ACC Focus on the New Jersey Chapter - March 7, 2008 (Print All Articles)

NJCCA President's Message

by Lee Bream

Important  recent changes at NJCC.

To NJCCA Members,

Opportunities to advocate for our membership do not come often, but when they arise, we want to act.  In the case of  the New Jersey Supreme Court's implementation of a limited license for in-house attorneys, we have  advocated for change to soften the impact  on  those  affected and  for the Court  to clarify specific elements of the rule.  For example, after the initial issuance of the Rule (1:27-2), we were successful in asking the Court to clarify some of its language , most notably successfully advocating for a correction affecting part-time in-house attorneys .  We were able to influence the content of the mandatory ethics and professionalism training to make it better suited to in-house counsel (sorry, we couldn't lessen the requirement to sit in class for 3 hours). 

Most recently, based on requests from some members, we asked the Court to change the language of the Rule .  As it currently stands, the limited license holder can only represent  the employer organization and cannot represent a company director, officer, partner, or employee  even if there would be no conflict in the joint representation.  Even if the organization and directors or officers or other individuals are all named as defendants in a suit, under the current rule, the limited license attorney could not represent the individuals; separate counsel is needed.  Joint representation issues could also arise in other contexts, such as regulatory or licensing proceedings.    

A notice was recently issued for  a  package of rule changes that includes  a  proposal to adopt the language we proposed to the Court on limited licensing. The proposals can be found at: http://www.judiciary.state.nj.us/reports2008/index.htm.  Go to the link for the Professional Responsibility Rules Committee.   Comments are due by April 7th.  If adopted, the changes would go into effect September 1, 2008  and would allow, subject to ethical limits on representation when clients may have conflicting interests, a limited license holder to represent constituent persons in certain proceedings.

There are also proposals to change the multijurisdictional practice rules (RPC 5.5)  to ease restrictions on out-of-state lawyers coming into the State to engage in ADR, discovery, transactions or other occasional practice.  If you use out-of-state firms, this proposed changes should be a benefit  and avoid extra costs .  

Save the Dates:

Our Spring Cocktail reception is scheduled for May 13 at the Pleasantdale Chateau in West Orange (the location for last Fall's membership dinner).  I encourage all members to have some fun with your colleagues, enjoy some jazz, and a special wine tasting.  I encourage those new to in-house or those in transition to use this unique networking opportunity.      

Our golf outing is June 17th at Knoll West.

Our all day CLE event will be September 18 at the Hannover Marriott Hotel.  
 
I hope to see you at one or all of these events and in the meantime, please contact us with your concerns or questions. 

Lee Braem
President, NJCCA  

Free to Fudge the Facts

Ken Isaacson
What if you could rewrite the facts so as to make things come out just the way you want them to be?

As lawyers, we’re constrained by facts. A client comes to us with a problem—a deal to put together, a lawsuit to commence or defend—and the first thing we must do is learn the facts. From then on, all the advice we give and the actions we take are dictated by the immutable facts of the case.

For those of us who are litigators, this is often confounding. We have a meritorious case and a deserving client. If only the facts weren’t so…so factual. You know what I’m talking about. Why’d the client have to write that particular email? Why’d he have to say that in front of all those witnesses? It’s such a great case, and we’re still in the right, but the client went and did something stupid. And now, as Desi used to tell Lucy all the time: “You’ve got a lot of ‘splaining to do.” If only the facts were just a little malleable, we could avoid a bit of unnecessary tap dancing. 

As a lawyer, I write for a living. And I suppose there are cynics who’d even say that lawyers write fiction for a living. We’ve all heard the complaint that litigation isn’t about finding the truth, it’s about finding whose version of the truth will prevail. While there may be something to that view, I can honestly say I’ve never fabricated facts, or intentionally hidden them, to gain the upper hand in a legal matter. But what if we weren’t bound to the reality that the facts impose upon us? What if, in the middle of your big case, when you realize that the facts aren’t playing out just as you’d hoped they would, you could go back and change things? Un-write the ill-advised email, or un-say the indiscreet remark? You could make things come out just the way you want them to be.

That’s the great thing about writing legal thrillers. I get to make stuff up. And if I don’t like how it turns out, I get to go back and change it. I’m free to explore “what ifs” and “how abouts” to my heart’s content. I can be perpetrator, victim, witness, prosecutor, defense counsel, judge and jury. In short, I get to make up my own facts, and there’s nothing unethical about it!

