Articles Posted in Professional Malpractice & Ethics

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Defendant Glenn Ciripompa was a tenured high school math teacher in the Bound Brook School District. Defendant's behavior came under the scrutiny of the Bound Brook Board of Education (Board) after the Board received copies of student Twitter posts alleging "Mr. C" was electronically transmitting nude photographs. An investigation uncovered defendant's pervasive misuse of his District-issued laptop and iPad, as well as evidence of inappropriate behavior toward female colleagues, often in the presence of students. The results of the investigation spurred the Board to seek defendant's termination from his tenured position and served as the substantive allegations of the two-count tenure complaint against defendant. In this appeal, the issue presented for the Supreme Court's review centered on whether an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual-harassment claim in a law against discrimination (LAD) case to a claim of unbecoming conduct in the teacher disciplinary hearing. After review, the Supreme Court found that the arbitrator impermissibly converted the second charge of unbecoming conduct into one of sexual harassment. The arbitrator's review was not consonant with the matter submitted; rather, he imperfectly executed his powers as well as exceeded his authority by failing to decide whether Count II stated a successful claim of unbecoming conduct in support of termination. The arbitrator's award was therefore ruled invalid. View "Bound Brook Bd. of Edu. v. Ciripompa" on Justia Law

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Plaintiff sought treatment for sleep apnea from an orthodontist. Plaintiff used the appliance given to him for treatment but complained that it caused the dislocation of some teeth. Contending that the orthodontist did not inform him that the appliance may dislocate teeth, plaintiff filed a complaint alleging that the treating orthodontist provided insufficient information to permit him to make an informed decision to proceed with the recommended treatment. Presented for the Supreme Court's review was the "vexing and recurring" issue of whether an affidavit of merit submitted by a plaintiff in an action alleging negligence by a licensed professional satisfied the requirements of the Affidavit of Merit statute (AOM statute). The trial court conducted a "Ferreira" conference and determined that plaintiff submitted a timely affidavit of merit; however, the court dismissed with prejudice plaintiff's complaint because plaintiff submitted the affidavit from a dentist who specialized in prosthodontics and the treatment of sleep apnea. The court stated that plaintiff knew that the dentist who treated him was an orthodontist and that the statute required submission of an affidavit of merit from a like-qualified dentist. In other words, the court determined that plaintiff was required to submit an affidavit of merit from an orthodontist rather than an affidavit from a board-certified prosthodontist who had specialized in the treatment of sleep apnea for twenty years. The Supreme Court concluded after review that the affidavit of merit submitted by plaintiff satisfied the credential requirements of the AOM statute. The Court therefore reversed the judgment of the Appellate Division and remanded the matter to the trial court for further proceedings. View "Meehan v. Antonellis" on Justia Law

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In this appeal, the issue this case presented for the Supreme Court's review centered on whether a law firm practicing as a limited liability partnership (LLP) failed to maintain professional malpractice insurance to cover claims against it, and, if so, whether that failure should cause the revocation of the firm's LLP status, rendering innocent partners personally liable. In July 2009, Mortgage Grader hired Olivo of Ward & Olivo (W&O) to pursue claims of patent infringement against other entities. Mortgage Grader entered into settlement agreements in those matters. In exchange for one-time settlement payments, Mortgage Grader granted those defendant-entities licenses under the patents, including perpetual rights to any patents Mortgage Grader received or obtained through assignment, regardless of their relationship to the patents at issue in the litigation. It is those provisions of the settlement agreement that allegedly gave rise to legal malpractice. In 2011, W&O dissolved and entered into its windup period. W&O continued to exist as a partnership for the sole purpose of collecting outstanding legal fees and paying taxes. The next day, Ward formed a new LLP and began to practice with a new partner. Mortgage Grader filed a complaint against W&O, Olivo, and Ward in October 2012, alleging legal malpractice by Olivo, and claiming that the settlement agreements resulting from Olivo's representation harmed Mortgage Grader's patent rights. The motion court denied Ward's motion to dismiss, first determining that Mortgage Grader had failed to comply with the statutory requirement to serve an affidavit of merit (AOM) on each defendant named in the complaint, and rejected its substantial compliance argument. However, the court also determined that W&O failed to maintain the requisite insurance, which caused its liability shield to lapse and relegated W&O to a GP. Thus, the motion court concluded that Ward could be held vicariously liable for Olivo's alleged legal malpractice. The Appellate Division reversed. The Supreme Court affirmed, finding that law firms organized as LLPs that malpractice insurance did not extend to the firm's windup period, and tail insurance coverage was not required. View "Mortgage Grader, Inc. v. Ward & Olivo, L.L.P." on Justia Law

