The Court in Furst cautioned against using attorney fee applications as an opportunity “to become mired in a second round of litigation.” Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 24 (2004). This admonition assumes, however, that the attorney certifications will be “sufficiently detailed to allow a trial court to determine the nature of the work performed and by whom, as well as the reasonableness of the hourly rate and the hours expended.” Id. at 25.

An award of counsel fees is calculated by determining the “lodestar,” i.e. a reasonable hourly charge multiplied by the number of hours expended. Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995). In determining the lodestar, the court should compare the hourly rate of the attorney to the rates charged for similar services of attorneys in the community with “comparable skill, experience, and reputation.” Id. at 337. The court must determine reasonable hourly billing rates that are “fair, realistic, and accurate.” Ibid.

The next step in this analysis requires the court to determine the hours that were reasonably expended pursuing the statutory objectives. Furst, supra, 182 N.J. at 22. Once the reasonable number of hours have been ascertained, the court should reduce the lodestar if the prevailing party achieved modest success in relation to the relief sought. Id. at 23. In going about this task, however, there need not be a direct proportionality between the fee and the damages recovered. Ibid. Finally, when the attorney has been retained on a contingency fee basis, the trial court may determine whether to enhance the fee, giving consideration to the results achieved, the risks involved, and the relative likelihood of success for the undertaking. Ibid.

Attorney fees should only be awarded for work done on successful claims. Counsel has the responsibility of justifying the fees requested by connecting the hours utilized to the claims that were successfully prosecuted.

RPC 1.5(a) sets forth the factors necessary to determine whether an attorney fee is reasonable:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; [and]
(8) whether the fee is fixed or contingent.

Rule 4:42-9(b) requires that an attorney submit an affidavit of service addressing the factors listed in RPC 1.5(a).

The personal opinion of a trial judge predicated solely on his or her own professional experiences does not satisfy the analysis required by the Court under Rendine to determine a reasonable hourly rate. Under Rendine, “a reasonable hourly rate is to be calculated according to the prevailing market rates in the relevant community.” Rendine, supra, 141 N.J. at 337.

Once the court ascertains the “prevailing market rates in the community” it can then “assess the experience and skill of the prevailing party’s attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Ibid.

The Court in Perdue v. Kenny A., ____ U.S. ____, 130 S. Ct. 1662, 1669, 176 L. Ed. 2d 494, 501-02 (2010), compiled what it characterized as “six important rules” in determining an award of counsel fees to prevailing parties in fee-shifting cases:

First, a reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case . . .

Second, the lodestar method yields a fee that is presumptively sufficient to achieve this objective. Indeed, we have said that the presumption is a strong one.

Third, although we have never sustained an enhancement of a lodestar amount for performance, we have repeatedly said that enhancements may be awarded in rare and exceptional circumstances.

Fourth, . . . the novelty and complexity of a case generally may not be used as a ground for an enhancement because these factors presumably are fully reflected in the number of billable hours recorded by counsel. We have also held that the quality of an attorney’s performance generally should not be used to adjust the lodestar because considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate.

Fifth, the burden of proving that an enhancement is necessary must be borne by the fee applicant.

Finally, a fee applicant seeking an enhancement must produce specific evidence that supports the award. This requirement is essential if the lodestar method is to realize one of its chief virtues, i.e., providing a calculation that is objective and capable of being reviewed on appeal.

[Purdue, supra, ___ U.S. at ___, 130 S. Ct. at 1672-73, 176 L. Ed. 2d at 505-06.]

For additional guidance, see:

ALLIANCE FOR DISABLED IN ACTION, INC. v. RENAISSANCE ENTERPRISES, INC. (App. Div.; A-1573-08T2, A-1456-08T2; July 30, 2010) (We are not convinced the court’s $100 per hour adjustment made to Popiel’s assigned hourly rate and its conclusion that an hourly rate of $350 was fair and realistic for the overall work performed on the case was unreasonable and a clear abuse of discretion in light of the information Popiel provided, his experience and skill, and the relevant market.)

D’Agostino v. Maldonado (Chan. Div., BER-C-84-09, Koblitz, P.J. Ch., June 30, 2010) (In this case, the hourly rates charged by plaintiff’s counsel (the highest being $275 per hour) are reasonable in comparison to fees customarily charged in Bergen County.)

Crespo v. City of Newark (App. Div.; A-5526-08T3; May 4, 2010) (In our view, the award of fees at a rate of $275 per hour was reasonable.)

KVL AUDIO VISUAL SERVICES, INC. v. Hackworth (App. Div.; A-6263-07T2; January 15, 2010) (Judge Goldman also considered the rates for the Hotel’s counsel, which ranged from $325 per hour to $250 per hour. The judge reduced those rates to a “blended rate” of $225 per hour.)

A Nationwide Sampling Of Law Firm Billing Rates, published by the National Law Journal, December 8, 2008

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Attorney fee awards are based in part on the hourly rate of the attorney, compated to the rates charged for similar services of attorneys in the community with comparable skill, experience, and reputation originally appeared on NJ Family Issues on September 1, 2010.

Section 2 of the Federal Arbitration Act (FAA), 9 U.S.C.A. § 2, provides that:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

[9 U.S.C.A. § 2.]

Under this section, the FAA preempts any state law purporting to invalidate an arbitration agreement “involving interstate commerce.” Young v. Prudential Ins. Co. of Am., 297 N.J. Super. 605, 616 (App. Div.), certif. denied, 149 N.J. 408 (1997). Section 1 of the FAA further defines “commerce” to include “commerce among the several States.” 9 U.S.C.A. § 1.

