Chair’s Message Some CLE FAQsby Marisa Trofimov

Over the past year, I have received a lot of questions from members of the Young Lawyers Division (YLD) about continuing legal education (CLE) credits. It is easy to understand why. It’s scary to think that not taking the right classes or filling out a form incorrectly will put your license in

jeopardy. The Court’s explanation of what is required is also sometimes difficult to understand. If you have a specific question about CLEs, I would encourage you to reach out to the New Jersey

Supreme Court Board on Continuing Legal Education. The general requirements for CLE credits can be found on the New Jersey Judiciary website at http://www.judiciary.state.nj.us/attyreg/cleinstructions.pdf. Just remember that the requirements are different for those attorneys in their first two years of practice.

If you are looking for a way to earn all of your CLE credits for the entire year (plus some) in one fell swoop, for a reasonable price, consider attending the New Jersey State Bar Association’s (NJSBA) Annual Meeting.

The Annual Meeting will take place this year from May 17-19, at the Borgata Resort and Casino in Atlan-tic City. If you attend programs scheduled throughout the entire meeting, you can earn up to 16 credits (you only need 24 credits every two years) for $199 (provided you register by March 29). That price includes breakfast and lunch, plus a number of other perks (such as an open bar at certain networking events).

During the Annual Meeting, there are a number of other networking events just for us, and CLE semi-nars aimed at our needs. Below is a sampling of young lawyer-related CLE seminars being offered at this year’s Annual Meeting:

•“WhatIWishIKnewThen,” practical advice for new lawyers from experienced lawyers•“Ethics:HotTopicsforYoungLawyers,”partly an ethics refresher course, partly a primer on the

pitfalls only younger lawyers encounter•“PracticalEvidence,”featuring a panel of experienced young lawyers and judges discussing the best

way to get things admitted into evidence

Dictum The newsletter of the NJSBA Young Lawyers Division

Vol. 41, No. 4 — March 2017

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The NJSBA has made great strides over the past few years to make the Annual Meeting relevant to new attorneys. While I have always attended the Annual Meeting to ensure that I receive my CLE credits, I have always been surprised at just how much fun I have at the same time, and how many contacts I have made to help my practice over the years. I hope to see many of you there!

Marisa Trofimov currently practices family law at the Deni Law Group, LLC, in Flemington, and is chair of the Young Lawyer’s Division of the NJSBA. She is a graduate of Yale University and Seton Hall University School of Law.

SAVE THE DATEMarch 7—YLD Executive Committee MeetingThe YLD executive committee meetings are open to all YLD members looking to get involved with the state bar. The meetings are typically held at the New Jersey Law Center in New Brunswick at 6:30 p.m. Everyone usually goes to dinner together after the meeting.

March 29—Public Service Project at the Boys and Girls Club of NewarkYLD members are invited to participate in a mentoring event at the Boys and Girls Club of Newark (1 Avon Ave., Newark) on Wednesday, March 29, at 5 p.m. We will be hanging out with some awesome kids and discussing goal setting with them. A networking happy hour will follow at a location yet to be determined. Email Nicole O’Hara at nohara@grossmcginley.com with questions or to sign up.

April 4—YLD Executive Committee Meeting

May 17-19—NJSBA 2017 Annual Meeting and Convention in Atlantic City

August 10-13—ABA Annual Meeting in New York City

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Inside this issueChair’s Message Some CLE FAQs 1by Marisa Trofimov

SAVE THE DATE 2

Practice Pointers Gloucester County School Board v. Grimm: Transgender Student Rights Reach the Supreme Court 5by Michael Poreda

Ethical Considerations for Young Lawyers 8by Jonas K. Seigel

Celebrating the “Ten-Dollar” Founding Father’s Birthday 10

A Peek into the Archives 11by Emily Kelchen

Where to Find Help When You Need It 11

Do You Have Something to Say? 12

The opinions of the various authors contained within this issue should not be viewed as those of the Young Lawyers Division, Dictum, or the New Jersey State Bar Association.