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In this appeal, the issue before the Supreme Court centered on whether a chief municipal court judge whose son became a member of the police department in the same municipality could hear cases involving that police department. The Supreme Court held that, "consistent with the canons of the Code of Judicial Conduct, a municipal court judge whose child becomes a police officer in the same municipality may not hear any cases involving that police department. The judge also may not supervise other judges who hear those cases." View "In the Matter of Advisory Letter No. 7-11 of the Supreme Court Advisory Committee on Extrajudicial Activities" on Justia Law

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This dispute arose in the context of a large construction project known as the Hudson-Bergen Light Rail Transit System. Plaintiff Twenty-First Century Rail Corporation served as the prime contractor for the Project. In January 2002, Twenty-First Century, acting through its contracting affiliate, Washington Group, entered into a contract with Frontier-Kemper/Shea/Bemo, Joint Venture (FKSB). Pursuant to that contract, FKSB was responsible for construction of “the civil, electrical, mechanical and emergency system portions of the tunnel, station, plaza, and elevators” for the (N30) Project. In 2004, FKSB retained Bruce Meller and his law firm, Peckar & Abramson, in connection with the work that FKSB was performing on the N30 Project. In particular, Richard Raab, who was an officer of FKSB and who served as its representative, first telephoned Meller in February 2004 and arranged to meet with him at the Peckar & Abramson offices. Raab signed a retainer agreement on behalf of FKSB, pursuant to which the lawyers were asked to provide FKSB with certain legal advice. The law firm provided its opinion on the issues about which it had been consulted in the form of a letter. A year later, Meller received a phone call from Paul Killian, Esquire. Killian told Meller that he was representing FKSB and wanted Meller’s impressions of Washington Group because FKSB was considering whether to enter into an agreement with it. Thereafter, the lawsuit at issue in this appeal was filed. Twenty-First Century, for which Washington Group was the contracting affiliate, and FKSB alleged that PB Americas was responsible for the N30 Project delays and the resulting costs due to defective project designs and slow responses to requests for corrections. Meller’s law firm, Peckar & Abramson, represented PB Americas. PKSB filed a motion to disqualify Peckar & Abramson based on the prior representation. The trial court denied the motion, concluding that many of the documents that would have been provided to the law firm for its use in preparing the opinion letter were publicly available, the representation there was insignificant and immaterial, and the matters were not substantially related. The Appellate Division affirmed. Upon review, the Supreme Court concluded that disqualification of the attorney for PB Americas was warranted in this case because details relating to the construction project, the relationship among the parties, and the attorney’s prior representation of an adverse party, FKSB, demonstrate that the subsequent representation was prohibited by RPC 1.9(a). View "Twenty-FirstCentury Rail Corp. v. New Jersey Transit Corp." on Justia Law