The United States Supreme Court has interpreted the term “involving commerce” to be the “functional equivalent of the . . . term ‘affecting commerce[,]‘ . . . provid[ing] for the enforcement of arbitration agreements within the full reach of the Commerce Clause.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S. Ct. 2037, 2039, 156 L. Ed. 2d 46, 51 (2003).; see also Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 574 (App. Div. 2007) (explaining that contracts involving commerce should be broadly construed to extend the FAA’s application to the limits of Congress’ Commerce Clause power).

The Court in Citizens Bank established that “the FAA encompasses a wider range of transactions than those actually . . . within the flow of interstate commerce.” Citizens Bank, supra, 539 U.S. at 56, 123 S. Ct. at 2040, 156 L. Ed. 2d at 51. Pursuant to Congress’ Commerce Clause power, the FAA will reach transactions “in individual cases without showing any specific effect upon interstate commerce if in the aggregate the economic activity in question would represent a general practice subject to federal control.” Ibid.

In 1976 the New Jersey Legislature passed the “Nursing Home Responsibilities and Rights of Residents” act (the Act), N.J.S.A. 30:13-1 to -17, in an effort “to ameliorate the harsh conditions of the elderly in nursing homes[.]” In re Conroy, 98 N.J. 321, 377 (1985).

The Act imposes certain responsibilities on nursing homes, N.J.S.A. 30:13-3, and declares the “[r]ights of nursing home residents,” N.J.S.A. 30:13-5. These rights include a right to “considerate and respectful care that recognizes the dignity and individuality of the resident,” and a right “[n]ot [to] be deprived of any constitutional, civil[,] or legal right solely by reason of admission to a nursing home.” N.J.S.A. 30:13-5 (j), (m).

N.J.S.A. 30:13-8 creates a private cause of action for damages for “[a]ny person or resident whose rights . . . are violated [under the Act] . . . against any person committing such violation.” N.J.S.A. 30:13-8a. Regulations promulgated under the Act create corresponding standards for assisted living residences, comprehensive personal care homes, or assisted living programs. N.J.A.C. 8:36-1.1 to -23.

In 2003, the Legislature amended the Act to include the following provision:

[a]ny provision or clause waiving or limiting the right to sue for negligence or malpractice in any admission agreement or contract between a patient and a nursing home or assisted living facility licensed by the Department of Health and Senior Services pursuant to the provisions of P.L. 1971, c. 136 (C. 26:2H-1 et seq.), whether executed prior to, on or after the effective date of this act, is hereby declared to be void as against public policy and wholly unenforceable, and shall not constitute a defense in any action, suit or proceeding.

[N.J.S.A. 30:13-8.1.]

Under § 2 of the FAA, arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C.A. § 2. The FAA thus preempts any state law or regulation that seeks to preclude the enforceability of an arbitration provision on grounds other than those which “exist at law or in equity for the revocation of any contract.” 9 U.S.C.A. § 2; see also Martindale v. Sandvik, Inc., 173 N.J. 76, 85 (2002).

Our State’s prohibition of arbitration agreements in nursing home contracts, designed to protect the elderly, is thus irreconcilable with our national policy favoring arbitration as a forum for dispute resolution. Under our federal system of government, national policy prevails. Therefore, the FAA’s clear authorization nullifies the specific prohibition of arbitration provisions in nursing home or assisted living facilities’ contracts contained in N.J.S.A. 30:13-8.1.

However, it is now well-settled that general “contract [law] defenses, such as fraud, duress, and unconscionability may be invoked to invalidate an arbitration agreement without contravening § 2″ of the FAA. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S. Ct. 1652, 1656, 134 L. Ed. 2d 902, 909 (1996).

Our Supreme Court also recognized this general principle in Muhammad, supra, 189 N.J. at 12. Thus, even though the FAA preempts the specific anti-arbitration provision in N.J.S.A. 30:13-8.1, the trial court may hold that the arbitration provisions in a residency agreements is unenforceable under the doctrine of unconscionability.

As explained by the Court in Muhammad, procedural unconscionability involves a “variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.” Muhammad, supra, 189 N.J. at 15.

Moreover, “adhesion contracts invariably evidence some characteristics of procedural unconscionability.” Id. at 16. A contract of adhesion “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart, supra, 127 N.J. at 353.

As noted by the Court in Rudbart, and reaffirmed in Muhammad, however, the determination that a contract is one of adhesion represents only the first step in the analysis “into whether a contract, or any specific term therein, should be deemed unenforceable based on policy considerations.” Muhammad, supra, 189 N.J. at 15.

To determine substantive unconscionability, we must next look to and apply the four factors set forth by the Court in Rudbart: “[1] the subject matter of the contract, [2] the parties’ relative bargaining positions, [3] the degree of economic compulsion motivating the ‘adhering’ party, and [4] the public interests affected by the contract.” Rudbart, supra, 127 N.J. at 356.

Although the FAA preempts that portion of the Act which renders unenforceable arbitration provisions in residency agreements for nursing home and assisted living facilities, the other sections of the Act which protect the elderly and infirm remain legally viable.

In passing these laws, the Legislature recognized the need to protect a discrete class of citizens who, by virtue of their age and infirmity, are particularly vulnerable to sharp commercial practices, especially in the area of health care, housing, and end-of-life decisions.

The fourth prong under Rudbart concerns the public interests affected by the contract. As the Court noted in Muhammad, supra, this is “the most important [factor] to the present analysis [because it] considers the public interests affected by the contract.” 189 N.J. at 19.