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Young Lawyers Division LeadershipCHAIRMarisa B. TrofimovThe Deni Law Group, LLC32 Church Street, Suite 2Flemington, NJ 08822908-782-2900mtrofimov@denilaw.com

CHAIR-ELECTJonas K. SeigelSeigel Capozzi Law Firm, LLC505 Goffle RoadRidgewood, NJ 07450201-444-4000jseigel@seigelcapozzi.com

TREASURERDana M. Van LeuvenVan Leuven Law, LLC170 Changebridge Road, Unit B3-1Montville, NJ 07045973-975-0788dvl@vanleuvenlaw.com

SECRETARYRajeh A. SaadehThe Law Office of Rajeh A. Saadeh, LLC50 Division Street, Suite 501Somerville, NJ 08876908-864-7884rsaadeh@rajehsaadeh.com

IMMEDIATE PAST CHAIRJames J. UlianoChamlin Rosen Uliano & Witherington268 Norwood AvenueWest Long Branch, N 07764732-229-3200jjuliano@chamlin-rosen.com

EXECUTIVE COMMITTEEMichael A. AustinLeah BartlomeAlyssa BongiovanniKatherine M. CaolaDylan DindialMark R. FriedmanMeredith FriedmanElizabeth Uliano GiblinTyler HallTiffany L. HeinemanKatrina M. HomelChristopher KeatingEmily Stever KelchenHyun J. LeeThomas J. ManzoDaniel MellorVictoria MercerVictoria D. MirandaRachel J. NguyenNicole O’HaraMarc PolesHelen M. QuanCory RothbotCorrie SirkinBrandon WolffThomas Zuppa

Dictum is the publication of the

NJSBA Young Lawyers Division (YLD),

and is a member-driven newsletter.

We welcome submissions,

including articles and news on any

relevant topic, such as practice tips,

work/life advice, and information

regarding upcoming meetings and

events. Please submit articles to

EKelchen@civiljusticenj.org with the

subject line YLD Dictum.

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In recent years, legal disputes regarding transgender students’ rights to use the sex-segregated facilities that correspond with their gender identities have

been percolating through government agencies and the court systems. On Oct. 28, 2016, the U.S. Supreme Court granted certiorari in Gloucester County School Board v. Grimm, the first such case to make it all the way to the Supreme Court.

Gavin Grimm is a trans-male student, now in his senior year at Gloucester High School in Gloucester Courthouse, Virginia. He was born female, but identifies as male. At the end of his freshman year of high school, he began hormone therapy and changed his name to Gavin. Before beginning his sophomore year, Grimm and his parents notified the school that he would begin to live all parts of his life as a boy, and the school was wholly supportive.

Initially, Grimm requested to use only a private rest-room in the nurse’s office. Later, he asked if he could use the boys’ restrooms, and the school obliged. No students complained about this, but it sparked hostility in the community.

The issue came up on the Nov. 11, 2014, agenda of the Gloucester County School Board meeting, where angry parents called Grimm a “young lady” and a “freak.” In response, the board proposed a “transgender restroom policy.” The gist of the policy was that students could only use the restrooms that corresponded to their “biological genders,” and students with “gender iden-tity issues shall be provided an alternative appropriate private facility.” Indeed, the school board transformed several closets into single-occupancy bathrooms for any student wishing to have greater privacy. Grimm found the alternative bathroom regime humiliating. He felt completely uncomfortable in the girls bathroom, and he

developed urinary tract infections from avoiding use of the school restrooms.

Disputes over transgender students’ rights to use the sex-segregated facilities that correspond with their gender identities have resulted in investigations and guidance from the Department of Education’s Office of Civil Rights (OCR) several times in the past few years. The disputes required interpretation of Title XI of the Civil Rights Act of 1964, which prohibits educational institutions that receive federal money from discrimi-nating “on the basis of sex.” The question in the recent transgender cases has been whether Title XI’s prohibi-tion against discrimination “on the basis of sex” applies to schools who do not treat transgender students in accordance with their gender identities. In investigations in 2013 and 2014, the OCR found that denying trans-gender students the right to use sex-segregated facilities that were consistent with their gender identities was discrimination “on the basis of sex.”

On Jan. 7, 2015, the OCR issued an opinion letter relevant to Grimm’s case. The letter stated that Title IX’s implementing regulations generally required schools to permit transgender students to use the restrooms consistent with their gender identities. The opinion letter relied on previous determinations and guidance issued by the OCR, the Equal Employment Opportunity Commission (EEOC), the Department of Health and Human Services, and the Department of Labor. Gener-ally speaking, the trend among administrative agencies is to view discrimination based on gender identity the same as discrimination on the basis of gender expres-sion. Typically, administrative guidance notes that the Supreme Court has repeatedly stated that discrimination on the basis of “gender expression” is discrimination “on the basis of sex.”

Practice Pointers Gloucester County School Board v. Grimm: Transgender Student Rights Reach the Supreme Courtby Michael Poreda

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The intersection of the opinion letter and one of Title XI’s regulations is the crux of the Grimm case. While Title XI prohibits discrimination on the basis of sex, some of its regulations do allow the sexes to be segregated under certain instances. The regulation at issue here is 34 C.F.R. § 106.33, which permits federal aid recipients to “provide separate toilet, locker room, and shower facilities on the basis of sex.”

