NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Engaging in unauthorized practice of law is a serious offense originally appeared on NJ Family Issues on January 23, 2012.

Generally, only a duly admitted attorney of New Jersey is entitled to recover compensation for legal services rendered. Appell v. Reiner, 43 N.J. 313, 316 (1964).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Generally, only a duly admitted attorney of New Jersey is entitled to recover compensation for legal services rendered originally appeared on NJ Family Issues on January 8, 2012.

Rule 1:20A-6 provides:

No lawsuit to recover a fee may be filed until the expiration of the 30 day period herein giving Pre-Action Notice to a client . . . . The attorney’s complaint shall allege the giving of the notice required by this rule or it shall be dismissed.

The court cannot permit an attorney to avoid compliance with the rule because to do so would render the rule nugatory. See Nieschmidt Law Office v. Leamann, 399 N.J. Super. 125 (App. Div. 2008).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Lawsuit to recover a legal fee originally appeared on NJ Family Issues on January 8, 2012.

In a criminal trial, pursuant to R.P.C. 3.7, “there must be a true, compelling and legitimate need for the disqualification of defense counsel.” The State’s heavy burden to establish such a compelling need flows out of the “important” right of an accused to be represented by competent counsel of his or her choosing.

The applicable provision, R.P.C. 3.7(a), states that:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

Our State’s case law has long recognized the paramount importance of “a client’s right freely to choose his counsel.” Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 205 (1988) (quoting Gov’t of India v. Cook Indus., Inc. 569 F.2d 737, 739 (2d Cir. 1978)). Consequently, the disqualification of a client’s counsel is considered a harsh remedy that should only be granted sparingly. Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000).

R.P.C. 3.7 recognizes these fundamental principles by authorizing disqualification of the client’s attorney only where that attorney’s trial testimony is “necessary” and “likely.” A purpose of that limited remedy is to prevent unfairness to the opposing party. See Michels, New Jersey Attorney Ethics, comment 31:4-1(a) on R.P.C. 3.7 (2012). A mere representation of an intent to call the attorney as a witness at trial is not sufficient, in and of itself, to demonstrate such necessity and likelihood. See, e.g., J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 230 (App. Div. 2006).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Disqualification of the client’s attorney is authorized only where that attorney’s trial testimony is necessary and likely originally appeared on NJ Family Issues on January 8, 2012.

Attorneys are responsible for monitoring the content of all their communications with the public, including websites designed by others, to ensure that their communications are always consistent with the Rules of Professional Conduct. Attorneys who are not authorized by Rule 1:39 to use the New Jersey Supreme Court Certified Attorney seal, but who display it on their websites or in other communication, are subject to discipline. Attorneys should frequently review the language and design of their websites.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Attorneys are responsible for monitoring the content of all their communications with the public, including websites designed by others, to ensure that their communications are always consistent with the Rules of Professional Conduct originally appeared on NJ Family Issues on January 5, 2012.

In New Jersey, a civil conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage.”

[Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005) (quoting Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364 (App. Div.1993), certif. denied, 135 N.J. 468 (1994)).]

As explained by the Court in Banco Popular, “[i]t is enough [for liability] if you understand the general objectives of the scheme, accept them, and agree, either explicitly or implicitly, to do your part to further them.” Ibid. (quoting Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)). “Most importantly,” the Court continued, “the ‘gist of the claim is not the unlawful agreement, but the underlying wrong which, absent the conspiracy, would give a right of action.’” Id. at 177-78 (quoting Morgan, supra, 268 N.J. Super. at 364). Importantly, “a creditor in New Jersey may bring a claim against one who assists another in executing a fraudulent transfer.” Id. at 178.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

A creditor in New Jersey may bring a claim against one who assists another in executing a fraudulent transfer originally appeared on NJ Family Issues on December 16, 2011.

The creation of an attorney-client relationship is established when “the prospective client requests the lawyer to undertake the representation, the lawyer agrees to do so and preliminary conversations are held between the attorney and client regarding the case . . . .” Herbert v. Haytaian, 292 N.J. Super. 426, 436 (App. Div. 1996).

An attorney-client relationship may be inferred “when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.” Id. at 436. Essentially, “[a]ll that is necessary is that the parties relate ‘to each other generally as attorney and client.’” Petit-Clair v. Nelson, 344 N.J. Super. 538, 543, (App. Div. 2001) (quoting In re Silverman, 113 N.J. 193, 214 (1988)).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The creation of an attorney-client relationship is established when the prospective client requests the lawyer to undertake the representation, the lawyer agrees to do so and preliminary conversations are held between the attorney and client regarding the case originally appeared on NJ Family Issues on December 15, 2011.

Fee arbitration committees have jurisdiction to arbitrate fee disputes between clients and attorneys. R. 1:20A-2(a). The decision of the fee arbitration committee is final and binding on the parties and the Disciplinary Review Board (DRB or Board), alone, has appellate jurisdiction in these matters. R. 1:20A-3(c); see also Linker v. Co. Car Corp., 281 N.J. Super. 579, 587 (App. Div. 1995).

Rule 1:20A-3(d) sets forth the procedure for appealing the determination of the fee arbitration committee to the DRB:

The party taking an appeal shall file a notice of appeal in the form prescribed by the Board within twenty-one days after the parties’ receipt of the Fee Committee’s written arbitration determination. The notice of appeal shall be filed with the Board and shall include a statement of the ground for appeal and an affidavit or certification stating the factual basis therefor.

