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Buckelew v. Grossbard

Decided: April 18, 1983.

PATRICIA J. BUCKELEW, PLAINTIFF,
v.
PAUL J. GROSSBARD, M.D., DEFENDANT



Simpson, A.j.s.c.

Simpson

This is an application under R. 1:21-7(f) for approval of attorneys' fees in excess of the contingent fees allowable pursuant to R. 1:21-7(c), and for allocation thereof between successive counsel in a medical malpractice action. Much of the history of this case appears in Justice Clifford's opinion for a unanimous Supreme Court in Buckelew v. Grossbard, 87 N.J. 512 (1981), that reversed the trial court's judgment notwithstanding verdict and remanded for a new trial.

Prior to the November 1, 1976 effective date of the present R. 1:21-7(c) contingent fee scale, plaintiff signed a contingent fee retainer with Lawrence S. Schwartz, Esq. providing for the then authorized maximums as follows:

(1) 50% on the first $1,000 recovered

(2) 40% on the next $2,000 recovered

(3) 33 1/3% on the next $47,000 recovered

(4) 20% on the next 50,000 recovered

(5) 10% on any amount recovered over $100,000

In 1975 Schwartz referred the case to Zarin and Maran, Esqs. (hereafter "Maran") and Joe Maran, Esq. handled the matter through trial and the judgment non obstante veredicto in July 1978. On August 16, 1978 plaintiffs signed a letter retaining Kohn, Soperstein & Needle, Esqs. (hereafter "Needle") that, in pertinent part, provided for a contingent fee "as provided by the rules of court"; that compensation of Maran "shall be paid out of any total fee realized from a successful recovery and settlement," and that Needle would negotiate same with Maran. The letter retainer did not make reference to the contingent fee rule sliding scale, but the November 1, 1976 amendment to R. 1:21-7(c) had increased from 20% to 25% the maximum fee on the

second $50,000 recovered in addition to other nonpertinent changes as to recoveries over $100,000. Since most of the attorneys' services took place after the current percentages of R. 1:21-7(c) became effective, it is appropriate to consider the R. 1:21-7(f) application in the light of the present scale. The case was ultimately settled for $100,000, Maran disbursements were $1,038 and Needle disbursements totalled $1,192.25. The net aggregate sum of recovery under R. 1:21-7(d) was therefore $97,769.75 which would yield an allowable fee under the current rule as follows:

R. 1:21-7(c) % On Allowable

(1) 50 $1,000.00 ...


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