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South Orange, N.J., attorney Michael Reimer readily admits that he and his partner are sometimes at odds. While other employment lawyers represent plaintiffs or management, Reimer and Linda Niedweske counsel both. They spend half the time representing employees who say they were discriminated against or fired illegally and the other half helping management avoid liability. “We sort of work against each other,” says Reimer, with a chuckle. Reimer and Niedweske are among the sprouting breed of lawyers learning that it makes good business sense not to limit an employment practice to representing only labor or only management. Unlike personal injury practice, where defense work is doled out by insurance carriers for whom plaintiffs’ lawyers are persona non grata, employment lawyers are free to serve two masters. Subject to conflict checking, they can take the next plaintiff who walks in the door with negligible fear of being ostracized by corporate clientele. In fact, the shared experience is viewed as a valuable commodity. Lawyers who work both sides say that individual clients and companies like it if their lawyer knows what to expect from the rival camp. “Both sides tend to like the fact that I have a broader perspective,” says Martin Aron, of counsel with Short Hills, N.J.’s Edwards & Angell who represents management but also takes plaintiffs’ cases. And as employment law continues to grow, “you will probably see more people doing both,” says Paul I. Weiner of Livingston’s Weiner & Katz, who does mostly defense work but also represents plaintiffs. It’s a shift from the days of traditional labor-lawyer practice, in which lawyers had to make an inexorable choice to represent either unions or management, says management attorney Wayne Positan, of Roseland’s Lum, Danzis, Drasco, Positan & Kleinberg. Lawyers continued to be associated with one side or the other when employment law — including discrimination and wrongful discharge litigation — emerged as a practice area in the mid-to-late 1970s. Lawyers who represent both plaintiffs and management, however, say it no longer makes sense to advocate for only one side in case after case. “My view is that there are good cases on both sides,” says Steven Adler, a partner with Hackensack’s Cole, Schotz, Meisel, Forman & Leonard, who takes plaintiffs’ cases but mostly represents employers. Both Reimer and Weiner say they take cases based on the facts, without a predisposition to either side. That’s the way cases are supposed to be evaluated, they say. However, not all management-side lawyers have lost the fear that taking plaintiffs’ cases will alienate corporate clients. “Employer-clients tend to react negatively to it,” says management lawyer Patrick Stanton, of Morristown’s Stanton, Hughes, Diana, Cerra, Mariani & Margello. Zealously representing a plaintiff could lead to a new cause of action or plaintiff-friendly case law, and that might end up hurting a corporate client down the road, explains Stanton. “You find yourself on two sides of the same issue” is how another defense attorney puts it. And that can be problematic, especially if an adversary starts to use an attorney’s statements against him or her — for example, by citing to briefs the attorney wrote when representing the other side. Indeed, because employment statutes such as the Law Against Discrimination and the Conscientious Employee Protection Act are relatively young, there is more opportunity for employment lawyers to make new law, notes Nancy Erika Smith, of Montclair’s Smith Mullin, who never crosses over to the management side. When there’s no clear precedent, lawyers have to make policy arguments; they have to tell the court which way the law should be interpreted, Smith adds. Unlike other areas where the law is more settled and the cases turn more on the facts, employment law makes it harder to argue the same law for opposing sides. But attorneys who represent both sides say good lawyers make consistent legal arguments by focusing on the facts. And while creating precedent is always a possibility in litigation, it doesn’t happen often enough to justify limiting a practice to one side. “It’s not an everyday occurrence that you make new law in New Jersey,” says Adler. Bruce McMoran, who mostly represents plaintiffs but also defends companies, says attorneys who only have management experience tend to underestimate the value of a plaintiff’s case when they counsel corporations. “They don’t understand the impact these cases have on jurors,” says McMoran, who heads a firm in Iselin. “They lose sight of the human element.” Likewise, plaintiffs’ attorneys who do defense work know how management lawyers think. And they are better able to counter defense strategies when they represent plaintiffs. “Since we know what goes into making a good defense, we’re very good at overcoming that when representing a plaintiff,” says Reimer. Lawyers from bigger firms who represent both sides say they carefully watch for any potential conflict and are very selective in the plaintiffs’ cases they take. Aron and Adler, for example, say they concentrate on management matters but take plaintiffs’ cases that have considerable merit. Aron says that if liability is uncertain or the damages are not great, he will refer the case to a plaintiffs’ firm. For smaller firms with fewer corporate clients, potential conflicts are less of a problem. Reimer says his two-person firm has no conflict problems because the defense side of his practice focuses on smaller employers, with fewer than 150 employees. Given the large number of such companies, the chances are small that he would face a conflict, he says. And, at last, there are the die-hards, lawyers who, out of ideology, upbringing or habit, are forever pro-worker or pro-management. “I’m pretty unsympathetic to corporations,” says Smith. That’s not to say that companies are always in the wrong, but Smith says she feels more passionate about workers’ rights and is therefore a more effective advocate for plaintiffs. Management attorney Steven Suflas, a partner with Haddonfield’s Archer & Greiner, says his pro-employer beliefs come from having watched his father operate a small business. As a result, he says, he only wants to represent management. Another attorney who limits his representation to management says he’s become numb to the tales of woe by discharged employees during depositions and trials, and so wouldn’t have enough sympathy to represent plaintiffs.

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