On June 11, 2015, Grimm filed a complaint in the United States District Court for the Eastern District of Virginia. The complaint alleged violations of the 14th Amendment and Title XI. A few days later, Grimm filed a motion for an injunction blocking the implementation of the school board’s transgender restroom policy. The district court denied the injunction and dismissed the Title XI claim, finding that Section 106.33 was unam-biguous and did not require schools to afford transgen-der students the use of the restrooms consistent with their gender identities.

Grimm appealed. In a 2-1 decision, the Fourth Circuit found that the district court had erred. Citing Auer v. Robbins1 the Fourth Circuit held that the regu-lation was ambiguous and that the opinion letter held force. On remand, the district court granted the injunc-tion. The school board petitioned the Fourth Circuit for a stay of the injunction, which the Fourth Circuit denied. The board then asked the Supreme Court to stay the injunction pending a petition for certiorari.

In a 5-3 decision issued on Aug. 3, 2016, the Supreme Court granted the stay. Justice Stephen Breyer was the swing vote. In his concurring opinion, he stated that, in light of the fact that four justices voted in the school board’s favor, that the Court was on recess, and that granting the stay would preserve the status quo until the petition for certiorari could be heard, he voted in the school board’s favor “as a courtesy.” This sent some speculating that Breyer would ultimately join the other three liberal justices and deny the motion for certiorari. That would have created a 4-4 vote, which would have left the Fourth Circuit’s decision in place.

But on Oct. 28, 2016, the Supreme Court granted certiorari. The decision to hear the case may be due to an intervening crisis over the same issue that arose else-where in the country. In May 2016, a joint letter from the Department of Education and the Department of Justice went out to schools informing them that refus-ing to allow transgender students the right to use the

restrooms that correspond with their gender identities would be treated as a Title XI violation. In response, 12 states sought a preliminary injunction against the Obama administration’s trans-friendly directives in the United States District Court for the Northern District of Texas. On Aug. 21, 2016, just a few weeks after Justice Breyer gave the conservative justices a “courtesy” vote, Judge Reed O’Connor of the Northern District of Texas issued a nationwide injunction on the Obama adminis-tration’s pro-trans directives.

Is Section 106.33 really ambiguous? According to the majority in the Fourth Circuit, it is. According to that opinion, the term “sex” at the time of the drafting of Title XI was thought of as a binary. The regulations never considered the existence of transgender people, and are, therefore, ambiguous. In light of an ambiguity, the courts defer to the agency’s interpretation of its own regulations.

According to the original opinion in the U.S. District Court for the Eastern District of Virginia, the term is not ambiguous. In somewhat convoluted reason-ing, the district court stated:

[T]he only way to square G.G.’s allegations with Section 106.33 is to interpret the use of the term “sex” in Section 106.33 to mean only “gender identity.” Under this interpretation, Section 106.33 would permit the use of sepa-rate bathrooms on the basis of gender identity and not on the basis of birth or biological sex. However, under any fair reading, “sex” in Section 106.33 clearly includes biological sex. Because the School Board’s policy of providing separate bathrooms on the basis of biological sex is permissible under the regulation, the Court need not decide whether “sex” in the Section 106.33 also includes “gender identity.’

In his dissent, Judge Niemeyer of the Fourth Circuit appealed heavily to tradition. The dissent stated that the regulations must be construed in the same way they were at the time the regulations were promulgated. In Judge Niemeyer’s opinion, the 1960s-era dictionary definition of “sex,” which understood the concept in terms of binaries, controls. The binary notions of sex, he argues, were linked to a need for privacy. His opinion states that the majority’s holding, “tramples on all universally

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accepted protections of privacy and safety that are based on anatomical differences between the sexes...[It] overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect.” He later states, “Across societies and throughout history, it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females. An individual has a legitimate and important interest in in bodily privacy such that his or her nude or partially nude body, genetalia, and other private parts are not exposed to persons of the opposite biological sex.”

What is unambiguous is that the legal issue in Grimm is subject to many interpretations and perspectives. For Gavin Grimm, however, the controlling interpretation probably won’t be decided until after he graduates.

The case’s impact on transgender students in New Jersey is not likely to be as profound as it might on students in other parts of the country. Unlike federal law, New Jersey’s Law Against Discrimination explicitly prohibits discrimination on the basis of gender identity or expression in places of public accommodation, including schools. Although no regulation, case law, or state agency guidance has ever addressed the arguments about privacy and safety that the Gloucester County School Board have advanced, a New Jersey school board adopting Gloucester County’s position would face a significant legal obstacle of proving that its posi-tion did not run afoul the explicit protections of the Law Against Discrimination.

