe Blow comes in and loses his entire pension,” says Halpern, a solo practitioner in West Orange, N.J. He says he’s seeing more cases on the issue of what is “credible compensation” in the later years of service of high-ranking police officers and firefighters, whose pensions are pegged to their final salaries. Sudden pay raises at the end of careers will raise red flags with the Division of Pensions and Benefits. Also emerging as a hot issue is how to treat officers who retire but continue drawing payments as outside consultants, Halpern says. Although public workers will occasionally find their own counsel, the top practitioners in this field have solid connections with unions. Weissman & Mintz, for example, is closely tied to the Communications Workers of America, whose rolls list 50,000 public employees in New Jersey. Cooney says the union is turning more and more to nonlawyer representatives to handle members’ civil services cases. And, he adds, “they’re fairly skilled. They’re good.” Many of Cohen’s cases come from the 6,000-member International Federation of Professional and Technical Engineers Local 195 in East Brunswick, N.J., which represents blue-collar state workers. Lawyers who prevail in civil service cases can win fees, Cohen notes, but a fair hourly rate remains in dispute. Cohen says his rate is about $250 per hour, but that’s about $100 more than the Merit System Board wants to pay for a partner’s work. In an unpublished decision with ramifications for all lawyers eligible for fees in civil service cases, Matter of Eric Flake, A-3612-97T5, the Appellate Division ruled that the board had to consider fees customarily charged in localities for similar legal services and the abilities, experience and reputation of the lawyers performing the service. In Flake, the board wanted to pay $100 an hour to an associate in Cohen’s firm who won reinstatement and back pay for a Department of Human Services Employee. Cohen says that on remand the state followed the rate-setting procedure outlined by the court, but still came up with an unacceptable figure: $105. The case is now back in the Appellate Division. ENVIRONMENTAL PROTECTION Representing businesses and individuals seeking approvals from the Department of Environmental Protection or defending against DEP enforcement action. Among the clients of environmental lawyers, the Whitman administration made itself popular when it sloganized, “We’re Open For Business” and launched a drive to cut red tape in the Department of Environmental Protection. Lawyers say it’s true that the permitting process is easier than it used to be. But there are some exceptions. And two of them have to do with water. Jeffrey Wagenbach, a partner in Morristown’s Riker, Danzig, Scherer, Hyland & Perretti, says a lot of his time is spent defending against water discharge pollution complaints that carry mandatory minimum penalties enacted in the mid-1990s. The DEP seems particularly serious-minded about these cases, which is why they are ending up in the Office of Administrative Law rather than in easy settlements, he says. A lot is at stake; Wagenbach says he has seen potential penalties ranging from the high $20,000s to more than six figures. The relative lull in administrative proceedings over permitting may be short-lived. Richard Hluchan, a partner in the Voorhees, N.J., office of Philadelphia’s Ballard Spahr Andrews & Ingersoll, says the DEP and developers are likely to do battle over approvals for sewers in areas set aside as open space in the State Development and Redevelopment Plan. In a burst of environmentalism befitting a farm owner in rapidly suburbanizing Hunterdon County, Whitman has signaled her intention to have DEP regulations conform to the outlines of the plan and channel growth into existing urban and suburban areas. Hluchan says that when the DEP, in conformity with the plan, issues rules on which areas are off-limits to sewer construction, it’s going to produce a lot of work for lawyers representing developers seeking exceptions or challenging the DEP’s interpretations on applicability. Hluchan’s view is echoed by Joseph Maraziti, Jr. of Short Hills, N.J.’s Maraziti, Falcon & Healey, and he should know: Maraziti is chairman of the State Planning Commission. “There’s going to be a lot going on in the field of wastewater management,” he says. Maraziti says the number of proceedings involving disputes under the Coastal Area Facility Review Act also is likely to increase when the state plan and environmental regulations are coordinated. HEALTH PROFESSIONALS AND FACILITIES REGULATION Representing individuals and institutions before regulatory boards in defense against disciplinary actions and in applications for licensing. From acupuncturists to veterinarians, thousands of New Jersey health professionals are subject to discipline, and many are called upon to defend themselves against charges by patients and