As the Court did in Muhammad, the remedy here is to enforce our federal policy in favor of arbitration, while excising the unconscionable restrictions that we have concluded are unenforceable under N.J.S.A. 30:13-8.1.

See related Blog Post, published in the Law Office of Donald D. Vanarelli Blog

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The FAA’s clear authorization nullifies the specific prohibition of arbitration provisions in nursing home or assisted living facilities’ contracts originally appeared on NJ Family Issues on August 10, 2010.

N.J.R.E. 404(b) provides in relevant part:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

“Ordinarily, the admissibility of other-crime evidence is left to the trial court’s discretion, and its decision is reviewed under an abuse of discretion standard.” State v. Darby, 174 N.J. 509, 518 (2002). However, when the trial court’s ruling is on a question of law, the standard of review is plenary. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

N.J.R.E. 404(b) “seeks to guard a defendant’s right to a fair trial by avoiding the danger that a jury might convict the accused because the jurors perceive him to be a ‘bad person.’” State v. Ramseur, 106 N.J. 123, 265 (1987). “There is widespread agreement that other-crime evidence has a unique tendency to turn a jury against the defendant.” State v. Stevens, 115 N.J. 289, 302 (1989).

In New Jersey state courts, the rule is one of “exclusion” rather than “inclusion” and should be used to exclude evidence of other crimes, civil wrongs, or acts when such evidence is “offered solely to establish the forbidden inference of propensity or predisposition.” State v. Nance, 148 N.J. 376, 386 (1997).

The examples set forth in the rule concerning the permissible uses of other-crimes evidence “are not intended to be exclusive.” Id. at 388 (quoting Stevens, supra, 115 N.J. at 299).

A four-part test for determining whether other-crimes evidence is admissible was established in State v. Cofield, 127 N.J. 328, 338 (1992), and State v. Marrero, 148 N.J. 469, 483 (1997). To be admitted: 1) evidence of the other crime or act “must be admissible as relevant to a material issue”; 2) “[i]t must be similar in kind and reasonably close in time to the offense charged”; 3) “[t]he evidence of the other crime or act must be clear and convincing”; and 4) “[t]he probative value must not be outweighed by its apparent prejudice.” Cofield, supra, 127 N.J. at 338. This test was recently re-confirmed in State v. P.S., ___ N.J. ___, ___ (2010) (slip op. at 39-40).

Other-crimes evidence can be admitted to prove any fact in issue, but the issue must be genuine and the other-crime evidence necessary for its proof. Stevens, supra, 115 N.J. at 301. Where other-crime evidence tends to make the existence of a material fact reasonably likely, it is admissible subject to the “probative/prejudice” balancing under N.J.R.E. 403. Marerro, supra, 148 N.J. at 482.

Furthermore, in appropriate contexts, the Supreme Court has declined to apply the Cofield test strictly to determine the admissibility of relevant evidence. For example, the Court has acknowledged that the second part of the test is not expressly stated in the language of the rule and “need not receive universal application in Rule 404(b) disputes.” State v. Williams, 190 N.J. 114, 131 (2007); see also Hill v. N.J. Dep’t of Corr., 342 N.J. Super. 273, 304 (App. Div. 2001) (second part of Cofield test not applicable to other crimes or wrongs evidence relevant to motive), certif. denied, 171 N.J. 338 (2002). The Court has also rejected the argument that uncorroborated testimony by a cooperating informant or codefendant cannot satisfy the third part of the Cofield test, that the other crimes or acts be proven by clear and convincing evidence. State v. Hernandez, 170 N.J. 106, 126-27 (2001).

In the context of an abuse or neglect case, the court has previously said that N.J.R.E. 404(b) and the Cofield test are applicable to historical evidence of similar conduct. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 181 (App. Div. 2005). However, in civil proceedings for the protection of a child, a parent or guardian’s past conduct can be relevant and admissible in determining risk of harm to the child.

N.J.S.A. 9:6-8.46a states that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent or guardian.” Thus, the statute itself provides for admissibility of evidence about other children. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007); Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002).

“Predictions as to probable future conduct can only be based upon past performance,” and “[e]vidence of parents’ fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care given to other children in their custody.” J. v. M., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978); see also State v. Elmore, 205 N.J. Super. 373, 384 (App. Div. 1985) (“[P]rior episodes of child abuse unconnected with cause of an infant’s death were admissible under Evid. R. 55 as proof of intent or absence of mistake or accident.”). The statute, N.J.S.A. 9:6-8.46a, and the cases cited make no distinction between children in the current relationship and children of a previous relationship.

A history of violence is also made expressly admissible by statute in domestic violence cases, albeit within the same relationship. The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (Domestic Violence Act), explicitly provides that the history of abuse in the same relationship is admissible to prove the current domestic violence alleged. In fact, in a domestic violence case, the court is required to take into consideration the prior history of domestic violence between the parties. N.J.S.A. 2C:25-29a(1); Cesare v. Cesare, 154 N.J. 394, 401-02 (1998); H.E.S. v. J.C.S., 175 N.J. 309, 319 (2003).

In Cesare, the Court recognized the “reality that domestic violence is ordinarily more than an isolated aberrant act,” and found that “[b]ecause a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties” and could “consider evidence of a defendant’s prior abusive acts regardless of whether those acts have been the subject of a domestic violence adjudication.” 154 N.J. at 405.

Thus, the statutes themselves provide that other acts of abuse or neglect and of domestic violence, at least within the same relationship, are relevant and, indeed, must be considered.