The grounds for appealing fee arbitration determinations are extremely narrow. Under Rule 1:20A-3(c), no appeal from the determination of a fee committee may be taken by the client or the attorney to the DRB except where facts are alleged that:

(1) any member of the Fee Committee hearing the fee dispute failed to be disqualified in accordance with the standards set forth in R. 1:12-1; or
(2) the Fee Committee failed substantially to comply with the procedural requirements of R. 1:20A, or there was substantial procedural unfairness that led to an unjust result; or
(3) there was actual fraud on the part of any member of the Fee Committee; or
(4) there was a palpable mistake of law by the fee committee which on its face was gross, unmistakable, or in manifest disregard of the applicable law, which mistake has led to an unjust result.

In this regard, the DRB “shall dismiss the appeal on notice to the parties if it determines that the notice of appeal fails to state a ground for appeal specified in paragraph (c) of [Rule 1:20A-3] or that the affidavit or certification fails to state a factual basis for such ground.” R. 1:20A-3(d).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Fee disputes between clients and attorneys originally appeared on NJ Family Issues on December 7, 2011.

La Mantia v. Durst, 234 N.J. Super. 534 (App. Div.), certif. denied, 118 N.J. 181 (1989), describes the factors to be considered when establishing the value of services provided by different law firms in the same case. When determining the proper allocation of the attorney’s fees among firms, the trial court should consider: (1) “the length of time each of the firms spent on the case relative to the total amount of time expended to conclude the client’s case;” (2) the “quality” of the representation; (3) the “result of each firm’s efforts;” (4) “the reason the client changed attorneys;” (5) the “[v]iability of the claim at transfer;” and (6) the “amount of the recovery realized in the underlying lawsuit. . . .” Id. at 540-41.

Allocation of attorney’s fees among law firms that provided services to the same client based on separate contingent fee agreements is generally determined by applying the equitable principle of quantum meruit. La Mantia, supra, 234 N.J. Super. at 537 (citing In re Estate of Poli, 134 N.J. Super. 222, 227 (Cty. Ct. 1975)). Quantum meruit means “as much as he deserves.” Ibid. Assessing how much of a contingency fee a law firm deserves is a fact-dependent inquiry. Ibid. Since quantum meruit is an equitable determination, “hard and fast rules are difficult to apply, let alone construct.” Id. at 539-40 (citing Littlefield v. Kearns, 8 N.J. Super. 198, 203 (App. Div. 1950)).

To assist trial courts in their application of quantum meruit, the court in La Mantia identified criteria to help guide the analysis. See also Bruno v. Gale, Wentworth & Dillon Realty, 371 N.J. Super. 69, 75 (App. Div. 2004). This list, however, is neither exclusive nor exhaustive, ibid., and does not address the situation where two firms unwittingly work simultaneously on the same matter.

If the certifications before a motion judge contain conflicting factual assertions, it may be necessary for the judge to make findings of fact “to insure a proper accommodation to fairness.” Id. at 76. The trial judge’s specific findings of fact and conclusions of law must be based on the evidence presented and must be fully explained on the record. R. 1:7-4. The trial court’s findings must also be specific enough to allow for meaningful appellate review. See Curtis v. Finneran, 83 N.J. 563, 570 (1980) (explaining that Rule 1:7-4 requires the trial court to “state clearly its factual findings and correlate them with the relevant legal conclusions.”).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The factors to be considered when establishing the value of services provided by different law firms in the same case originally appeared on NJ Family Issues on November 19, 2011.

The applicable statutes pertaining to the unauthorized practice of law in effect at the time were N.J.S.A. 2A:170-78 and N.J.S.A. 2A:170-80. N.J.S.A. 2A:170-78 provided in pertinent part as follows:

Any person not licensed as an attorney or counselor at law, and any corporation that:
a. Engages in this state in the practice of law; or
b. Holds himself or itself out to the public, either alone or together with, by or through any other person, whether such other person is so licensed or not, as engaging in or entitled to engage in the practice of law, or as rendering legal service or advice, or as furnishing attorneys or counsel in legal actions or proceedings of any nature;
. . . .
Is a disorderly person.

N.J.S.A. 2A:170-80 provided that “the term `practice of law’ as used in this article includes (without limitation thereto) the engaging in the practice of preparation of wills or conveyances.”

Legal counseling and the drafting of a will are activities traditionally restricted to licensed attorneys. In re Estate of Margow, 77 N.J. 316, 324 (1978) (in which case an executrix was removed from her position based on a finding she engaged in the illegal practice of law by offering legal counsel to the testatrix as to her estate needs and actively participating in the drafting of her will).

In l994, the statutes upon which Margow was based were repealed and were replaced with N.J.S.A. 2C:21-22, which provided, in pertinent part:

a. A person is guilty of a disorderly persons offense if the person knowingly engages in the unauthorized practice of law.
b. A person is guilty of a crime of the fourth degree if the person knowingly engages in the unauthorized practice of law and:
(1) Creates or reinforces a false impression that the person is licensed to engage in the practice of law; or
(2) Derives a benefit; or
(3) In fact causes injury to another.
c. For the purposes of this section, the phrase “in fact” indicates strict liability.

[L. l994, c. 47, § 1.]

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

The unauthorized practice of law originally appeared on NJ Family Issues on November 14, 2011.