On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication June 12, 1995
Before Judges King, D'Annunzio and Eichen. The opinion of the court was delivered by King, P.j.a.d.
The opinion of the court was delivered by: King
We granted leave to appeal to examine a Law Division ruling remanding this matter to the District Fee Arbitration Committee. See R. 1:20A-1 to -6. We conclude that the Law Division Judge had no jurisdiction to review the decision of the Fee Committee's arbitration panel and reverse that order. We also conclude that transfer to the Disciplinary Review Board (DRB) is the proper procedural course at this juncture. See R. 1:13-4(a) and (b).
Natan Atzbi, Jack Gross and David Derhi were partners in a small corporation, The Company Car, which provided limousine and radio car transportation. The Company Car is a New York corporation with most of its work in Brooklyn. Atzbi had disagreements with his two partners, Jack Gross and David Derhi. When the disagreements could not be resolved, Atzbi agreed to buy out his partners. Because Atzbi did not pay his former partners, Gross and Derhi sought to take the company back. They filed a complaint and order to show cause in Monmouth County, Chancery Division on April 28, 1992. Jerome Kowalski, a New York attorney, then referred Atzbi to Paul Linker of Robinson, St. John & Wayne (Robinson), New Jersey counsel. Linker remarked in a September 22, 1992 letter to Atzbi, "I was contacted by Jerry less than two hours before the initial court hearing in Freehold and asked to represent your interests and The Company Car's." Linker met with Atzbi on April 28, 1992 and agreed to represent him. Linker told Atzbi to deliver a check for a $7,500 retainer by May 4, 1992. Linker also attended a document inspection on behalf of The Company Car on May 1, 1992 in New York City.
On May 6, 1992 Linker sent a letter to Atzbi discussing fees and billing rates and again requested $7,500 as a retainer. Atzbi allegedly assured the firm that the $7,500 would be paid. On May 8, 1992 Linker filed a cross-motion on behalf of The Company Car in the Monmouth County action to (i) transfer the action to the Law Division; (ii) stay the action pending the final outcome of a New York litigation involving the ownership of The Company Car stock; (iii) discharge and vacate the restraints; and (iv) dismiss Atzbi from the First Count of the Complaint and dismiss the Third and Fourth Counts of the Complaint. Linker appeared on behalf of The Company Car before Judge McGann in Monmouth County on May 13, 1992 on the order to show cause.
Linker sent a letter on May 18, 1992 to Atzbi with a transcript of the Judge's relatively unfavorable decision, again requesting the $7,500 retainer. On June 2, 1992 Linker wrote to Jerome Kowalski telling him that the firm had obtained an extension of time until June 13, 1992 to file an answer to the complaint. Linker also told Kowalski that if Atzbi did not pay the retainer, the firm would withdraw from the case. Linker wrote to Kowalski on June 17, 1992 telling him that the Judge denied his motions, that he obtained an extension through June 30, 1992 to file an answer, and again that Atzbi still had not paid the retainer.
Linker and his firm withdrew from the representation of Atzbi and The Company Car on about July 31, 1992. Linker sent an itemized bill for legal services to Atzbi and The Company Car on September 22, 1992. Atzbi eventually settled his differences with Gross and Derhi; Atzbi and Gross are now partners in the operation of the corporation.
On April 1, 1993 plaintiffs Linker and Robinson sent another letter to The Company Car requesting payment of their legal fees totalling $24,756.35. The letter also advised defendant that it had "the option to pursue this matter by way of filing a request for a fee arbitration proceeding with the local Fee Arbitration Committee." On April 14, 1993 the Fee Arbitration Committee sent The Company Car the standard documents on fee arbitration.
The fee arbitration brochure discussed the format of the hearings and described the obligation of the client to
contact all witnesses you will rely on and to insure their appearance at the hearing. If the witness is important and will not appear voluntarily, you may ask the fee secretary to issue a subpoena. You may also compel the production of documents through subpoenas.
The Company Car claims in its brief that "representations were made to John Gross, the president of The Company Car, by the Fee Arbitration Committee that the committee could subpoena witnesses critical to presenting a defense to the ... fees..." The Company Car apparently is referring to the statements made in the fee arbitration brochure' sent by the Fee Arbitration Committee on April 14, 1993. There are no references to oral representations to Gross or his company.
Gross filed for fee arbitration on April 20, 1993. On the fee arbitration form he said that he disagreed with Robinson's bill because
a) We never hired them. Our N.Y. Lawyer sent me to him to handle this.
b) "never" discussed price or retainer.
c) Said case was simple would "squash" plaintiff. Case ...