January 2009, No. 1

January 2009, VOL VII, No. 1

When Does the Statute of Limitations Accrue in an LAD Case Based on Hostile Work Environment? We all know that the statute of limitations for these claims is two years, but what about "accrual" of the two-year period? Not as easy as you think. Consider these facts: employee works for employer for twenty years, and he claims that co-employees harassed him because of his physical disorders. His psychiatrist notified the employer in writing of the harassment. The employee left the workplace on January 11, 2002, used his accrued vacation time, and never returned. He was terminated on July 19, 2002 after his vacation days expired. So, is the accrual when terminated or when left work? For those of you who said terminated, you are wrong. The date of accrual is the date of the last act, which here is last day worked. See Toto v. Princeton Township, 2009 N.J. Super. LEXIS 11 (App. Div. 2009). Here, the plaintiff filed more than two years after his last day of work, and the Appellate Division barred his claim. Moral of the story - watch the deadlines and file earlier than later when in doubt.

Can You Be a Super-lawyer without violating the Advertising Rules? Yes. According to the Supremes, Super Lawyers and Best Lawyers in America do not violate RPC 7.1(a)(3), advertisements that are inherently comparative, or RPC 7.1(a)(2), likely to create an unjustified expectation. See In re Opinion 39 of the Comm. on Atty. Adv., 2008 N.J. LEXIS 1799 (2008). Candidly, I never really understood the issue with these two publications, and I believe that the Supremes got this right.

What Should the Punishment Be for a Lawyer Who Pays a "Runner?" Depends on who you ask. The DRB recommended a year, and the Supremes disagreed and gave only a three-month suspension to a lawyer who paid a non-lawyer employee one-third of the fee for any case that he steered to the firm. See In re Fusco. For those of you saying, what Civil Practice Update All the Law That's Fit to Print by Michael J. Epstein Vol. VII, No. 1 January 2009 were they thinking, join the club. The use of runners is a major violation of the RPCs, and every lawyer knows it. In this case, the senior partner was cognizant of what was happening, and for some unknown reason, the Supremes decided to take it easy on Mr. Fusco who paid his employee $700,000 for the referral of cases. This case provided the Supremes with an opportunity to punish Mr. Fusco for his blatant disregard of the RPCs and to send a message to other attorneys that using runners will lead to lengthy suspensions.

What is the Appropriate Discipline for a Lawyer Who Has a Paralegal Appear in Court? For those of you saying that this is a big no-no, join the club. In any event, the DRB believes that the sanction should be a censure, which is one step up from a reprimand. In In re Pomper, Somerset attorney Bruce Pomper had his paralegal appear in Somerset County, Family Part to represent a client in a child custody matter. Such an appearance violates RPC 5.5(a)(2), assisting the unauthorized practice of law, and 8.4(a), violating ethics rules or inducing another person to violate the rules. The DRB did not vote for a suspension because Pomper did not designate the paralegal as an attorney and because there was confusion as to what the paralegal was supposed to do at the courthouse. This case is a close call for a suspension, and as most of you know, I lean towards stricter penalties. Without reading the testimony from the hearing, it is hard to say, but lawyers should not send paralegals to court for any matter regardless of whether an attorney is required to appear. Thus, I probably would have voted for a three-month suspension especially because Pomper had two, minor ethics violations in the past.

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@theepsteinlawfirm.com.

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