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Clifford Van Syoc has won some of the biggest job bias awards in New Jersey history, but he shuns the state chapter of the National Employment Lawyers Association. “I don’t feel comfortable sitting around and having chit chat with them,” says Van Syoc, who has a firm in Cherry Hill. That’s because he represents clients with legal malpractice suits against some NELA-NJ members, he says. But when it comes to matters of mutual interest, they are on the same page. NELA has filed an amicus brief to support Van Syoc’s appeal in the 3rd U.S. Circuit Court of Appeals of an order punishing him with a $59,216 fee sanction for pursuing litigation after receiving a summary judgment motion. U.S. District Judge Stephen Orlofsky ruled last August that Van Syoc should have withdrawn a reverse discrimination suit against the Atlantic City Housing Authority because an August 1998 summary judgment motion showed he had no case. After the motion by adversary Charles Ercole of Cherry Hill, N.J.’s Klehr Harrison, the plaintiff’s lawyer “continued to pursue this lawsuit even when it became clear there was no basis in law or fact upon which his clients could prevail,” Orlofsky ruled in Murphy v. Housing Authority and Urban Redevelopment Agency of the City of Atlantic City, 158 F. Supp. 2d 438. For authority, Orlofsky invoked 28 U.S.C. 1927, which permits fee switching against lawyers who drag out proceedings “unreasonably and vexatiously.” Other rules and statutes permitting sanctions require the litigant to pay. The lawyer pays under the statute Orlofsky used. NELA’s brief warns that if Orlofsky’s opinion stands, it will frighten plaintiffs’ lawyers out of staunch defenses against summary judgment motions. That, in turn, will chill the vigorous enforcement of civil rights laws by plaintiffs seeking to vindicate their rights, the brief says. “Given the nature of summary judgment practice, no attorney should be sanctioned for opposing an opponent’s summary judgment motion where there is any colorable disputed issue of fact or of materiality,” the amicus brief says. “On a given day in a given case a given judge may deem summary judgment appropriate or inappropriate.” NELA also says that under Section 1927 the core issue is whether counsel acted primarily for oppressive reasons, not whether the action lacked merit. Orlofsky ruled that settlement correspondence showed that Van Syoc’s only interest was obtaining fees allowed by civil rights law, rather than reaching an equitable result for his client, a white housing authority accountant who claimed he suffered pay and benefits discrimination and sought a $650,000 settlement. Besides finding a dearth of evidence to support the claim, Orlofsky ruled that Van Syoc had made claims that weren’t cognizable under state and federal law. But NELA says there was no evidence of the bad faith required for Section 1927 sanctions. Sanctioning attorneys for bad faith in such circumstances could create conflicts of interest between a client who wants the summary judgment opposed and the attorney afraid of being sanctioned, NELA says. The brief’s authors are Brian Cige of Somerville, N.J., Fredric Gross of Mount Ephraim, N.J., and Andrew Erba, an associate in Philadelphia’s William Cuker. Van Syoc, who says he is glad to have NELA’s backing, has won millions of dollars in verdicts and settlements on behalf of public employees, including $3 million for various Atlantic City police officers. Mistrials and reversals have tempered his success. In a sense, the NELA brief is the least the association can do for a lawyer whose cases have established principles that have made the practice of plaintiffs’ employment law enticing in New Jersey. The cases include the much cited Hurley v. Atlantic City Police Department, 174 F.3d 95, and Taylor v. Metzger, 152 N.J. 490 (1998), which established the principle that a single racial slur could constitute a compensable act of bias under New Jersey’s liberal Law Against Discrimination. For Van Syoc, a 3rd Circuit affirmation of Orlofsky’s ruling would not be the worst-case scenario. Ercole has filed a cross appeal saying Orlofsky erred by confining the fee award to compensation for work performed between the filing and granting of the summary judgment. By Ercole’s reckoning, he should be paid for appellate work and for work before the summary judgment motion. In his brief, Ercole brushed aside the suggestion that bad faith sanctions in a case like Van Syoc’s drive a wedge between clients and lawyers. Case law protects lawyers who continue to pursue questionable litigation at the insistence of their clients. “If attorneys act responsibly and with respect to the court and their opposing counsel they will not be assessed fees under either 28 U.S.C. 1927 or the court’s inherent authority,” Ercole said.

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