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MAY 5, 1997

By Henry Gottlieb

A lawyer who wants to try the state Division of Civil Rights for legal malpractice is having a tough time selling his case to an appeals court.

He got sympathy at a hearing on Wednesday, but mostly for his clients, not for his legal argument.

Princeton solo practitioner Glenn Bergenfield represents two black workers whose 1984 discrimination complaint against Goodyear Tire & Rubber Co. was dismissed in 1995 of the doctrine of laches: the division had taken nine years to decide that the case had merit.

Bergenfield won a significant victory last August when a trial judge said the Tort Claims Act didn't immunize the division from a malpractice suit, and employment lawyers who say the division is inefficient have been cheering Bergenfield's attempt to hold the agency to the same malpractice standards as private attorneys.

At Wednesday's hearing Appellate Division Judges Virginia Long, Steven Skillman and Mary Cuff appeared to be genuinely appalled about what happened to Bergenfield's clients.

"Are you intending to defend the Division of Civil Rights' investigation?" Skillman asked Deputy Attorney General Patricia Shiripo.

The answer was no. The undisputed record of Reaves v. New Jersey, A-2125-96T3, shows years of inaction on the worker's complaint that Goodyear denied them promotions because they were black. Goodyear denies it discriminated. The division claims it lacked the financial resources to work quickly on it s crushing workload.

Skillman also appeared unhappy when Schiripo said she didn't know whether any of the investigators had been disciplined by the department for shoddy work on the Goodyear employees' behalf.

But the judge's sympathy didn't seem to extend to the plaintiffs' legal theories.

Bergenfield started out---as attorneys with novel causes of action typically do---by seeking to dispel any notion that a ruling in his favor would start a stampede by thousands of claimants. Schiripo had made that argument in her brief: that without immunity, state investigative agencies---which have never been found to have professional responsibility to complainants---would be open to hordes of suits.

"It's not an affront to tort claims immunity," Bergenfield said of his suit. The case is narrow, he suggested, because the Civil Rights Division acts in a legal capacity to win recoveries for claimants; it doesn't just right societal wrongs in a general way, as many agencies do.

Bergenfield has argued from the outset that his clients, who came to him after the case was dismissed for laches, felt they had entered an attorney-client relationship with the division. That raises the question of whether and when a duty arose similar to that which a lawyer owes a client.

Bergenfield argues that a duty to complainants starts when the division agrees to investigate. The sate replies that there might be a duty after a finding of probable cause, because the division then champions the complainant's specific case.

But he division is required to investigate every complaint, so it can't be considered a complainant's lawyer before probable cause has been found, the state argues.

Skillman pointed out, moreover, that there were no affidavits from the clients supporting the contention that they felt they were in an attorney-client relationship right from the start.

Normally, when a person argues that he relied on a representation of someone who theoretically owed a duty, "the person says, 'here's what was said to me.'" Skillman said.

Bergenfield countered that though there were no such affidavits, discovery would make it clear that his clients had reason to believe the division had taken them on as clients.

Cuff compared the Civil Rights Division to a prosecutor's office, which investigates crimes but has no legal duty to the complaining victims. Bergenfield called it an inapt analogy, because the Civil Rights Division seeks specific recoveries for complainants.

Skillman suggested that the only remedy for the kinds of wrongs committed against Bergenfield's clients by the division may be legislation designed to ensure that future cases are handled better.

He also expressed some difficulty with the fact that not all the people who botched the worker's case were lawyers. Bergenfield names "John Doe" defendants who may be lawyers, but the only lawyer identified in the complaint is C. Gregory Stewart, who was director of the agency when the foul-ups occurred.

Stewart, who is now counsel to the U.S. Equal Opportunity Employment Commission, has declined to comment on the case.