Two members of the New Jersey State Bar Association (NJSBA) will argue before the state Supreme Court and the Appellate Division in two cases as amicus curiae.
Delaney v. Dickey
The NJSBA will present argument next week in Delaney v. Dickey, urging reversal of the appellate court’s ruling that RPC 1.4(c) requires attorneys to actually attach a referenced document in a retainer agreement or explain the terms included in that document in order for a retainer agreement to be valid. The NJSBA argued that the Appellate Division engaged in “improper rulemaking, a function that is exclusively reserved for [the Supreme Court] following committee consideration and public commentary.”
In the underlying matter, Brian Delaney was a businessman who frequently retained lawyers to assist him in multi-million-dollar business transactions. He retained Sills Cummis to represent him in two lawsuits and signed a three-page retainer agreement in connection with those matters. The agreement contained an arbitration clause just above the signature line referencing the rules of JAMS arbitration – a 32-page document that was not included within the agreement – as dictating the terms of arbitration. The Chancery Division ruled that the fee agreement’s arbitration clause was enforceable, that it encompassed Sills’ fee claim and the plaintiff’s malpractice claim, and that both claims were subject to JAMS arbitration. The Appellate Division vacated the trial court’s order in a published decision and remanded the matter back to the lower court.
NJSBA Solo & Small Firm Section Chair William E. Denver is slated to present oral argument before the Supreme Court that the Appellate Division’s ruling creates new ethical obligations for attorney-client communications by “governing the fundamental mechanics of how an attorney may enter into a retainer agreement with their prospective client.” The brief was authored by former NJSBA Trustee Andrea J. Sullivan and Kersten Kortbawi.
Sullivan v. Max Spann Real Estate
The NJSBA will once again defend the mandatory attorney review clause in residential real estate contracts in a matter, but this time within the context of real estate auctions. In the matter of Sullivan v. Max Spann Real Estate & Auction Co., the NJSBA participated as amicus to defend the inclusion of such language in this context because the clause protects the public interest by making the contract subject to prompt attorney review if the seller so desires. The inclusion of the clause in all residential real estate contracts arose as part of a settlement agreement approved by the Supreme Court, of which the NJSBA was a party.
In Sullivan, the trial court ruled that such clause was not mandated where such information was available to potential parties in advance. The bidder registration form in the Sullivan transaction stated that the auction sale was “not subject to an attorney review period,” and that the prospective bidder agreed to “review the contract of the sale prepared by the seller’s counsel prior to the auction.” The bidder spoke limited English and claimed to be pressured into bidding on the property. The contract for sale was apparently prepared by a salesperson on a pre-printed template completed by the bidder, who was ultimately unable to obtain a mortgage and was declared in breach of contract.
NJSBA member Brad Batcha will argue the matter on behalf of the NJSBA on Oct. 1, urging a reversal of the trial court decision. The brief was authored by Batcha, Alexander Fineberg, Martin Liberman and Lee B. Roth.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.