November 2004, No.4

November 2004, Vol. II, No. 4

We're Back. After a down cycle of too much work, getting married, and not enough time to write, we are back and hope that you enjoy this update!

Law Firm's Partnership Agreement Upheld. Following this update's advice from the November 2003 issue, the Supreme Court ruled in favor of Riker Danzig in Borteck v. Riker, Danzig, Scherer, Hyland & Perretti, 179 N.J. 246 (2004). The Supreme Court held that Riker Danzig's partnership agreement's prohibition on paying retirement benefits to partners who withdraw to join another law firm does not violate RPC 5.6, which prevents attorneys from entering into agreements that restrict the right to practice. The Supreme Court found that the agreement operates as a retirement plan, and therefore qualifies as an exception to RPC 5.6. Thus, Riker Danzig was successful in denying Borteck's attempt to triple dip – take the $$, go for the clients, and then compete.

How Do Juries Apportion Liability When a Party Files for Bankruptcy? The Supreme Court recently ruled that in a case with multiple defendants, the jury must consider a bankrupt defendant's portion of liability, if any exists. See Brodsky v. Grinnel Haulers, Inc., 181 N.J. 102 (2004). In Brodsky, after a truck struck plaintiffs' car, plaintiffs were on the side of the road when the party who declared bankruptcy ran into them with his car. The other interesting issue raised in Brodsky is whether or not the court should instruct the jury on the ultimate outcome, i.e., if the solvent party is 60% or more at fault, plaintiffs can obtain the entire recovery from the solvent party. The Supreme Court determined that the jury's function is to determine the percentage of liability of each defendant without any influence of equity based on the recovery. Once the jury determines the percentages of liability, the court then molds the verdict to determine how much money each defendant owes the plaintiff based on the percentages of fault. The Supreme Court concluded that any contrary ruling would be prejudicial to the defendants. The Supreme Court should be lauded for rendering two rulings that keep the playing field level for both parties.

Brodsky Part II: Can an Attorney Suggest to the Jury the Percentages of Fault for the Defendants? For those of you saying that this question is easy, think again because the Supreme Court reversed the Appellate Division's ruling and held that trial attorneys are permitted to suggest percentages of fault for parties in their closing arguments. Although some of you may find this decision troubling, the recommended percentages do not invade a jury's province, but act as a guide based on the evidence. Practice tip: trial lawyers in comparative negligence cases should be prepared to argue percentages based on the facts. If you do not, your adversary may use them, and you may be at a disadvantage.

Are Municipal Police Department and Police Departments "Public Accommodations" under the LAD? For those of you who think this is a stupid question, think again. In the case with the most difficult names to spell and pronounce, Ptaszynski v. Uwaneme, 371 N.J. Super. 333 (App. Div. 2004), the Appellate Division concluded that individual officers and a municipal police department are, in fact, places of public accommodation to support a LAD claim. In reaching its conclusion, the Appellate Division stated that the LAD is to be construed liberally, and that "[a]s a public entity, by its very nature a police is force is a place of public accommodation." Id. at 347. In Ptaszynski, Woodridge police officers responded to a call of domestic violence, and the homeowners alleged that the police officers used excessive force and discriminated against them because of their race. Although this decision appears to be an extreme extension of the LAD, the Appellate Division correctly decided this case when we consider that the courts have determined that a wide variety of institutions are "public accommodations." For example, courts have found that eating clubs at Princeton and the Little League are public accommodations.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil-related story, please contact me at 201-918-3560, (f) (201) 845-5973, or e-mail mjepstein@epsteinbeirne.com.

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