Where expert testimony in an abuse or neglect case provided support for a finding that defendant’s prior acts of domestic violence show a disposition to commit such violence, the court should admit that evidence in assessing risk of harm to the children. However, the trial judge may determine under N.J.R.E. 403 that particular evidence should be excluded because its probative value is substantially outweighed by undue prejudice, confusion of the issues, delay, waste of time, or needless presentation of cumulative evidence.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Where other-crime evidence tends to make the existence of a material fact reasonably likely, it is admissible subject to the probative/prejudice balancing originally appeared on NJ Family Issues on August 5, 2010.

N.J.S.A. 9:6-8.21c(4), in relevant part, defines an “abused or neglected child” as:

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his or her parent or guardian to exercise a minimum degree of care: . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.

[N.J.S.A. 9:6-8.21c(4).]

DYFS must prove that a child was abused or neglected by a preponderance of the evidence. N.J.S.A. 9:6-8.46b; N.S., supra, 412 N.J. Super. at 615.

In G.S. v. Department of Human Services, 157 N.J. 161 (1999), the Court reviewed the meaning of the quoted statutory language. It held the statute did not require that the parent intended to harm the child. Id. at 176. It held that “the phrase ‘minimum degree of care’ refers to conduct that is grossly or wantonly negligent, but not necessarily intentional.” Id. at 178.

Grossly or wantonly negligent conduct would not satisfy the elements necessary to prove domestic violence under the Domestic Violence Act. That law requires proof of a specific predicate act of domestic violence from among the fourteen offenses within the Code of Criminal Justice listed in the statute. N.J.S.A. 2C:25-19a; see Cesare, supra, 154 N.J. at 400-01. The listed predicate offenses require purposeful, knowing, or reckless conduct.

The act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs. Likewise, exposure of children to a coercive control relationship does not by itself prove abuse or neglect. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-26 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

“Children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.” N.J.S.A. 2C:25-18.

“[A] psychiatric disability can render a parent incapable of caring for his or her children.” I.Y.A., supra, 400 N.J. Super. at 94. “That the parents may be morally blameless is not sufficient to tip the scales in their favor.” N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 436, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

In this case, as in G.S., supra, 157 N.J. at 181, defendant-parents failed “to exercise a minimum degree of care” in that, although “aware of the dangers inherent in a situation[,]” namely, their abusive relationship and serious psychological disabilities, they “recklessly create[d] a risk of serious injury” to their children by failing to protect the children from harm and failing to acknowledge and treat their disabilities.

See related Squidoo post: The Other Face Of Domestic Violence.

See related “back story”, NJ court: Nazi-naming parents shouldn’t get kids, by BETH DeFALCO, an Associated Press Writer.

See also: State removes Hunterdon County child named Hitler from home, published by The Associated Press.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

The act of allowing a child to witness domestic violence does not equate to abuse or neglect of the child in the absence of additional proofs originally appeared on NJ Family Issues on August 5, 2010.

N.J.S.A. 30:4C-15.7 to 15.11, otherwise known as the New Jersey Safe Haven Infant Protection Act, ^[1] became law on August 7, 2000. The three main principles behind Safe Haven are safety for the child, anonymity, and immunity from prosecution for the biological parents.

N.J.S.A. 30:4C-15.5 to 15.11 states that a parent may deliver a child to, or arrange for someone to deliver a child to, a State, county, or local police station, or to “the emergency department of a licensed general hospital in this State.” The parent or person delivering the child may remain completely anonymous, although they may be given the opportunity to fill out a questionnaire regarding medical information that may be helpful, and are immune from any criminal liability relating to the abandonment of a child in this specific manner. N.J.S.A. 30:4C-15.8 further provides that the Division shall not be required to reunify a child surrendered under N.J.S.A. 30:4C-15.7 with her biological parents, search for relatives of the child for placement purposes, or to implement any other placement requirements that give preference to relatives for placement of the child.

The Division of Youth and Family Services (“the Division”) may file a petition to terminate the parental rights of the parents under N.J.S.A. 30:4C-15.1(b), which states,

The Division shall initiate a petition to terminate parental rights on the grounds that ‘the parent has abandoned the child’ pursuant to subsection (e) of section 15 of P.L.1951, c.138 (N.J.S.A. 30:4C-15) if the following standards are met: … (3) where the parent voluntarily delivered the child to and left the child at, or voluntarily arranged for another person to deliver the child to and leave the child at a State, county or municipal police station or at an emergency department of a licensed general hospital in this State when the child is or appears to be no more than 30 days old, without expressing an intent to return for the child, as provided in section 4 of P.L. 2000, c. 58 (N.J.S.A. 30:4C-15.7), the division shall file for termination of parental rights no later than 21 days after the day the division assumed care, custody and control of the child.

By requiring a filing to terminate parental rights within twenty-one days of obtaining custody, the statutory scheme contemplates an accelerated process towards a permanent placement and adoption for the child.

Under the Safe Haven statutory scheme the Division is excused from making any efforts to reunify with the parents, find the mother, search for family members for placement, or provide any services. However, the Division has an obligation to search any reports for missing children to ensure that the child has not been reported missing. N.J.S.A. 30:4C-15.7(c). Although the statute provides no guidance in addressing the father’s rights, the Division has an obligation to investigate any information that may lead to the identity of the father and provide notice to the father if the information is available.

The Safe Haven statute is clear in its requirements for Safe Haven Protection. Under subsection (b), the child must be or appear to be no more than thirty days old, be left at the “emergency department of a licensed general hospital of this State,” and the parent must not express a desire to return for the child. N.J.S.A. 30:4C-15.7(b).