My first legal thriller, Silent Counsel, was published in September 2007. The idea for it came to me upon reading a true account of a hit-and-run incident along a highway in Florida some time ago. In that case, the driver hired an attorney and charged him with the task of negotiating a plea agreement with the authorities while at the same time keeping his (the client’s) name secret under a claim of privilege. A court battle ensued, testing the bounds of the time-honored doctrine of attorney-client confidentiality: Could the simple name of a client be “privileged information”?
That case resolved itself before the novel legal question was answered by the courts—the driver ultimately came forward on his own. But the magazine article got me thinking. What if the court were to hold that a lawyer attempting to negotiate a plea agreement for a hit-and-run driver didn’t have to reveal his client’s identity? The prosecutor, no doubt, would refuse to bargain. But what if the mother of the small victim found out that the lawyer knew who had killed her child but maintained his silence, relying on the privilege? How far would the mother go to find out who killed her child? And how dedicated to the principle of attorney-client confidentiality would the attorney be when the going got tough? 
With these questions in mind, I set out to write Silent Counsel, the story of attorney Scott Heller and mother Stacy Altman. After Stacy’s six-year-old son is run down in front of their house, with no witnesses to the tragic accident, she learns that the driver has hired Scott to negotiate a plea arrangement with the prosecutor. But he’s instructed Scott to keep his name secret until a satisfactory agreement is in place. The prosecutor refuses to make a deal, and the court rebuffs Stacy’s efforts to force Scott to tell her—or even the authorities—who his client is, holding that it is privileged information. Since the court won’t do anything to help Stacy track down her son’s killer, she takes matters into her own hands, and is determined to make Scott talk—at any cost… When Stacy's stalking of Scott's young daughter escalates into a kidnapping, Scott makes the only reasonable choice a parent can—cooperate and give up the client. That’s when Scott discovers that doing the right thing isn’t as easy as he thought, and now the mother isn’t the only one looking for the child’s killer.

When I first sat down to begin writing Silent Counsel, I didn’t have a clue how to proceed. I decided to approach the task as I did a legal case, and I remembered an instructor in one of my continuing legal education classes advising of the importance of developing a theme for your case. “A case without a theme is just a bunch of testimony,” I’d been told. “A car crash doesn’t happen in a vacuum—it’s a tragedy that involves real people and real consequences.” Cloaking your case with a theme gives jurors a reason to stay interested and alert: “This case is not just about young Will being injured when the buckling mechanism on his infant seat came loose. It’s about the kind of corporate greed that places the cost of recalling a defective product and the benefit of saving a child’s life on opposite ends of a scale—and tips that scale against the child.” Now, with that theme in the jury’s mind, otherwise dry testimony about how this strap connects to that latch may be, if not interesting, at least a little more bearable. There’s a reason to care.

In the context of a legal case, we start—necessarily—with the facts as they’re presented to us. We search for a theme that relates well to those facts and exerts the right amount of emotional pull to grab hold of the jury. Writing fiction, though, allows the reverse.
When I started, the page was quite literally blank. There were no facts, only an idea: What if the attorney representing a hit-and-run driver didn’t have to reveal his client’s name because the court held it was privileged information? With that intriguing premise in mind, I began constructing facts: I decided that the victim of the driver had to be a child, because readers (my jury) would care more about this arcane legal issue if the attorney-client privilege was being used to shield someone responsible for a youngster’s death. I knew that the lawyer in my story would face a difficult ethical dilemma—needing to protect the confidences of a client while feeling that the “right” thing to do would be to help the grieving mother.

Because I had never faced such a challenge, I decided my lawyer should (like me) be unaccustomed to criminal practice and protecting the rights of the guilty. I made him a corporate litigator handling a “quick referral” for a friend—just a matter of making a few phone calls to the prosecutor to see if a deal could be made. This way, in the process of writing, I could experience the doubts and misgivings of my protagonist as he did, for the first time. And, I decided that my lawyer should have a young child of his own, so the conflict he felt between duty and right would strike close to home.

From this germ of an idea, and these few basic facts, emerged competing themes: Silent Counsel would be about a lawyer’s struggle with his personal beliefs when confronted with the fundamental need for secrecy between client and attorney. It also would be about a mother’s frustration and rage at a system that places more value on a legal technicality than bringing the killer of a six-year-old boy to justice.

I knew little more about Silent Counsel than this when I began writing. I’ve since heard the writing process compared to driving from New Jersey to California in the dark, being able to see only as far as your headlights illuminate. You know where you are, you know where you ultimately want to be, and you have a vague idea of how you’re going to get there. But all you know for sure right now is the ground you’ll be covering within the range of your headlights—and something just outside your view may change your plans. You discover that the bridge you planned to take across the river is washed out, and instead of going directly from Point A to Point B, you find yourself driving miles along the river until you come upon the next way across. You planned on driving west, but unforeseen weather conditions force you to take the southern route instead. This is how writing was for me: I’d start a chapter knowing generally where I was heading, with some specific short-range ideas of what route to take, and find out quickly that the characters had something else in mind. I’d watch, almost a spectator, as dialog unfolded, and I’d discover things about my characters and the story that I hadn’t known before. 

That’s when it becomes really useful to be able to control the facts. Remember, I lamented a lawyer’s inability to un-write the ill-advised email, or un-say the indiscreet remark? In the middle of writing fiction, when the story takes an unexpected left turn, and the sun-shiny day mentioned a few chapters ago no longer suits your purpose, you can simply go back and create a thunderstorm. Believe it or not, it actually takes some getting used to. I remember the first time during the writing process when an action one of my characters was about to take just wasn’t consistent with the facts up to that point. I was stumped. How could he possibly do that in view of what had come before? Then it dawned on me—what I had already written was not etched in granite. I could go back and rewrite history. A little thought and a couple of keystrokes, and a new path opened for my character. That was heady stuff.

