A Temple University law professor who is not licensed in New Jersey but had a significant role in a Middlesex County medical malpractice suit engaged in the unauthorized practice of law, a committee of the New Jersey Supreme Court ruled.
Opinion 60, from the court’s Committee on the Unauthorized Practice of Law, represents an about-face from a July 2021 Appellate Division published ruling finding the law professor, Frank McClellan, did not engage in the unauthorized practice of law.
Out-of-state lawyers who provide certain types of legal services in New Jersey court cases but do not enter an appearance engage in the unauthorized practice of law, the court’s committee said in an opinion issued Dec. 19.
Lawyers who directly advise the client or provide other services, such as drafting of documents, outside the direct supervision of a lawyer admitted in New Jersey who do not seek pro hac vice admission must register as multijurisdictional practitioners, the committee said.
Conversely, out-of-state lawyers who provide lower-level assistance, such as researching legal issues and drafting documents under the direct supervision of an admitted lawyer, need not register as multijurisdictional practitioners, the committee said.
‘I Don’t Know What I Would Tell Them’
The committee’s review follows litigation over the role that McClellan, a professor emeritus at Temple’s Beasley School of Law, played in a medical malpractice suit brought by Cindy Johnson.
McClellan assisted with the case by reviewing the complaint with Johnson, drafting an affidavit, communicating with expert witnesses, and otherwise assisting the attorney who was counsel of record for Johnson, Aaron Freiwald. Freiwald could not supervise McClellan because he, too, was an Pennsylvania attorney, albeit one who obtained pro hac vice admission, the committee said.
After the malpractice case settled for $500,000, Johnson sued McClellan, claiming his $52,145 referral fee was improper and that he engaged in the unauthorized practice of law. A trial judge ruled in favor of Johnson and ordered McClellan to pay her $308,181. But the Appellate Division reversed that ruling, and the Supreme Court declined to grant certification in the case.
The questions about the unauthorized practice of law revolve around Rule of Professional Conduct 5.5(b)(3), which was enacted to address questions about multijurisdictional practice. The committee discussed the lengthy history of deliberations that led up to the adoption of the rule in 2003.
The committee said its research did not uncover any court or committee opinions addressing RPC 5.5(b)(3) since the 2021 Appellate Division ruling in the McClellan case. The unauthorized practice of law is a crime under N.J.S.A. 2C:21-22.
The Appellate Division panel said McClellan’s involvement in the underlying lawsuit “was limited to providing recommendations to plaintiff to assist her in retaining a properly licensed or admitted attorney to represent her in her case and then assisting her attorneys of record, conduct which is permitted by RPC 5.5(b)(3)(iv).”
The panel also said that the unauthorized practice of law by an attorney did not amount to a violation of the criminal statute.
“Such a finding would render every attorney who violates an RPC relating to the unauthorized practice of law open to criminal prosecution,” the panel said, adding that the statute “applies to unauthorized persons practicing law, not legitimate attorneys practicing law in an unauthorized manner.”
But the committee said that “while a published Appellate Division decision is binding on trial courts, the Supreme Court exercises constitutional power over the conduct of attorneys. The Supreme Court granted this committee the jurisdiction to issue advisory opinions relating to the unauthorized practice of law.”
William Gold of Bendit Weinstock in West Orange, who represented Johnson in the suit against McClellan, said he didn’t even realize the committee was reviewing the issue until a reporter called him about the opinion. Gold said the committee’s opinion “completely affirms my position” in the Appellate Division case. He wonders if the committee will refer the case to a prosecutor or if the Supreme Court will take the case on its own initiative.
Gold called the decision “bewildering. It’s a Pyrrhic victory. If someone called me up for professional advice from Pennsylvania, I don’t know what I would tell them.”
McClellan could not be reached for comment. His attorney in the Appellate Division case, John Slimm of Marshall Dennehey Warner Coleman & Goggin in Mount Laurel, declined to comment.