The New Jersey Legislature, in passing Safe Haven, intended to provide the benefits of safety, anonymity, and immunity from prosecution in circumstances where the mother delivers the baby in a hospital maternity ward, then clearly and unambiguously states her desire to surrender that infant anonymously and the other Safe Haven statutory requirements are met.

As to the father’s rights, N.J.S.A. 9:2-15 states that “[n]o surrender of custody by, nor termination of the parental rights of, one parent shall affect the rights of the other parent; nor may one parent act as the agent or representative of the other parent in the surrender of custody or termination of parental rights.” However, N.J.S.A. 9:3-45(d) indicates that no notice is required of termination of parental rights or adoption proceedings “[i]n any case where, within 120 days of the birth of the child or prior to the date of the preliminary hearing, whichever occurs first, the identity of a birth parent cannot be determined or where the known parent of a child is unable or refuses to identify the other parent, and the court is unable from the other information before the court to identify the other parent.”

N.J.S.A. 9:3-45(b)(6) provides that notice to a potential father of adoption proceedings is not required where the father has not acknowledged paternity within 120 days of the child’s birth. Most notably, N.J.S.A. 30:4C-17(c) states, “[i]n any case where the identity of an absent parent cannot be determined or the known parent of a child is unable or refuses to identify the other parent, and the court is unable from the other information before the court to identify the other parent, service on that parent shall be waived by the court.”

Consistent with N.J.S.A. 9:3-45(d) and N.J.S.A. 9:3-45(b)(6), courts should wait the stated 120 day period before signing an order for termination of parental rights in these cases.

In Safe Haven cases, where the Division has information regarding the father of the surrendered child and he was not involved in the surrender of the child, the Division is required to serve him with notice of the proceedings.

Safety, anonymity, and legal immunity are the cornerstones of Safe Haven, providing an uncomplicated, safe way to surrender an unwanted to child that could otherwise be left in dangerous circumstances. If the focus is to be on allowing for and encouraging the delivery of safe, healthy infants, mothers giving birth should be encouraged, not discouraged, from seeking medical care to deliver their infant, while being allowed to maintain their anonymity.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

1. NJSafeHaven.org, is a website established by the State pursuant to the mandate of N.J.S.A. 30:4C-15.9 to make information about Safe Haven as widely available to the public as possible.

The New Jersey Safe Haven Infant Protection Act originally appeared on NJ Family Issues on August 5, 2010.

The appointment of a special medical guardian is governed by Rule 4:86-12 which, in addition to stating the standard to be applied by the court, sets forth that the procedure on such an application “shall conform as nearly as practicable to the requirements of R. 4:86-1 to R. 4:86-6 . . . ”

Rule 4:86-4 sets forth what should be included in a court order for a hearing to determine whether a guardian (or a special medical guardian) shall be appointed. The order shall include the appointment by the court of counsel to represent the alleged incapacitated person, and, if necessary, a guardian ad litem. R. 4:86-4(b); R. 4:86-4(d). These two roles became distinct and separate after the revision of Rule 4:86-4 which was the result of the Court’s ruling in In re M.R., 135 N.J. 155 (1994).

In competency matters, the court-appointed attorney’s role is to prepare a report after interviewing knowledgeable persons and investigating the situation. The attorney represents the alleged incapacitated person pursuant to R.P.C. 1:14(a) as he or she would in any other legal dispute. In re Mason, 305 N.J. Super. 120 (Ch. Div. 1997).

While the attorney must be a zealous advocate, there are limits to his representation when “the decisions [of the alleged incompetent] are patently absurd or pose an undue risk of harm.” Id. at 125 (quoting Supreme Court’s Judiciary-Surrogates Liaison Committee, Guidelines for Court-Appointed Attorneys in Incompetency Matters, 1 (1995)). When such a situation arises, or other special circumstances exist, the court may appoint a guardian ad litem in addition to the court-appointed attorney. R. 4:86-4(d).

The role of the guardian ad litem is to act as “eyes of the court” and further the best interests of the patient, even if those interests may differ from what the alleged incapacitated person wants. In re Mason, supra, at 127.

Rule 4:86-4(b) indicates that the attorney writing the report to the court will advocate the wishes of the patient.

The court can appointed an attorney to act as counsel for the patient at the expense of the hospital. In re Clark, 216 N.J. Super. 497 (App. Div. 1987).

Before appointing a special medical guardian, the court must determine that the patient is unable to consent to medical treatment, no general or natural guardian is available, immediate medical treatment is necessary, and the patient has not designated a health care representative or executed a health care directive. R. 4:86-12.

A patient has capacity to consent to medical treatment if she can reasonably understand her condition, the effect of the proposed treatment, and the risks of both undergoing and refusing the treatment. In re Conroy, 98 N.J. 321, 382 (1985) (citing In re Schiller, 148 N.J. Super. 168, 181 (Ch. Div. 1977)).

New Jersey law recognizes a competent adult’s right to refuse life-saving medical treatment under both the right of privacy under the United States Constitution and the commonlaw right of self-determination. In re Conroy, supra, 98 N.J. at 349 (ruling on the circumstances under which life-sustaining treatment may be withheld from incompetent, institutionalized, elderly patients with severe and permanent mental and physical impairments and a limited life expectancy).

A competent patient is able to choose his course of treatment even if his medical decision may seem irrational or unsupported by medical evidence. ^[1] In re M.R., 135 N.J. 155, 167 (1994). If a patient is unable to understand the consequences of the decision, however, that patient is unable to give informed consent and is therefore incapacitated. In re Conroy, supra, 98 N.J. at 347 (discussing the doctrine of informed consent which mandates that patients have a “clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis” (quoting 310 New Eng. J. Med. 955, 957 (1984))).

