On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Approved for Publication August 1, 1996.
Before Judges Shebell, Stern and Newman. The opinion of the court was delivered by Stern, J.A.D. Shebell, P.j.a.d., Concurring.
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by STERN, J.A.D.
Plaintiff law firm appeals from a judgment of the Law Division in favor of the estate of Irene Pinter "dismissing with prejudice any and all claims for a legal fee by the [law firm] against the [estate] ...." The underlying litigation, which gave rise to the firm's claim for attorney's fees, involved an automobile negligence-wrongful death action filed on behalf of the estate by the firm in 1990.
In November 1989, Andrew Fraser started employment as an associate attorney with the firm. At that time, Fraser was engaged to be married to Lisa Pinter (now Lisa Fraser), daughter of Irene and Frank Pinter who were killed in an automobile accident in February 1990. Lisa Pinter was named executrix of her parents' estates. In March 1990 Fraser had a conversation with William Voorhees, "the sole equity partner in the firm and the only partner authorized to commit the firm on the question of a fee," regarding the representation of the estates in connection with the automobile negligence-wrongful death matter (generally called the "Tiso case" because of a consolidated complaint).
Shortly thereafter, with Voorhees' approval, the firm assumed the representation of the estate of Irene Pinter in the Tiso matter. Fraser was permitted to handle the case with the assistance and supervision of an experienced senior associate, Robert McAndrew. *fn1 Andrew Fraser and Lisa Pinter were subsequently married.
Fraser maintained a record of the time spent on the case. He submitted these timesheets along with those on other cases and, pursuant to a billable hour incentive arrangement, received a bonus in 1991 of $1,732.50. *fn2
In December 1992, Fraser left Voorhees & Acciavatti and became associated with another firm. On January 13, 1993, a substitution of attorney was filed. The Tiso case was ultimately settled by Fraser's new firm in February 1993.
When Fraser decided to leave the firm, a dispute arose between plaintiff and Fraser with regard to attorney's fees in connection with the case. Fraser and Voorhees disagreed about their understanding of the fee arrangement. On April 13, 1993, a consent order was entered placing $68,996.92 from the proceeds of the settlement in escrow "until such time as there is agreement among the attorneys for plaintiffs Pinter, past and present, on the proper allocation of attorneys' fees ...." *fn3
An evidentiary hearing was held on the question of "counsel fees." Fraser testified that during his meeting with Voorhees regarding the firm's undertaking of the case, Voorhees was agreeable to the representation, but wanted Fraser to work closely with McAndrew, a lawyer with considerable experience in tort litigation. According to Fraser, Voorhees indicated he could handle the case with McAndrew's supervision "on a no fee basis as a professional courtesy." Voorhees only expected him to "keep current ... on all of [the] expenses associated with the case."
Voorhees testified as to a different understanding of the fee agreement. He advised Fraser that the firm would give him a "professional courtesy discount as [they] would with any other attorney in the firm on any kind of a legal matter ... which the firm handled on behalf of the close family member." According to Voorhees,
I suggested to him that the appropriate way to proceed was to take a look and see what the end result was, take a look and see how much effort the firm had to put into it, and that we would arrive at an appropriate discount of -- for the normal contingent fee. And [Fraser] agreed to that.
Lisa Fraser and former attorneys at the firm testified on behalf of the estate. They related their understanding that the firm was going to undertake the representation of the estate on a "no-fee" basis as a "professional courtesy." However, they were not privy to the Discussion about fees between Voorhees and Fraser. Diane Acciavatti testified on behalf of the firm. She recalled that because Fraser "was an associate of the ...