former lawyer sues superceding lawyer for tortious interference

Lawyer whose Client Bolts Can’t Sue Lawyer for Tortious Interference

N.J. Law Journal reports:

A state appeals court has all but slammed the door on suits by one lawyer against another, on grounds of tortious interference with contract, for taking a client away.

No cause of action exists unless wrongful means, such as fraud or defamation, are alleged, the Appellate Division said in ordering dismissal in Nostrame v. Santiago, A-2298-10, on June 10. What’s more, a plaintiff lawyer failing to allege “wrongful means” won’t be allowed to conduct discovery to determine whether they may have been used. The judges said:

“[P]ermitting discovery to proceed based on the kind of conclusionary allegations contained in plaintiff’s complaint could have a chilling effect upon a client’s exercise of the right to select counsel of his or her choosing,”

The story

In the case just decided, plaintiff Frank Nostrame, a Jersey City solo, was retained in January 2007, on a contingent fee agreement, to represent Natividad Santiago in a medical malpractice matter. Nostrame filed her complaint on May 23. But on May 31, Santiago sent Nostrame a letter discharging him and directing him to release his file to Mazie, Slater, Katz and Freeman of Roseland.

Mazie Slater saw the case through to a $1.2 million settlement in December 2009, and collected $358,396 in legal fees in accordance with the agreement.

Nostrame asserted a $11,624 lien for his work, the trial court agreed he was entitled to it and Mazie Slater paid him.

In February 2010, Nostrame sued for tortious interference, alleging “Santiago was induced to discharge plaintiff and dissolve the contingent fee contract between them by [Mazie Slater].” The suit named Mazie Slater, Santiago, her daughter Betsy, and “John Does” who “without legal justification interfered with the contractual relation between [Santiago] and plaintiff [by] contact[ing] the office of [Mazie Slater] for the purpose of creating a contractual relation between [Mazie Slater] and [Santiago] and to terminate the contractual relation between [Santiago] and plaintiff.”

App. Div. Rationale

Hudson County Superior Court Judge Edward O’Connor Jr. denied Mazie Slater’s motion to dismiss and the Appellate Division granted leave for interlocutory appeal.

Skillman found no tortious interference under the four-factor test set out in Restatement § 768(1), namely (a) the relation concerned a matter involved in the competition between Mazie Slater and Nostrame; (b) Mazie Slater was not alleged to employ wrongful means; (c) Mazie Slater’s action does not create or continue an unlawful restraint of trade and (d) Mazie Slater’s purpose was at least in part to advance the firm’s interest in competing with Nostrame.

Plaintiff does not allege in either his complaint or his certifications in opposition to Mazie Slater’s motion to dismiss that Mazie Slater employed any wrong ful means in whatever communications it may have had with Santiago before she discharged plaintiff and retained Mazie Slater, said Skillman, joined by Judges Anthony Parrillo and Joseph Yannotti.

Nostrame argued that he should be allowed to proceed to discovery even though he did not allege wrongful means were used. In an interview, he says Mazie Slater told Santiago not to talk to him, so it was impossible to sufficiently plead facts without discovery.

But Skillman said Nostrame was bound to assert facts rather than a general cause of action. “A plaintiff cannot simply assert that any essential facts that the court may find lacking can be dredged up in discovery,” he said.

Commentary

Who amongst us hasn’t suffered the same fate as Nostrome? And, who amongst us hasn’t wanted to sue “the bastard” that stole the case?

But, who amongst us actually sued the evil lawyer for tortious interference, or for any cause of action related to the “theft?”

We are lawyers, who are held to a high standard of conduct by the Rules of Professional Conduct, and our own sense of professionalism.  A client is king/queen, and should be. If a client chooses to seek another lawyer to fight the good fight, they have a right to make a switch. By the same token, the discharged lawyer is entitled to be reasonably compensated for time spent, and expenses advanced on behalf of the client.

A lawyer is not entitled to the “benefit of his contingent fee bargain” upon discharge; which would obviously have a chilling effect on the old switcheroo. The courts are clear on that issue.

This entire sad situation is not about lawyers, and shouldn’t be. It is about a client’s right to change lawyers in midstream; which should remain intact, and devoid of any threats of retribution.

If it were me, after getting over my initial reaction, I would want to know what I could have done to avoid the switch; and change my behavior if it contributed to my client’s dissatisfaction with my representation.

Good decision.

Read more…

Nostrame v Santiago-a2298-10-lawyer sues another lawyer for tortious interference

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About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information, tips and tricks to help drivers beat NYC parking tickets.

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