The year that ended with the big bang of Hurricane Sandy had, until then, left little impact on the landscape of New Jersey legal practice. There was no blockbuster decision by the state Supreme Court, except for the judicial pension case — limited in effect to the judiciary itself, and even that proved transitory. Court rule changes were minimal and there was no legislation of much consequence to lawyers’ practice.
Rather, 2012 was a year of deadlocks and impasses, such as:
• The continuing rift between Gov. Chris Christie and the Legislature over filling Supreme Court vacancies — one of which has been open for two years.
• Resistance by U.S. Sen. Robert Menendez to federal appeals court nominee Patty Shwartz, whose appointment remains in limbo despite his eventual signoff.
• A deadlock over Essex County judge vacancies that would have cost former Attorney General Paula Dow a seat, had she not moved out of county.
• Opposition by Rutgers’ law faculties to the governor’s plan to subsume Rutgers University’s Camden campus, including the law school, into Rowan University.
• Legal Services of New Jersey’s disdain for a State Bar Association proposal to increase pro bono legal efforts statewide, with CLE credit as incentive.
Had it not been for Sandy hitting when it did, it seems nothing could have galvanized the state’s politicians, lawyers and judges into collective action. The response to the storm was heartening, as courts bent the rules to help affected lawyers and litigants and lawyers lined up as volunteers to provide victims with legal help on Federal Emergency Management Agency claims and other matters. Bar associations and law firms led the way in organizing assistance and raising donations. It was the legal profession’s finest hour.
Though the rest of the year had little to distinguish it, there were stories worthy of at least bemused interest:
Animal-rights activists picketed outside the Livingston offices of Morgan Melhuish Abrutyn in February, seeking an apology from a firm associate, Mark Thomas Hall, for off-color Internet postings directed at Freehold solo Doris Lin, who represented the Bear Education and Resource Group (BEAR) and the Animal Protection League of New Jersey in their unsuccessful challenge to the December 2011 bear hunt. Hall had singled out Lin, promising to shoot a bear in her honor, and then posted a photo of himself and his daughter with two dead bears. Other remarks he posted further inflamed the activists, who complained to the firm, demanding an apology. The firm not responding, as many as 19 pickets took to the street, carrying signs saying “Shame on Mark T. Hall for his sexism and cruelty” and “Morgan Melhuish & Abrutyn — Do your clients know what Mark T. Hall did?” Another called him an “unethical, bear-killing attorney.” Within a week, Hall sent Lin a written apology for “any offense you took.”
In the first known application of New Jersey’s bias law increasing penalties for offenses found to be bias-based, a former Rutgers University student accused of spying on his roommate in the days leading up to his suicide was found guilty on March 16 of privacy invasion and anti-gay intimidation, among other charges. Dharun Ravi, 20, of Plainsboro, was convicted by a Middlesex County jury on all 15 counts, the most serious of which, bias intimidation, is a second-degree offense. Ravi, while a freshman, used a dorm room webcam to view Tyler Clementi, who had asked to have the room to himself, kissing another man. Clementi jumped off the George Washington Bridge three days later. The case drew national attention to the issues of teenage suicide, discrimination against gays and the impact of evolving technology. Sentencing was postponed as defense lawyers filed motions seeking a new trial, based on arguments that the bias intimidation law was incorrectly applied.
Death Race 2012
Attorney General Jeffrey Chiesa lodged criminal charges on July 27 against two state troopers who escorted members of an exotic-car club at high speeds down the Garden State Parkway. Sgt. First Class Nadir Nassry was charged with third-degree tampering with public records and fourth-degree falsifying or tampering with records. Trooper Joseph Ventrella was charged with one count of fourth-degree falsifying or tampering with public records. Both were suspended without pay in April. Witnesses to the March 30 caravan from northern New Jersey to Atlantic City said the vehicles were traveling more than 100 miles per hour, weaving in and out of traffic and causing other motorists to swerve to get out of the way. The episode laid bare a failure of command. Though State Police Superintendent Colonel Rick Fuentes declared that lower-level station commanders could authorize escorts and that they are routinely approved, a Standing Operating Procedure, in place at least since 2002 and last revised in 2007, said escorts are allowed only in limited circumstances and require approval by the Field Operations Section commanding officer, a high-level official. If state police escorts were commonly approved at the local level, there was rampant noncompliance with the policy.
Change of Scenery
Paula Dow’s nomination to the Superior Court in Essex County fell hostage to a political logjam, so she moved to Burlington County. Dow had been caught in a dispute between Christie and Senate Democrats, in particular Sen. Ronald Rice, who demanded that Christie’s intended nominee for commissioner of the Department of Education, Christopher Cerf, appear before the Joint Committee on Public Schools. Christie has refused that demand and refused to nominate anyone to fill any of those slots, except for Dow, until Cerf got a confirmation vote. Once Dow moved to Burlington, her path was clear. Christie renominated her, the Senate confirmed her in June and she took the bench in July.