The competency required to make medical decisions is comparable to that required to enter into a contract. In re Schiller, supra, 148 N.J. Super. at 180. As such, “[i]t is not necessary to show that a person was incompetent to transact any kind of business, but . . . it is sufficient to show that he was mentally incompetent to deal with the particular contract in issue. . . .” Ibid. (quoting 17 C.J.S. Contracts §133(1)).

The patient’s alleged incapacitation ^[2] must be established by clear and convincing evidence. In re Moorhouse, 250 N.J. Super. 307, 313 (App. Div. 1991) (citing In re Conroy, supra, 98 N.J. at 382).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

1. New Jersey courts have ruled that a patient found to be competent and aware of the consequences of her decision may exercise her right to refuse treatment for any reason, including when treatment violates the tenets of her religion. Further, guardians of incompetent patients must consider the tenets of a patient’s religion when determining the proper course of treatment. In re Hughes, 259 N.J. Super. 193, 200 (App. Div. 1992).
2. In 1997, the New Jersey Legislature amended N.J.S.A. 3B:1-2. The amendment applied to the entire statute and replaced the term “mental incompetent” with “incapacitated person.” L. 1997, c. 379.

Before appointing a special medical guardian, the court must determine that the patient is unable to consent to medical treatment, no general or natural guardian is available, immediate medical treatment is necessary, and the patient has not designated a health care representative or executed a health care directive originally appeared on NJ Family Issues on August 4, 2010.

The right to speak anonymously is protected by the First Amendment and “derives from the principle that to ensure a vibrant marketplace of ideas, some speakers must be allowed to withhold their identities to protect themselves from harassment and persecution.” Matthew Mazzotta, Note, Balancing Act: Finding Consensus on Standards for Unmasking Anonymous Internet Speakers, 51 B.C.L. Rev. 833, 833 (2010). But “[t]he right to speak anonymously is not absolute. Plaintiffs have the right to seek redress for legally cognizable speech and speakers cannot escape liability simply by publishing anonymously.” Id. at 833-34.

The leading case in New Jersey on the issue of whether an Internet service provider can be compelled to reveal the identity of one of its subscribers to a party aggrieved by an anonymous Internet posting is Dendrite Int’l, Inc. v. John Doe, 342 N.J. Super. 134 (App. Div. 2001).

The court set forth the following guidelines for the consideration of applications to discover the identity of those posting anonymous messages on message boards maintained by Internet service providers. The court noted that courts considering such an application “must . . . strik[e] a balance between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiouslynamed defendants.” Id. at 141.

The court outlined the steps to be taken in this process, the first of which is attempting to notify the anonymous poster, id. at 141. The second step is requiring that the plaintiff “set forth the exact statements,” ibid. At that juncture, the trial court must carefully review “[t]he complaint and all information provided . . . to determine whether plaintiff has set forth a prima facie cause of action . . . .” Id. at 141.

It is not sufficient that a plaintiff could defeat a motion for failure to state a cause of action under Rule 4:6-2(e); when presented with such a motion, the court reviews the complaint with liberality and without reference to the plaintiff’s ability to prove the allegations. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165, 183 (2005); Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). Rather, the plaintiff “must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis . . .” before a court may order disclosure of the poster’s identity. Immunomedics, Inc. v. Doe, 342 N.J. Super. 160, 166 (App. Div. 2001) (quoting Dendrite Int’l, Inc., supra, 342 N.J. Super. at 141).

If a plaintiff satisfies those steps, the trial court at that juncture “must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.” Ibid. (quoting Dendrite Int’l, Inc., supra, 342 N.J. Super. at 142). The court intended that these guidelines would be “flexible, non-technical, [and] fact sensitive” and would be applied so “that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet.” Dendrite Int’l, Inc., supra, 342 N.J. Super. at 142

The test for whether a communication is a threat cannot be a subjective one, based on plaintiff’s personal, idiosyncratic reaction. The test for whether a communication should lose the mantle of First Amendment protection must be an objective one, rather than one based upon the personal and individual reaction of the recipient of the communication.

The four required elements of a claim for intentional infliction of emotional distress are well-settled. The Supreme Court set them forth in Buckley v. Trenton Saving Fund Socy, 111 N.J. 355 (1988). First, the plaintiff must prove that the defendant acted either intentionally or recklessly; “[f]or an intentional act to result in liability, the defendant must intend both to do the act and to produce emotional distress.” Id. at 366. Liability may also attach to a reckless act “when the defendant acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow.” Ibid.

The second element of a claim for intentional infliction of emotional distress is conduct by the defendant that is so “extreme and outrageous . . . as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Ibid.

The third required element is proximate cause. Ibid. The defendant’s intentional or reckless conduct must have been the proximate cause of the plaintiff’s emotional distress. Ibid.

The final element of a claim for intentional infliction of emotional distress is distress that is “so severe that no reasonable man could be expected to endure it.” Ibid.

“It is not enough to establish that a party is acutely upset by reason of the incident.” Aly v. Garcia, 333 N.J. Super. 195, 204 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001).

Expressions of anger, without more, are not extreme or outrageous.