Michael Poreda is an associate at Lydecker Diaz in Jersey City. His practice focuses on civil rights litigation, including cases that arise in the workplace, public space, educational, and law enforcement contexts. He has clerked for trial judges in the state and federal courts of New Jersey. He is a 2010 graduate of Seton Hall Law School.

Endnote1. 519 U.S. 452 (1997).

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Ethical Considerations for Young Lawyersby Jonas K. Seigel

As a young or new lawyer, it is easy to be overwhelmed with the pressures of practicing law: f inding your place in a new firm,

representing demanding clients, dealing with difficult adversaries, and so on. But of all the obstacles and hurdles we face, we must accept that we are powerless over some and in control of others. We are certainly in control of our moral compass, and the New Jersey Rules of Professional Conduct are our GPS. Below are some of the most important takeaways from some of the most important rules a young lawyer should keep in mind in order to build and maintain the reputation he or she has fought so hard to achieve. And remember, we can spend a lifetime building a reputation and have it ruined in a split second.

RPC 1.1 CompetenceRPC 1.1 should remind us that it can be so easy to

say yes to a client and so hard to say no. If you are unfa-miliar with a matter presented to you, it may be best to recommend an attorney who handles that particular area of the law. Sure, you could research the case law and take a continuing legal education course, but you could also be sued if you make a mistake. The New Jersey State Bar Association is a wonderful resource for attorneys handling everything from aviation to zoning law, so take advantage of your membership.

RPC 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer

RPC 1.2 is important because it reminds us that we work for our clients, not the other way around. Be clear about the parameters of representation and make sure you are aligned with the goals of your client from the outset. In addition to being great speakers, we must also be greater listeners. I recently turned down a matter because the client wanted to sue the mayor of a munici-pality for a defective sidewalk, and not the property owner. At our initial consultation, I knew his goal was not simply to be compensated for his injuries, but rather to pursue a personal vendetta.

RPC 1.4 CommunicationsRPC 1.4 sets forth the number one reason why a

client will leave you for a new lawyer. It is imperative to have good communications with your client. So, if you do not like your client on day one, chances are you are not going to like him or her on day 90 or 365. Be clear about whether or not you want to communicate by email, text, or Skype. Establish whether you want clients texting you throughout the weekend, late at night, or early in the morning, and be mindful if a client lives in a different time zone or country.

RPC 1.5 FeesRPC 1.5 may be the most difficult rule for solos

starting out, since I have yet to meet a lawyer, new or experienced, who feels he or she is overvalued. In deter-mining the reasonableness of your fee, try to balance what it is that sets you apart from other attorneys (of similar experience) against the fair market value of the same legal service in your demographic or industry. Clients are looking for value, and not all clients are going to trust the lawyer with the lowest retainer or fee. If you are clueless, look for a mentor or ask other lawyers what they charge.

RPC 1.6 Confidentiality of InformationRPC 1.6 is the no gossip rule. Remember, few people

see a lawyer because something great happened to them. In fact, everyday people are entrusting us with their problems and we have a responsibility to keep quiet. Society is obsessed with the law, and many lawyers are obsessed with telling their friends, family, colleagues, and neighbors about the matters they are handling. In doing so, not only do you risk violating one of the most funda-mental rules of professional conduct, but you also convey to the people you confide in that you cannot be trusted. It is also important to be careful when posting information on social media or presenting scenarios in a lecture.

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RPC 1.7 Conflict of InterestRPC 1.7 offers us guidance on when we can properly represent one client while not detri-

mentally affecting the outcome of another client. I see this situation play out regularly in motor vehicle accidents. For example, husband (driver) and wife (passenger) are on the way to a holiday dinner when they are involved in an accident in an intersection. Both drivers claim they each had the green light. Both husband and wife are seriously injured. The police report attributes fault to both vehicles. Knowing that the husband will be deemed a percentage at fault, I will represent the passenger and refer the driver to another attorney to avoid conflict of interest.

RPC 4.1 Truthfulness to OthersRPC 4.1 is worth mentioning for several reasons. First, if you commit to being an honest

lawyer to all, you will never violate RPC 3.3 Candor Toward the Tribunal. Second, to reiterate what was mentioned earlier, you never want to gain a bad reputation, especially for being dishon-est. Often, I find that a simple mistake or an instance of neglect is not nearly as bad as the lie or cover-up. Lastly, if you do make a false statement, do the right thing and correct it as soon as possible. As zealous advocates for our clients, our passions may get the better of us from time to time. But the practice of law is a noble profession, and we should always act as such.