Farer or Foul?
Farer Fersko, a Westfield environmental and real estate boutique, filed for Chapter 7 bankruptcy on Jan. 3, the same day all but one of its 14 lawyers started at Greenbaum Rowe Smith & Davis in Woodbridge. But the court papers showed that the shuttering of the smaller firm was carefully planned for months and precipitated the bankruptcy by rendering the firm unable to pay all its creditors. As the firm’s lawyer count fell, it failed to renegotiate the lease with the trust that owned its headquarters at 600 South Ave. in Westfield. The landlord promptly sued Greenbaum Rowe, seeking $2.3 million in rent for the remaining lease based on claims that the firm conspired with Farer Fersko to help it get out of its lease. The bankruptcy trustee warmed up a possible adversarial action, alleging to a judge that Greenbaum Rowe received case files and other assets from Farer Fersko to allow it to “capitalize on and receive the benefit of work already done” and that the Farer partners “were intimately involved in the strategy.” As of December, U.S. Bankruptcy Judge Rosemary Gambardella was weighing a proposed $1.2 million settlement of the trustee’s claims.
Judges, Judges Everywhere
Justice John Wallace Jr.’s seat on the Supreme Court had been officially vacant since 2010 due to Senate Democrats’ withholding of advice and consent on a permanent replacement until the end of the term that Wallace could have served. That milestone was reached last March, and it coincided with Justice Virginia Long’s retirement, creating the unprecedented situation of two court vacancies filled by two temporarily assigned Appellate Division judges: Ariel Rodriguez and Mary Catherine Cuff. As replacements for Long and Wallace, Christie announced two nominees who would become the first Asian-American justice, Phillip Kwon, and the first openly gay justice, Bruce Harris, who is also black. But the candidates caused immediate friction. Critics of Harris cited his perceived lack of litigation experience, while financial irregularities in a business owned by Kwon’s mother raised concerns. Both were rejected by the Senate Judiciary Committee, Kwon in March and Harris in June, in votes generally along party lines. Not until December were two new nominees announced, which ensures the court will remain with only five justices at least until the spring, and probably longer.
Pro Bono Binge
New Jersey’s top 20 firms racked up 100,746 pro bono hours in 2011, breaking 100,000 for the second time while leaving intact the previous year’s record of nearly 104,000 hours. The 2011 figure represents an impressive average of more than 33 hours for each of the 3,027 attorneys at the top 20 firms. And the proportion of those who did 20 hours or more of pro bono went up in 2011, from 25.7 percent to 28 percent. Leading the pack once again were the same firms that have held the top four spots since 2008: Lowenstein Sandler in Roseland, Gibbons and McCarter & English, both in Newark, and Porzio Bromberg & Newman in Morristown. Gibbons’ crowning achievement was an unprecedented ruling granting sanctions, in a long-running Freedom of Information Act suit, against the Central Intelligence Agency for destroying 92 videotapes of detainee interrogation sessions. Twelve tapes showed the use of “enhanced interrogation techniques,” including waterboarding of two Saudi Arabian men alleged to be part of al-Qaeda.
Pro Whose Bono?
A State Bar Association task force proposing to raise the roof on pro bono legal efforts is meeting opposition from an unlikely quarter — Legal Services of New Jersey, the state’s largest pro bono provider. In a 61-page report titled “Closing the Justice Gap,” the task force recommends a raft of measures, including establishment of a judiciary commission; creation of a statewide pro bono web portal; allowance of CLE credit for pro bono work; and clarification and expansion of what qualifies for exemption from mandatory pro bono service. But LSNJ decried the recommendations as the product of a one-size-fits-all approach that failed to assess the most pressing legal needs of the poor and the real obstacles to meeting those needs, including the economic realities at small and solo firms and the pressure at larger ones to rack up billable hours. Despite a letter from LSNJ’s board chairman, former Chief Justice Deborah Poritz, urging caution, the State Bar Board of Trustees voted on May 15 to approve the report. But it also created an ad hoc committee to further examine the subject, in light of concerns expressed by LSNJ. The proposal has been in stasis ever since.
Rutgers as One
Gov. Christie’s proposed merger of Rutgers-Camden, including the law school, with Rowan University, was successfully fought off by the law faculty. The plan, announced Jan. 25, would have made Rowan — which recently opened up a medical school affiliated with Cooper University Hospital — the main research university of Southern New Jersey. That would have meant the name Rutgers in south Jersey would disappear. But the law faculty feared loss of the Rutgers affiliation would cost the law school prestige, contributing further to an already palpable downturn in applications, enrollment and fundraising. They proposed, as an alternative, a combination of the Camden and Newark law school campuses, saying it “holds the promise of raising the national stature of legal education and scholarship at Rutgers to unprecedented heights.” The Rutgers board of governors, whose approval was necessary to the Rowan merger, struck a compromise in June that allows Rutgers-Camden to offer joint health-sciences programs, leaving the law school intact. •