August 2010, No. 1

Does An Owner-Occupied Condominium Association Have A Duty To Maintain An Abutting Sidewalk?

Hmmm, for those of you who said yes because the association is akin to a commercial landowner, nice try, but you are wrong. In Luchejko v. City of Hoboken, 2010 N.J. Super. LEXIS 127 (App. Div. 2010), the plaintiff slipped and fell on ice on a public sidewalk abutting a 104-unit condominium complex.

The Appellate Division found that the critical aspect of determining whether a property is commercial is the nature of the ownership and the capacity to generate income. Ultimately, the panel ruled that the property is not commercial because it is predominantly owner-occupied and because there was limited, if any, ability to pass along the cost of liability.

This decision narrowly construes Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981), which found that an apartment complex was commercial. This decision somewhat changes sidewalk law, and practitioners handling these cases must be aware of this decision. Don't be surprised to see this case before the Supremes.

Ethics Test: What Is The Penalty For An Attorney Who Seeks To Exchange Legal Services For Sexual Favors?

For those of you who said disbarred, you would be wrong. In In re David Witherspoon, d-157-08, Mr. Witherspoon was accused of making inappropriate sexual comments and requesting sex from at least four clients, and the Supremes determined that the record lacked "the severity of the sexually-unethical behavior that we have previously considered to be worth of disbarment."

Instead, the majority imposed only a one-year suspension. For those of you saying what is wrong with this story, take a look at some of the facts: (1) Mr. Witherspoon was accused of offering to reduce his fee in four bankruptcy matters in exchange for sexual favors; (2) he asked a woman to meet him in a hotel room in exchange for him forgiving a $300 debt owed by the woman's father; (3) he asked a client to lift up her shirt if she wanted him to do certain legal work; (4) he asked another client if he could watch her and her lesbian partner having sex. These four examples more than show that this attorney should have been disbarred.

Ethics Update: Amendment to RPC 7.3.

Although the Supreme Court was presented with a proposed amendment to RPC 7.3 that would have prohibited lawyers from contacting potential clients for thirty days after an accident, the Supremes merely tightened RPC 7.3(b)(5)(I) by requiring the word advertisement to be on the outside of the envelope. The Supremes had a golden opportunity to stop attorneys from invading the privacy of potential clients. This type of advertising is bad for the public image of lawyers, and a thirty-day waiting period would diminish the practice as most people hire a lawyer within thirty days if they have a case.

I hope that the Supremes revisit this issue especially because many of these so called advertisements do not comply with the RPC and are misleading.

Rule Update: 4:18-1. In September, R. 4:18- 1 will be significantly different than its preamendment version. For starters, R. 4:18-b2 now requires that "the person" responding to the request certify in the form required under subsection c that the response is complete and accurate and based on personal knowledge and/or upon information if provided by others, the other person's identity and source of knowledge shall be disclosed.

This change makes the response to documents more similar to answering interrogatories. In practice, the rule might create some problems where "the person" providing the responses and documents is the lawyer, which is often the case because clients do not have the documents and many are obtained through an attorney's efforts. In addition, general objections are not permitted and are to be disregarded by the court and adverse parties. Three cheers to the latter amendment.

Is there anything more cumbersome and annoying than general objections - who reads them and has anyone ever seen the general objections used? The loss of general objections will save many trees!!

Practice Tip: review the changes to R. 4:18 and have someone in your office type the new certification into your computer as you will need it on a regular basis.

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 [email protected].

The opinions and comments expressed herein are attributable solely to the
author and are not representative of the Bergen County Bar Association.

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