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NJ Supreme Court Agrees to Review Two Lawyer Conduct Cases

September 23, 2009

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Two cases that we previously highlighted on <i>Of Interest </i>have been placed onto the New Jersey Supreme Court’s docket for this Fall.
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In <i>Stengart v. Loving Care Agency</i>, Inc. et al., the trial court originally held that e-mails sent by an employee to her attorneys on her employer’s computer were the property of the employer pursuant to its policy regarding electronic communication. Thus, when the employee sued her (now former) employer, the employer was permitted to use the plaintiff’s e-mail that had been extracted from the computer, despite the fact that attorney-client privilege was implicated. The Appellate Division disagreed and held that attorney-client privilege trumped the employer’s privacy policy, and suppressed the use of the e-mail communication. It also ordered a hearing to determine whether the employer’s attorneys should be disqualified or otherwise sanctioned for viewing the privileged communications. The Supreme Court will now determine how to properly balance these two important interests.
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In <i>Rabinowitz v. Wahrenberger</i>, plaintiffs originally filed a medical malpractice action against a hospital for the death of their child. The attorney representing the hospital asked the father whether the father's statement to the police about his suspicion of murder was a reference to the baby’s mother. Plaintiffs later sued defense counsel for intentional infliction of emotional distress because of those uncomfortable questions, but the trial and appellate courts found the questions were privileged, that the lawsuit was frivolous, and awarded legal fees to the defendant. The Supreme Court will now determine whether the plaintiff or plaintiff’s counsel ought to be responsible for paying that award.
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Both cases have important implications for both attorneys and their clients, so be sure to check <i>Of Interest </i>for any updates.

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