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Defendant Frank A. Louis, Esq. represented Plaintiff Julia Gere in connection with Plaintiff's divorce from Peter Ricker. Pursuant to the property settlement agreement, Plaintiff had a six month window, which ended in October 2000, to decide how she wished to proceed with respect to the parties' ancillary real estate investments. Plaintiff's understanding was that she would retain a one-half interest in those assets unless she affirmatively advised Ricker within six months that she did not wish to do so. One of those assets was Navesink Partners, which owned both the real estate and business operations of a marina. Based on Louis's interpretation of Plaintiff’s wishes after a discussion with her friend, Louis sent a letter dated October 11, 2000, to Ricker's attorney stating, "this will confirm that except for the Marina, Mrs. Ricker wishes to maintain one-half interest in all other properties." Subsequently, a dispute arose in which Ricker maintained that Plaintiff had waived any interest in Navesink Partners, and Plaintiff contended that she did not waive her interest, that she wanted to continue her ownership interest in the marina's real estate, and that she was entitled to fair value for her interest in the marina's business operations. Plaintiff ultimately sued Louis for malpractice over the purported waiver of her interests in the marina property. The issue before the Supreme Court on appeal was whether "Puder v. Buechel" (183 N.J. 428 (2005)) barred Plaintiff's malpractice action against her former attorney and whether that claim was time-barred. The appellate division affirmed the trial court decision that Plaintiff indeed was time barred, and that she voluntarily entered into a settlement agreement regarding the marina property which she testified was "fair and reasonable." Upon review, the Supreme Court found Plaintiff's case was materially distinguishable from "Puder," and that her legal malpractice claim was not barred. View "Gere v. Louis" on Justia Law

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In these consolidated appeals, the Supreme Court considered whether "Padilla v. Kentucky" (130 S.Ct. 1473 (2010)) could be applied retroactively on collateral review, and whether defendants' attorneys were ineffective under "State v. Nunez-Valdez" (200 N.J. 129 (2009)). In 2004, Defendant Frensel Gaitan was indicted for multiple possession of a controlled dangerous substance (CDS) and distribution charges. He pled guilty to the charge of third-degree distribution of a CDS within one thousand feet of a school in 2005, and was sentenced to five years’ probation. Gaitan did not file a direct appeal. In 2008, based on the drug conviction, a removable offense, Gaitan was removed. He thereafter filed a PCR petition alleging ineffective assistance of counsel. Although Gaitan had responded "yes" to Question 17 on the plea form, which asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty," he asserted that counsel failed to warn him that his plea carried with it potential immigration consequences. In 2007, Defendant Rohan Goulbourne was indicted on multiple CDS possession and distribution charges. He agreed to plead guilty to one count of possession of a CDS with intent to distribute within one thousand feet of a school. The prosecutor, in return, recommended a sentence of three years' imprisonment with a fifteen-month period of parole ineligibility. At a March 2008 plea hearing, both defense counsel and the court informed Goulbourne that he "may very well" be deported as a result of the plea. The court also noted that Goulbourne answered all the questions on the plea form, which included Question 17, and that he signed the form after reviewing it with his attorney. Satisfied that Goulbourne knowingly and voluntarily was pleading guilty, the court accepted the plea. The court imposed the recommended sentence, and Goulbourne did not appeal. Upon review, the Supreme Court concluded that "Padilla" represented a new constitutional rule of law that for Sixth Amendment purposes, was not entitled to retroactive application on collateral review. Although "Nunez-Valdez" governs the standard of attorney performance in these cases, the Court concluded Defendants were not entitled to relief under that decision because neither was affirmatively misadvised by their counsel, nor did they establish prejudice. View "New Jersey v. Gaitan" on Justia Law

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In these consolidated appeals, the Supreme Court considered whether "Padilla v. Kentucky" (130 S.Ct. 1473 (2010)) could be applied retroactively on collateral review, and whether defendants' attorneys were ineffective under "State v. Nunez-Valdez" (200 N.J. 129 (2009)). In 2004, Defendant Frensel Gaitan was indicted for multiple possession of a controlled dangerous substance (CDS) and distribution charges. He pled guilty to the charge of third-degree distribution of a CDS within one thousand feet of a school in 2005, and was sentenced to five years’ probation. Gaitan did not file a direct appeal. In 2008, based on the drug conviction, a removable offense, Gaitan was removed. He thereafter filed a PCR petition alleging ineffective assistance of counsel. Although Gaitan had responded "yes" to Question 17 on the plea form, which asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty," he asserted that counsel failed to warn him that his plea carried with it potential immigration consequences. In 2007, Defendant Rohan Goulbourne was indicted on multiple CDS possession and distribution charges. He agreed to plead guilty to one count of possession of a CDS with intent to distribute within one thousand feet of a school. The prosecutor, in return, recommended a sentence of three years' imprisonment with a fifteen-month period of parole ineligibility. At a March 2008 plea hearing, both defense counsel and the court informed Goulbourne that he "may very well" be deported as a result of the plea. The court also noted that Goulbourne answered all the questions on the plea form, which included Question 17, and that he signed the form after reviewing it with his attorney. Satisfied that Goulbourne knowingly and voluntarily was pleading guilty, the court accepted the plea. The court imposed the recommended sentence, and Goulbourne did not appeal. Upon review, the Supreme Court concluded that "Padilla" represented a new constitutional rule of law that for Sixth Amendment purposes, was not entitled to retroactive application on collateral review. Although "Nunez-Valdez" governs the standard of attorney performance in these cases, the Court concluded Defendants were not entitled to relief under that decision because neither was affirmatively misadvised by their counsel, nor did they establish prejudice. View "New Jersey v. Goulbourne" on Justia Law

