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Strauss v. Fost

Decided: April 17, 1986.

GEORGE STRAUSS, PLAINTIFF-APPELLANT,
v.
KENNETH FOST, ESQ. DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Special Civil Park, Morris County.

Dreier, Bilder and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Plaintiff has appealed from a judgment for defendant after a bench trial in this legal malpractice action. We reverse based upon our determination that the trial judge incorrectly assessed the duty owed by defendant to plaintiff.

In 1982 plaintiff's wife was injured in an automobile accident. Plaintiff was driving the vehicle in which his wife was a

passenger, and one Sherry Sansone was the driver of the other car. Plaintiff's wife instituted an action for personal injuries against plaintiff and Sansone. Plaintiff's carrier retained defendant, an experienced civil litigator, to defend plaintiff in that action. At the time plaintiff also had a claim for property damage and alternate transportation in the amount of $3,636.66. As soon as defendant was retained, he informed plaintiff of that fact and further stated:

If you were injured in the accident and wish to make a claim against the driver of the other vehicle, or anybody else, it is essential that your claims be asserted as part of this action. If you do have any claim that you wish to assert, please have your attorney contact me so that I may cooperate with him.

Plaintiff, a 58-year old retired carpenter, unschooled in the law, testified that he did not understand the import of the letter. A few months later he first spoke to other attorneys and finally responded to the letter by calling defendant and asking his secretary if defendant would represent plaintiff as to the property damage claim. The secretary allegedly told plaintiff that the charge would be approximately 20 or 25 percent of the amount recovered. Assuming that "this was a pretty good bargain," plaintiff wrote a letter requesting defendant to represent him in the property damage claim against Sansone, and enclosed the repair bills for the car. Defendant in due course applied for and was granted leave to assert a cross-claim for property damage. Just prior to filing the claim defendant wrote to plaintiff explaining the fee arrangements:

I have your letter of April 8th, and have filed a motion asking the court to permit the claim to be made.

My fee for handling the claim for damages to your vehicle cannot be paid by your insurance company. You can either pay me for my services at the rate of $85.00 an hour or agree to pay me a contingent fee of one-third of any recovery up to $50,000.00. Whether you prefer the hourly rate or the contingent fee, you will have to pay the expenses in connection with the property claim.

If you prefer the hourly rate, please send me a retainer of $250.00. If you prefer the contingent fee of one-third, send me a note informing me . . .

I will not file the claim for your damages until you have informed me of ...


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