Maxine Neuhauser, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Newark office, was quoted in Law360, in “NJ Midyear Report: Disbarment Rethink, Record Access Wins,” by Bill Wichert. (Following is an excerpt – subscription required.)

Following is an excerpt:

The New Jersey Supreme Court in recent months opened the door to reinstating disbarred attorneys and ensured public access to law enforcement records, while lower appellate courts blessed nondisparagement clauses in employment-related settlement agreements and put the burden on personal injury litigants to justify conditions for defense medical examinations.

Those Supreme Court decisions called for examining whether disbarment should remain permanent in knowing misappropriation cases, and for releasing records about law enforcement personnel who were accused of misconduct. In a separate ruling, the justices created a new rule for taxpayers looking to challenge processes to award public contracts.

The state's Appellate Division also issued published opinions finding that a state law barred nondisclosure agreements but not nondisparagement provisions, and holding that it's up to plaintiffs to make the case for recording examinations by medical professionals retained by defendants or having third parties accompany them to the sessions.

Here is a look at some of the major rulings handed down by Garden State courts this year. …

Defense Medical Exams

In the first of the published opinions from the Appellate Division, a panel on May 3 outlined a framework for third-party observation and recording of defense medical examinations. The decision served as an update to the Appellate Division's 1998 B.D. v. Carley opinion….

Maxine Neuhauser of Epstein Becker & Green PC, whose practice includes representing employers, said placing that burden on plaintiffs is appropriate. She noted how the appellate decision touched on concerns that the conditions would impact an examination.

"I think that it's fair to have the plaintiff [explain], in light of those concerns, why [their] need trump[s] those concerns," Neuhauser said. …

Nondisparagement Clauses

A month after the opinion on defense medical examinations, a different appellate panel on May 31 held that settlement agreements in employment-related cases may include provisions requiring parties not to disparage one another….

Neuhauser said the panel correctly interpreted the statute, saying there's a difference between facts and "character assassination."

The law "was focused on not permitting defendants to bury the facts under the blanket of a confidentiality agreement," she said. Disparagement often rises to the level of defamation, and "I would imagine that the Legislature did not want to legalize defamation or to be seen as legalizing defamation or slander," she said. …

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