Amicus Curiae New Jersey Association for Justice Represented by Michael J. Epstein
September 18, 2020
Attorney Michael J. Epstein of The Epstein Law Firm, PA., recently argued a case in front of the New Jersey Supreme Court as amicus curiae (“friend of the court”) on behalf of the New Jersey Association for Justice. The case is Delaney v. Dickey, et. al. and the subject matter is what is required of a lawyer who includes an arbitration agreement covering potential legal malpractice claims in his or her retainer agreements that they ask clients to sign.
The New Jersey Supreme Court examined whether these arbitration causes exist for the benefit of the law firm or the client. The Supreme Court was reviewing the Appellate Division’s decision that stated that not all such retainer agreements were invalid, but given the specifics of this case, this retainer agreement was invalid. Mr. Epstein argued that the Appellate Division’s decision should be upheld.
Mr. Epstein argued that lawyer’s retainer agreements should not include mandatory arbitration provisions covering legal malpractice, but if the Supreme Court disagreed, he suggested that the Supreme Court impose clear guidelines on what must be disclosed.
The clause in issue in the contract between plaintiff and respondent stated that while there was a hope that any disputes between the parties could be settled amicably, in the event that this goal could not be achieved,
…we and you agree that such dispute will be submitted to and finally determined by Arbitration….
Given that the determination of the arbitrator would be final, the arbitration clause states that:
…you would need to engage separate counsel to represent your interests and you would incur additional expense in connection with such arbitration.
This will be a very interesting case to watch as further proceedings unfold, as it speaks to the nature of the contractual relationship between attorneys and their clients, and the complexity of both fiduciary issues to which attorneys are bound and the trust the public puts in lawyers to educate them about legal issues relevant to their interests, even when this might be at the attorney’s own expense.