clients. Most of the boards are represented by deputy attorneys general in the Division of Law’s Consumer Affairs, Securities & DYFS Section. Many of the cases are heard in the Office of Administrative Law, though some boards — such as the Board of Psychological Examiners — hear cases directly. Several lawyers who represent professionals say that defense against charges of sexual harassment, a staple of their practices in the early and mid-1990s, has diminished, possibly because professionals prone to such behavior have been scared into cutting it out. Several groups of professionals, notably psychologists, have enacted codes of conduct forbidding relationships with current and past patients and clients. A lawyer who concentrates in defense of doctors, Anthony LaBue, a partner at Teaneck, N.J.’s DeCotiis, FitzPatrick & Gluck, says the more prevalent work now is defense of doctors accused of fraud. That’s obviously a product of the state’s beefed-up attack on insurance cheats. There also are more cases involving defense of doctors accused of mismanaging controlled dangerous substances. LaBue says the process has been streamlined in recent years with the appointment of a medical director to the New Jersey Board of Medical Examiners. “Having someone with that kind of expertise speeds up the process,” Labue says. Alma Saravia, a partner with Flaster/Greenberg in Cherry Hill, N.J., says the board is working on regulations likely to formalize the use of chaperones when doctors examine patients of the opposite sex. It will be interesting to see how strictly such requirements are enforced and what kinds of waivers will be accepted, she says. For years, lawyers who represented medical groups, clinics and nursing homes were busy helping their clients obtain certificates of need from state and federal regulators for items ranging from entire hospitals to a single piece of equipment like a CAT scan. With the deregulation that has gone into effect during the past three years, there’s little of that kind of work, says Jay Ganzman, a partner in Princeton, N.J.’s Smith, Stratton, Wise, Heher & Brennan. He and Michael Kalison, of Liberty Corner, N.J.’s Kalison, McBride & Jackson, suggest that lawyers who used to view government as the arbiter of what hospitals can do now view government as their potential ally in the battle with health maintenance organizations. And the battleground is likely to shift from such agencies as the Department of Health and Senior Services to the Department of Banking and Insurance, which regulates HMOs. Kalison envisions the possibility of providers’ lawyers becoming active championing complaints to the insurance regulators about delays and denials of payments by carriers. Disputes over privacy are bound to require legal services in the future, Ganzman says. Last November, the Health and Human Services Department published a draft of federal regulations governing hospitals’ responsibility to safeguard patients’ electronic records. Once the rules go into effect, lawyers are likely to be called on to defend hospitals in federal administrative proceedings initiated by alleged violations, Ganzman says. Ganzman says more and more health care facilities practitioners are becoming involved in arbitrations between HMOs and providers. Arbitration clauses in carriers’ contracts with doctors and hospitals have long been common; now arbitrations are being required by law. For experienced health care lawyers, acting as a neutral in the arbitration process can be a new niche, Ganzman suggests. Of all the niches in administrative law, representing individual professionals in disciplinary matters can be the most specialized. Christopher Barbrack, a solo practitioner in Princeton who is also a licensed psychologist, charges $300 per hour representing psychologists in licensing and disciplinary matters. Barbrack says there’s a growing number of cases involving alleged misconduct by psychologists in their work in child custody cases. Egged on by aggressive matrimonial practitioners, a party that doesn’t like a psychologist’s findings will file an ethics complaint with the Board of Psychology, forcing the psychologist to defend his or her action. LEMON LAW Litigation over whether automobile manufacturers must provide new cars to customers complaining of a material impairment affecting the vehicle’s use, value or safety. The Used Car Lemon Law went into effect in July 1996, but it generates little litigation; in the first 30 months of the law, for example, the OAL heard only 18 cases. James Dobis, of Livingston, N.J.’s Dobis & Reilly, the longtime New Jersey counsel for Ford Motor Co., says the number of customers represented by lawyers is increasing. He attributes that, in part, to successful claimants’ right to recoup their experts’ fees from the manufacturer. Even so, many of the lawyers on customers’ side are relatives or friends of the complainant, he says. They are