One of the factors which must be considered in any application to compel disclosure of the identity of an Internet poster is the necessity for that disclosure. Dendrite, supra, 342 N.J. Super. at 142; Mazzotta, supra, 51 B.C.L. Rev. at 854, noting “if a plaintiff does not need the identifying information to proceed with his or her claim, if the information is available from another source . . . a court should not allow its unmasking power to be used to potentially violate the First Amendment rights of anonymous speakers.”

The court has, on several occasions, questioned whether there is a civil cause of action for damages for harassment. Donato, supra, 374 N.J. Super. at 480 n.2; Aly, supra, 333 N.J. Super. at 203.

In Aly, the court noted the analytical distinction between a civil claim for harassment for which damages were sought and a civil claim for harassment for which injunctive relief was sought. Aly, supra, 333 N.J. Super. at 203. The court noted further that a claim for damages for harassment is “akin” to a claim for damages for intentional infliction of emotional distress. Ibid. In the court’s judgment, it would run counter to the policies expressed by the Court in Buckley, supra, if the court were to permit a claim for harassment to proceed in the face of a conclusion that plaintiff had failed to establish the prima facie elements of a claim for intentional infliction of emotional distress.

See related Blog Post from the Law Office of Donald D. Vanarelli Blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Applications to discover the identity of those posting anonymous messages on message boards maintained by Internet service providers originally appeared on NJ Family Issues on August 3, 2010.

The “history of spoliation in our courts,” was addressed in Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 116 (2008).

The essential principles that have developed over time and that guide courts in evaluating the appropriate method for addressing any particular act of spoliation are:

First, to a great extent the Court’s traditional approach to spoliation begins with identifying the spoliator, because that, in and of itself, will impact on the available and appropriate remedies. Id. at 119-20. For example, if the spoliator was a defendant, courts initially were empowered to permit plaintiff to pursue a separate claim for fraudulent concealment of evidence. See Viviano v. CBS, Inc., 251 N.J. Super. 113, 125-26 (App. Div. 1991), certif. denied, 127 N.J. 565 (1992).

The Court has also concluded that a separate claim may be appropriate if the spoliator is not a party to the litigation, as when an attorney’s recklessness caused the loss of evidence. See Jerista v. Murray, 185 N.J. 175, 203 (2005) (permitting plaintiff to pursue spoliation theory in attorney malpractice claim). But see Hewitt v. Allen Canning Co., 321 N.J. Super. 178, 184-85 (App. Div.) (rejecting defendant’s effort to pursue third-party claim against plaintiff’s attorney who discarded can of spinach claimed to have contained insect), certif. denied, 161 N.J. 335 (1999).

The Copurt has expanded the remedies available to courts dealing with spoliating defendants by permitting the use of discovery sanctions and adverse inferences, see Rosenblit v. Zimmerman, 166 N.J. 391, 401-03, 411 (2001), and has allowed the courts to employ a bifurcated trial technique to address spoliation, see id. at 407-08. The Court has also authorized courts to use more than one such remedy if circumstances warrant it. See Tartaglia, supra, 197 N.J. at 122.

If, on the other hand, the spoliator is a plaintiff, the remedy of a separate cause of action for fraudulent concealment would not necessarily serve any purpose. See Hirsch v. Gen. Motors Corp., 266 N.J. Super. 222, 245 (Law Div. 1993) (noting that goal of “protect[ing] a litigant’s interest [through] a prospective cause of action” does not apply when spoliation interferes with defendant’s ability to defend lawsuit). In that circumstance, courts turned to preclusion of plaintiff’s evidence that had been, or could have been, derived from the spoliated material or item as the appropriate sanction. Id. at 266. That remedy essentially proceeded upon the premise that the plaintiff’s opportunity to evaluate or test the underlying material or item prior to its destruction gave it an unfair advantage that could not be duplicated. Id. at 264.

Second, the Court has observed that selecting the appropriate remedy for spoliation depends in part on the timing of when the act of spoliation is discovered. See Tartaglia, supra, 197 N.J. at 120; Rosenblit, supra, 166 N.J. at 407-08. Spoliation that becomes apparent during discovery or trial often can be addressed effectively through the use of ordinary discovery sanctions, such as preclusion, or through adverse inferences. Rosenblit, supra, 166 N.J. at 401-02. Spoliation that is not discovered until after there has been a verdict in the case in chief, however, will generally result in a “cause of action for the fraudulent concealment [that] will be entirely separate and, depending on the outcome of the original trial, may include both consideration of the substantive counts as well as the further spoliation-based damages.” Tartaglia, supra, 197 N.J. at 121.

Third, although most of the published decisions relating to spoliation focus on the available remedies, selecting the one that is appropriate under the circumstances must be guided by the essential purposes that all of the sanctions are designed to achieve. As the Court has observed, the spoliation sanction serves three goals: “to make whole, as nearly as possible, the litigant whose cause of action has been impaired by the absence of crucial evidence; to punish the wrongdoer; and to deter others from such conduct.” Rosenblit, supra, 166 N.J. at 401. Put another way, the focus in selecting the proper sanction is “evening the playing field,” ibid., or rectifying the prejudice caused by the spoliation so as to “place[] the parties in equipoise,” Hirsch, supra, 266 N.J. Super. at 266. Achieving those sometimes competing goals calls for careful evaluation of the particular facts and circumstances of the litigation, in order that the true impact of the spoliated items can be assessed and an appropriate sanction imposed.

The Court has long recognized the severity of dismissal, observing that because it is “the ultimate sanction[,] . . . [we have] struck a balance by instructing courts to impose [it] ‘only sparingly.’” Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 253 (1982)). That is, “it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party.” Zaccardi, supra, 88 N.J. at 253.