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Defendant-Appellant KPMG already was in the process of auditing Papel Giftware's 1998 and 1999 financial statements when merger discussions began with Plaintiff Cast Art. In a November 1999 letter to Papel’s audit committee, KPMG explained that the audit was planned "to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether caused by error or fraud. Absolute assurance is not attainable . . . ." The letter cautioned that there is a risk that "fraud" and "illegal acts may exist and not be detected by an audit performed in accordance with generally accepted auditing standards," and that "an audit is not designed to detect matters that are immaterial to the financial statements." In September 2000, KPMG delivered completed audits to Papel. KPMG's accompanying opinion letter, addressed to Papel's audit committee, stated that the audits were conducted in accordance with generally accepted auditing standards. The letter concluded by observing that as of December 31, 1999, Papel was not in compliance with certain agreements with its lenders, which raised "substantial doubt" about Papel's "ability to continue as a going concern." Three months later, Cast Art and Papel consummated their merger. Soon, Cast Art had difficulty collecting accounts receivable that it had believed Papel had outstanding prior to the merger. Cast Art investigated and learned that Papel's 1998 and 1999 financial statements were inaccurate and that Papel had accelerated revenue. Cast Art sought to recover from KPMG for the loss of its business. Cast Art alleged that KPMG was negligent; that if KPMG had performed a proper audit, it would have uncovered the fraudulent accounting activity that was taking place at Papel; and that Cast Art would not have proceeded with the merger if it had been alerted to the fraud. KPMG argued, among other things, that Cast Art had not retained KPMG and was not its client, and thus Cast Art's claim was barred by the Accountant Liability Act, N.J.S.A. 2A:53A-25. Upon review, the Supreme Court found that because Cast Art failed to establish that KPMG either "knew at the time of the engagement by the client," or later agreed Cast Art could rely on its work for Papel in proceeding with the merger, Cast Art failed to satisfy the prerequisites of N.J.S.A. 2A:53A-25(b)(2). View "Cast Art Industries, LLC v. KPMG LLP" on Justia Law

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The issue before the court was whether Defendant John Rogers was "exonerated" when his conviction was reversed and his case remanded for trial, or on the day his indictment was dismissed. Defendant sued the Cape May Public Defender's office for malpractice. The date the case was reversed would subject Defendant's claim to a one-year time bar, but a dismissal would not. One year later, his attorney filed a motion for leave to file a late notice of tort claim, which was denied. The trial judge determined that Defendant's claim accrued in 2007, and because he filed his notice more than one year later, the court concluded it lacked jurisdiction to hear his case. The appellate court affirmed, finding that the late notice must be filed within one year after accrual of a claim; "exoneration" (and therefore accrual) occurred in 2007. Upon review, the Supreme Court found that Defendant was not "exonerated" until the indictment was dismissed with prejudice in 2008. His claim was thus not barred by the one year filing limitation. Nevertheless, because the claim was filed ten days beyond the ninety-day limit, the Court remanded the case for further proceedings to determine whether the "extraordinary circumstances" as defined by the governing statute was satisfied. View "Rogers v. Cape May County Office of the Public Defender" on Justia Law