capable of doing a good job because the standards are relatively clear, he says. In a recent conversation, Dobis ticked off several of the rules and standards and joked, “I explained the law to you in one minute. Now you can go do it.” Dobis says manufacturers rely on repeat business so they are eager to satisfy claimants before a trial, and his impression is supported by Department of Consumer Affairs records. In the 10 years ending in February 1999, 75.2 percent of cases went to the OAL as prepackaged settlements; 13 percent were dismissed; 7.5 percent were withdrawn and a meager 4.3 percent resulted in restitution. Each manufacturer has its favorite firms, so only a handful of practices are devoted to Lemon Law defense. And only an average of 312 cases get into the OAL each year. On the customers’ side, Mark Silber & Associates in Metuchen, N.J., is one of the most active. Dobis says Lemon Law is a type of work lawyers may turn to in the current downslide of automobile accident cases. Jobs on the defense side are good for young lawyers because many of the Lemon Law practitioners also do product liability defense. Marketing tip: Representing Japanese car makers in New Jersey is not a growth niche. The ratio of Lemon Law complaints to registered Honda/Acura, Nissan/Infiniti, Mazda, Mitsubishi or Subaru automobiles averaged roughly 1-to-3,000 from 1989 to 1999. In raw numbers, that’s seven cases per manufacturer per year. At the other end of the list, Chrysler averages about 76 cases a year — one complaint for every 392 registrations. LIQUOR LICENSING AND ENFORCEMENT Representing owners of taverns, package stores and restaurants who seek licenses or are accused of violating liquor laws. Robert Williams, a solo practitioner in West Orange who represents liquor licensees, says state regulators seem to be engaged in less nit-picking than before. Perhaps it’s a reflection of personnel cutbacks at the Division of Alcoholic Beverage Control, he says. For example, instead of citing a tavern owner for such violations as failure to display a license or post the required fetal alcohol warning in the ladies’ room, the ABC now tends to issue a warning, he says. Unabated, though, is the ABC’s enforcement of laws against serving minors, particularly in resort and college towns. Among Williams’ clients is Te Hall, a hangout for Seton Hall University students that is visited by investigators periodically. Practitioners who advise bar owners are spending more time trying to convince the ABC that the sophistication of clients’ efforts to check patrons’ identifications is keeping pace with technology that makes it easy for an 18-year-old to produce a fake ID. Williams says it appears that the ABC is placing increased emphasis on complaints of lewdness. “There’s more focus on go-go bars,” he says. Lewdness is well-defined in the regulations — wet T-shirt contests are OK, if the T-shirts aren’t transparent, for example — but when there’s a dispute over interpretation, the ABC tends to win, he says. A good economy means more restaurant openings, which is good for lawyers who represent eateries, but there’s also the opposite trend of consolidation in the retail liquor store industry, with the opening of branches of mega stores that drive out mom-and-pop liquor stores, Williams says. Unfortunately for lawyers, a big store with the resources to ensure strict compliance with the regulations may need fewer legal services than a small one. If it’s true that lawyers crave new laws and regulations that create uncertainty, there’s good and not-so-good news in the offing for Williams and others in his niche. The ABC is currently in the process of readopting regulations to replace a code that expires on July 24. The proposed new code was printed in the May 15 New Jersey Register, and Williams and other well-known practitioners have been asked by the ABC to comment. Last week he said that he hadn’t had a chance to read the new regulations but that he doesn’t expect anything dramatic in the new code. SCHOOL LAW All matters arising from N.J.S.A Title 18A and N.J.A.C. Title 6, particularly disputes about teacher tenure; employee compensation, benefits and discipline; student rights; vendors; relations between school boards; medical treatment and insurance. Adjudication of tenure disputes is faster, says Joseph Morano, a partner in Florham Park, N.J.’s Schwartz Simon Edelstein Celso & Kessler. Under a 1998 amendment to the Tenure Employees Hearing Law, N.J.S.A. 18A:6-16, discovery requests are to be initiated within 30 days of referral to the OAL, answers are due 30 days later, the hearing is to be held 30 days after discovery and briefs are due 30 days later. As a result of the law, “you have to work more quickly than before,” Morano says. Morano, chairman of the New Jersey State Bar Association’s Administrative Law Section, says the proliferation of rules granting priority to certain cases, particularly