Our Appellate Division has been reluctant to order dismissal as a sanction for spoliation even when the dispute’s principal evidence has been destroyed and even if its loss has impeded the preparation of a defense. See Hirsch, supra, 266 N.J. Super. at 266-67 (denying motion to dismiss; ordering preclusion of expert report and testimony based on expert’s inspection of automobile that was subsequently lost).

The Appellate Division has ordered dismissal of a claim when the more limited, but appropriate, remedy of preclusion would effectively deprive the spoliator of its ability to present needed expert proofs. See Aetna Life & Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 369-70 (App. Div. 1998). Even in that context, however, the court referred to dismissal as “a remedy of last resort.” Id. at 369. The court found it appropriate nonetheless in circumstances in which a party inspected damaged property that was thereafter destroyed, gave no opportunity whatsoever to its adversary to perform an inspection, and in which the inspection itself was the sole basis for its expert report. Id. at 367-69. Although simple preclusion of the expert report was the court’s preferred sanction, that lesser remedy was not workable as a practical matter, because the spoliating party conceded that the natural consequence of preclusion of its expert was that it could not prove its case. In those circumstances, the panel concluded that it had no option but to affirm the trial court’s dismissal order. Id. at 369-70.

Courts faced with spoliation claims should strive to impose a remedy that will serve the ends of justice by creating a level playing field, by ensuring that the consequence of the lost evidence falls on the spoliator rather than on an innocent party, and by using their considerable powers to deter future acts of spoliation.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Courts faced with spoliation claims should strive to impose a remedy that will serve the ends of justice by creating a level playing field, by ensuring that the consequence of the lost evidence falls on the spoliator rather than on an innocent party, and by using their considerable powers to deter future acts of spoliation originally appeared on NJ Family Issues on August 3, 2010.

The presence of a parent during a child’s police interrogation and confession is a “highly significant factor” in the totality of the circumstances analysis contemplated by State v. Presha, 163 N.J. 304 (2000), and, generally, that reassuring presence will assist the juvenile in the exercise of his or her rights.

An attorney does not necessarily have to be present any time that there is perceived clash in the interests of a parent based on a familial relationship with the victim or another involved in the investigation. Even in cases of such apparent clashing interests, a parent may be able to fulfill the role envisioned in Presha. And, in those cases where a parent is truly conflicted, ^[1] another adult –- not necessarily an attorney –- may be able to fulfill the parental assistance role envisioned by Presha.

Moreover, when it is apparent to interrogating officers that a parent has competing and clashing interests in the subject of the interrogation, the police minimally should take steps to ensure that the parent is not allowed to assume the role of interrogator and, further, should strongly consider ceasing the interview when another adult, who is without a conflict of interest, can be made available to the child.

The following criteria is to be applied in determining whether the child’s statements were knowing, intelligent, and voluntary:

The child (1) must be given the opportunity to consult with an adult; (2) that adult must be one who is not only genuinely interested in the welfare of the juvenile but completely independent from and disassociated with the prosecution, e.g., a parent, legal guardian, or attorney representing the juvenile; and (3) the independent interested adult must be informed and be aware of the rights guaranteed to the juvenile.
[State v. Mears, 749 A.2d 600, 604 (Vt. 2000) (quoting In re E.T.C., 449 A.2d 937, 940 (Vt. 1982)).]

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1. Clashing parental interests may be present in situations other than when the parent is related to both the suspect and the victim. A conflict of interest may arise if the parent is a suspect, and also may present itself if the parent has a familial or intimate relationship with another suspect. See generally Hilary B. Farber, The Role of the Parent/Guardian in Juvenile Custodial Interrogations: Friend or Foe?, 41 Am. Crim. L. Rev. 1277, 1293-98 (2004).

An attorney does not necessarily have to be present any time that there is perceived clash in the interests of a parent based on a familial relationship with the victim or another involved in the investigation originally appeared on NJ Family Issues on July 30, 2010.

Discipline for an attorney’s sexual misconduct has ranged from reprimands to disbarment. The most substantial discipline has been imposed on attorneys who have been convicted of serious crimes of a sexual nature, particularly against children. The Court has cautioned that sexual offenses against clients will be dealt with severely. In In re Gallo, 178 N.J. 115 (2003), the respondent attorney entered a guilty plea to fourth-degree charges of criminal sexual contact with three clients and a self-represented litigant, each of whom he assaulted at either his office or a courthouse. The DRB concluded a three-year retroactive suspension was appropriate based on the criminal plea record, but the Court directed that a more comprehensive record be developed before determining the discipline. Thereafter, Gallo consented to disbarment.

Most disciplinary cases are very fact-sensitive. Aside from discipline for the knowing misappropriation of trust funds, for which disbarment almost invariably will be ordered, the Court rarely has established bright-line rules in this area, even in cases of serious, violent criminal conduct. The essential purpose of New Jersey’s system of attorney discipline is to protect the public, not to punish the attorney. The Court declines to declare a bright-line rule of automatic disbarment for attorneys who engage in sexual misconduct. What discipline will be required to protect the public in a given case will turn on a fact-sensitive evaluation of the ethical lapses compared to disciplinary precedent, and consideration of the attorney’s ethical history.

Preying on clients deserves to be dealt with harshly because it goes to the heart of the trust on which the attorney-client relationship is based, but, in this case, the Court held that it would be disproportionate to disbar an attorney for that attorney’s boorish, insensitive and offensive, but hardly criminal, conduct.

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Discipline for an attorney’s sexual misconduct has ranged from reprimands to disbarment originally appeared on NJ Family Issues on July 30, 2010.