As lawyers, we all have the tools necessary to write fiction. We’re an imaginative and creative bunch, we can organize facts and concepts, and we know how to convey our ideas in compelling fashion, in writing. And, our day-to-day activities are fertile grounds for material. Don’t like the ruling the judge just made in the middle of your trial? Just sit back and enjoy conjuring up the fate that might befall him if he were a character in the book you’re writing.

Micromessaging

Valarie Camara
A “micromessage” can be as simple as a look, a gesture or how you say something.…

On March 6th, a group of about 75 corporate counsel and members from our sponsoring firm, Porzio, Bromberg & Newman, PC, had the opportunity to listen to Stephen Young, the president and founder of Insight Education Systems.  During his powerful presentation, Mr. Young sensitized us to the impact that the micromessages can have on us as a sender, a receiver, or an observer.  Microinequities are negative micromessages – small, subtle messages, frequently unconscious – that devalue, discourage and ultimately impair performance in the workplace. In contradistinction, microadvantages are positive micromessages that empower, encourage and inspire improved performance in the workplace.  These messages are typically nonverbal and can take the form of looks, gestures, tone of voice, inflection or inference.

The program was hosted by the NJCCA Women's Networking Committee and the Diversity and Minority Bar Relations Committee in an effort lead by Evaleon Hill and Linda Pissott Reig of Porzio.  The evening was kicked off with time for networking, cocktails and a light supper followed by an interactive presentation by Stephen Young.  Deborah Dagit, Merck & Co., Inc.'s Chief Diversity Officer introduced Mr. Young and provided the audience the context for this program.  Ms. Dagit also mentioned that about half of Merck's global workforce has been through this program, which has been valuable in providing employees with a common vocabulary upon which to raise an issue.

Valerie Camara, President –Elect, closed the program by thanking Mr. Young for his presentation and the audience for their participation.  Linda Pissott Reig and D. Jeffrey Campbell, on behalf of Porzio, Bromberg & Newman and its subsidiaries, Porzio Pharmaceutical Services and Porzio Governmental Affairs, then announced the door prize winners and provided the participants with a complimentary, autographed copy of Mr. Young's book, Micromessaging: Why Great Leadership is Beyond Words.  The door prizes were generously provided by Porzio Pharmaceutical Services and Porzio Governmental Affairs.   An additional facet to the evening's event was the generous donations of toiletries that the participants made in support of Jersey Battered Women's Services, Inc.

Upcoming NJCCA Events

Register today for these relevant and insightful events.

Saks Fifth Avenue Fashion Presentation of Executive Women's Attire
Date & Time: April 30, 2008, 6-9PM 
Description: The Fifth Avenue Club, Saks' personal shopping service, will showcase models presenting fashions for the executive women: business suits, business-to-evening, evening dresses, and "business casual". Guests will enjoy displays of accessories, cosmetics and jewelry to compliment the fashions presented. Hor d'oeuvres, dessert and beverages will be served which is being sponsored by Sedgewick, Detert, Moran & Arnold, LLP 
Location: Sak's Fifth Avenue, The Mall at Short Hills
Chapter Contact: Gail Girard, Executive Director, NJCCA
RSVP: (732) 234-6182, by Fax (732) 283-0933 or via Email njcca@optonline.net
Cost: Members: $25, Non-members: $35; Please make your check payable to NJCCA and mail to:

Gail Girard
Executive Director, NJCCA
PO Box 4
Spring Lake, NJ 07762

Third Annual Golf Outing
Date & Time: June 17, 2008, 1:00 to 9:00 PM EDT
Description: Enjoy an afternoon of golf followed by cocktails, dinner and prizes.
Location: The Knolls
Chapter Contact: Kristi Vaiden, Executive Director
RSVP: (973) 706-5027, by Fax (973) 706-5027 (call first) or via Email njcca@optonline.net
Cost: TBD

SEPTEMBER

Sixth Annual All-Day Conference
Date: September 18, 2008
Time: 8:30 AM to 7:00 PM EDT
Description: Full day of CLE, Career Enhancement and Ethics programs followed by cocktail reception.  Last year more than 150 in-house counsel attended the event, which featured 18 programs with 75 speakers.  Don't miss this stellar opportunity for education and networking planned by in-house counsel for in-house counsel.
Speakers:  Featured speakers will include general counsels from area corporations as well as legal experts from the best law firms in NJ, NY and Europe.
Chapter Contact: Gail Girard, Executive Director
RSVP Phone: (732) 234-6182 or for FAX (732) 282-0933 
RSVP Email: njcca@optonline.net
Member Cost:  TBD
Non-Member Cost:  TBD

OVERRULED! by Aronds

As far as we know, still the only Chapter Newsletter with its own in-house cartoonist!