welfare rights matters, has reduced the judge pool for some education cases and slowed resolution. One example: it can take almost a year to resolve disputes over student residency. “A decision that you used to count on in June or July is now coming in November and December,” Morano says. By the time a case is resolved, the student with questionable residency may have graduated, he says. Taking their cues from the Department of Education and society in general, OAL judges are adopting a tougher attitude toward student misconduct, particularly when drugs and weapons are involved. This has been especially noticeable in the year since the massacre at Columbine High School in Colorado, Morano says. Theodore Sussan, of Spotswood, N.J.’s Sussan & Greenwald, says work on behalf of special education students is dominated by fewer than a dozen practitioners and experienced lay advocates because the law is complex and occasionally arcane. The regulations are supposed to be easy enough so parents can represent themselves. However, Sussan says, “often, petitioners are lulled into thinking the process is user-friendly, but it’s not.” He’s been in the field since 1975. Lately, school boards have been more prone to deny benefits and risk litigation because of concerns about the costs of providing special education. Sussan keeps the public current on special ed issues at his Web site, www.special-ed-law.com. Rebecca Spar, one of the few partners at large firms who represent students — she’s with Hackensack, N.J.’s Cole, Schotz, Meisel, Forman & Leonard — notes an increase in litigation over special education students removed from classes for disciplinary problems. Under the law, those cases must be expedited. School boards pay about $130 per hour, and there’s usually too much work per district for a solo practitioner. An example of consolidation in the field is the recent folding of five-lawyer education boutique Carroll, Weiss & Josephson of Lawrenceville into Marlton’s Parker, McCay & Criscuolo. Successful special education benefits claimants can win fee awards, and claimants’ lawyers are not restricted to the rates their adversaries receive from school boards. Sussan says there’s plenty of work for lawyers who want to get into the field. WELFARE LAW Representing public assistance beneficiaries in disputes with local, county and state welfare agencies. New laws designed to get people off welfare rolls and into jobs are still creating massive amounts of work for staff attorneys in legal services offices that represent public assistance beneficiaries. Last summer, as the effective date of a law limiting temporary rent subsidies neared, legal services lawyers were busy arguing in the Office of Administrative Law for clients claiming they qualified for exceptions to the cutoff. That battleground has quieted and will become even quieter in years to come; under state laws designed to phase out rental assistance of all kinds, there is a one-year lifetime limit on temporary rent subsidies. Lawyers in two of the busiest legal services offices say the emphasis has shifted to representation of clients trying to avoid sanctions for noncompliance with rules designed to get more welfare recipients into the work force. In the past, “a charge of refusal to cooperate with a caseworker wasn’t all that ordinary,” says Richard Bennett, executive director of Union County Legal Services Corp. Now, sanctions for recipients who, for example, don’t show up for job training, are commonplace, he says. As a result, there are more fair hearings before the OAL over whether the penalties are just. The hearings are crucial because sanctions could include a one-month loss of cash payments or food stamps. Richard Foard, a staff attorney with Essex-Newark Legal Services, represents 40 clients seeking relief in the OAL against sanctions for failure to show up for a Dec. 16, 1999, orientation for Newark welfare recipients being shepherded to the job market. Foard can’t file a class-action complaint on behalf of the 40 — federal law prohibits class-action suits by legal services agencies that receive federal funds — but he has arranged the next best thing. The 40 appeals will be consolidated in the OAL. Foard says the chief common issue in the cases is whether the welfare agency took the required preliminary steps before deciding the public assistance clients had to attend the orientation. Alfred Donnarumma, a staff attorney in the Union office with 20 years’ experience representing welfare clients, says his office is busier than ever. It’s not the kind of work that private attorneys ever coveted. Nor has a body of lay advocates emerged, as they have in the special education field. Many recipients will represent themselves, but they are rarely called on to litigate issues repeatedly, so “it’s not like they get a lot of practice,” Donnarumma says.

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