NJSBA Family Law Section

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  • 1.  Protective Order/Order for Discovery

    Posted 02-28-2018 01:32 PM

    Folks,

       Please allow me to ask for a "sanity check."

       Can an attorney ask a family court judge for a protective order and order for discovery, under the five-day rule (4:42-1(c)) without a motion?

        I think not.

        But the judge entered the order anyway.

     

    Regards,

    Ed

     

    * * *

    Edward J. Zohn, Attorney at Law

    Zohn & Zohn, LLP; 7 Mount Bethel Road, Warren NJ 07059

    908.791.0312 office; 908.428.7988 direct; 908.660.4866 fax

    "Leges sine moribus vanae" (Laws without morals are useless) - U. of Penna. Motto

    www.zohnlaw.com

     



  • 2.  RE: Protective Order/Order for Discovery

    Posted 02-28-2018 02:28 PM
    At 01:31 PM 2/28/2018, you wrote:
    Folks, Please allow me to ask for a "sanity check." Can an attorney ask a family court judge for a protective order and order for...

    That's what the laws and rules say last time I checked:


    Dear Judge Smith:

    I am in receipt of Mr. Smith's lengthy correspondence regarding the order submitted under the Five Day Rule (R. 4:421).

    There is absolutely no basis to seek to have an order entered pursuant to the Five-Day Rule under the facts at issue here. The Appellate Division has been crystal clear that the only time an order may be entered or even submitted under R. 4:421 is when a decision has been reached by a court following a hearing or a consent placed on the record. "It is, of course, clear that an order should never be either submitted or signed under this rule unless it accurately memorializes court dispositions, is submitted following default, or has all parties' consent endorsed thereon." Pressler & Verniero, Rules Governing the Courts of the State of New Jersey, comment 3 on R. 4:421 (citing City of Jersey City v. Roosevelt Stadium Marina, Inc., 210 N.J.Super. 315 (App. Div. 1986), certif. denied, 110 N.J. 152 (1988). See also Elliott v. Elliott, 97 N.J.Super. 10, 12 (Ch.Div. 1967), holding that the Five Day Rule "was never intended to allow court orders without judicial determinations following court proceedings complying with due process; nor was it intended to apply in other than default situations or cases where authorized consent was not endorsed on the order." citing R. 4:421(a) and R. 4:421(b). It is massively improper to file a document entitled "consent order" which seeks "all communications between [attorney and client]" and ask a court to enter it as an under the Five-Day Rule when there has been neither a court determination that this is appropriate nor that there has been consent. This is simply not what the Five Day Rule is for.

    As the Court may recall, this is the matter where, following a 27 year marriage, an end-run was done around counsel and the parties signed a purported agreement granting two years of alimony at $800 per month to a stay-at-home-parent when the supporting spouse earned in excess of $225,000 per year. Additionally, it transferred residential custody of a child  to a parent who has never acted in this role (leaving the home for work at 6:30 a.m. and returning at 7:30 p.m.) for the child's entire life (etc).

    While I agree this matter could and should be dealt with as a matter of law and the purported agreement declared invalid on the basis of obvious unconscionability, the Court has ordered a plenary hearing and the issue of whether this agreement, which would leave Mr. Johnson on public assistance after two years, was entered into "knowingly" is a factor.

    Mr. Johnson has a high school diploma. The last (part-time) job he held, prior to his stroke, was as a janitor. Ms. Johnson' career has been as an executive assistant earning $200,000 or more per year. My adversary has taken the position that Mr. Johnson mentioning that he is not an attorney and had no idea what he was entitled to receive serves to destroy the most sacrosanct of privileges. During our phone conference, it was my understanding that if Mr. Johnson waived his claims as to when information had been received, then the attempts to violate attorney-client privilege would be rendered moot.

    I am not clear as to how counsel could both respond to a letter setting forth Mr. Johnson stipulations on this issue and claim that no stipulations had been offered. Mr. Johnson agrees to withdraw all claims regarding the timing of his receipt of Ms. Johnson' CIS. Specifically, any claim that Mr. Johnson had not been provided with Ms. Johnson' CIS as of the signing of the purported agreement are withdrawn.

    There was absolutely no basis in the law nor rules to submit an order pursuant to the Five Day Rule. I repeat the request that, if the stipulations do not resolve the issue and there is a continuing request for obviously privileged communication, a telephone case management conference be conducted to clarify the issues.

    Respectfully,



    David Perry Davis, Esq.


    ______________________________________________________________________


    Dear Judge Smith:

    I am in receipt of Mr. Jones's additional lengthy correspondence regarding the order submitted under the Five Day Rule (R. 4:421).

    Counsel's implication that a Five-Day Rule order is appropriate under the facts at issue here is incorrect. Comment 3 to the Rule cannot be taken out of context. As set out in my prior letter, the text of the Rule, along with all the cases interpreting it, are clear that the only time an order may be entered or even submitted under R. 4:421 is when a decision has been reached by a court following a hearing or a consent placed on the record and "it is, of course, clear that an order should never be either submitted or signed under this rule unless it accurately memorializes court dispositions, is submitted following default, or has all parties' consent endorsed thereon." Here, there was neither a court disposition nor a consent involved and a Five Day Rule order is thus inappropriate.

    The Appellate Division has held that an order that would potentially result in an improper violation of attorney-client privilege, it is properly reviewed on an interlocutory basis as the improper violation of privilege constitutes irreparable harm as a matter of law. In the event the court intends to sign an order submitted under the Five Day Rule when there was neither a court determination nor consent, it is respectfully requested that the court stay the entry of the order so counsel may seek review of the order. Please indicate on the order that a stay was requested, along with the court's determination on that issue.

    I maintain that the stipulations presented remove any justification for the extreme relief of the piercing of attorney-client privilege. The issue of whether Mr. Johnson consulted with counsel as to the terms of the purported agreement is binary - either he did or he did not - and counsel already has Mr. Johnson sworn deposition testimony on this issue.

    I repeat the request that, if the stipulations do not resolve the issue and there is a continuing request for obviously privileged communication, a telephone case management conference be conducted to clarify the issues.
    Respectfully,



    David Perry Davis, Esq.

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