Jonas K. Seigel is the managing partner at Seigel Law—with offices in Ridgewood, West New York, and Red Bank—where he focuses exclusively on serious personal injury, medical malpractice, and wrongful death matters.

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On Jan. 12, members of the New Jersey State Bar Association (NJSBA) Young Lawyers Division (YLD) and the Passaic County Bar Association (PCBA) came together in

celebration of Alexander Hamilton’s birthday. Alexander Hamilton was born on Jan. 11, 1755. He was a found-

ing father of the United States; one of the most influential interpret-ers and promoters of the United States Constitution; the founding father of the Federalist Party (the world’s first voter-based political party); and the author of 51 of the 85 essays collectively titled The Federalist Papers.

Hamilton also had an impressive legal career, arguing Rutgers v. Waddington (New York Mayor’s Court, 1784), a landmark case for the American justice system that led to the creation of the judicial review system; Hylton v. U.S., 3 U.S. 171 (1796), which was the first Supreme Court case on the constitutionality of a law; and People v. Croswell, 3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804), where he defended the free-dom of the press.

In 1792, Hamilton founded Paterson, New Jersey, the first planned industrial city. He selected the site because of the powerful waterfall, known as the Great Falls, located on the Passaic River and the water power that it generated. Based on that historical context, the NJSBA YLD and PCBA met in Paterson, at the aptly named Hamilton and Ward Steakhouse, to celebrate Alexander Hamilton. It was an evening of networking and socializing, attended by attorneys in various stages of their legal career and from varied practice areas.

We hope to see you at the next YLD event!Did you attend a cool legal or charitable event? Let us know,

and you may be featured in Dictum and on the YLD’s social media accounts. Shoot an email with pictures and a summary of your activities to Dictum’s editor, Emily Kelchen.

Celebrating the “Ten-Dollar” Founding Father’s Birthday

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A Peek into the Archives by Emily Kelchen

Have you ever wanted to know what former YLDers considered the hot topics of the day? One way to travel back in time is to check out the past

issues of Dictum on the state bar’s website. 1. Head to njsba.com. 2. Once you are logged in, click on “CommunityNET” in the navigation bar. 3. Under “Sections and YLD,” click “My Section(s).”4. Click “Young Lawyers Division.”5. Under “Participate,” click “Our Library.”6. Click the little file folder icon to switch to “Folder View.”7. In the right-hand column, click the expansion arrow next to “Newsletters.”8. Finally, select the year you are interested in, and start reading.

For me, the best part of looking back in the archives was finding an article written by an attorney I now work closely with, and sending it to him or her for laughs. But I also read an interesting article on the importance of keeping up with changing court rules, and learned that they used to hold one YLD meeting a year at a Rutgers basketball game.

Emily Kelchen is the editor of Dictum and the director of public affairs at the New Jersey Civil Justice Institute.

Where to Find Help When You Need ItEveryone needs help from time to time, even lawyers.

If you have specific ethics questions you can reach out to the Office of Attorney Ethics.

Many ethics problems arise because of emotional issues or substance abuse problems. If you need help, don’t hesitate to reach out to the New Jersey Lawyers Assistance Program. It’s free and confidential.

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Do you have something to say that you think other members of the YLD should know about? Why not submit an article or announcement to the YLD’s newsletter, Dictum?

In the next issue of the newsletter we would like to print articles on the following topics:•Advice for lawyers thinking about getting admitted in other jurisdictions.•Going solo: How are you making it work? What do you wish you had known before hanging

your own shingle?•Making partner: What tips do you have for young attorneys who want to make partner?•Clerking: How did you get your clerkship and how did you make it a success?•Pro bono experiences: Do you have a story to share about your experiences? •E-filing and bail reform: Are these topics impacting your practice or your clients?

We are also open to publishing other submissions of interest to young lawyers, so don’t let this list of topics limit your writing.

Submissions to Dictum should be 1,500 words or less, and concern something of interest to young lawyers. You can include hyperlinks, but not footnotes or endnotes.

Only original work is accepted, but once your article is published in Dictum you can repub-lish it elsewhere with a simple disclaimer. Previous contributors have re-published their articles on their firm’s blog, on LinkedIn, and in other legal newsletters.

The deadline to make it into the next edition of the newsletter is April 1. Please email anything you would like considered for publication to Dictum’s editor, Emily Kelchen, with Dictum in the subject line.

Do You Have Something to Say?

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