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Ehrlich v. Kids of North Jersey

March 29, 2001

REBECCA EHRLICH, PLAINTIFF/APPELLANT,
v.
KIDS OF NORTH JERSEY, INC., KIDS CENTERS OF AMERICA, INC., KIDS OF BERGEN COUNTY, INC., MILLER NEWTON, RUTH ANN NEWTON, RAYMOND EDELMAN, M.D., A.L. GALITZIN, M.D., HARRY PANJWANI, M.D., ZISALO WANCIER, M.D., ABC CO. 1 THROUGH 20 (BEING FICTITIOUS BUSINESS ENTITIES WHOSE IDENTITIES ARE CURRENTLY UNKNOWN) AND JOHN AND JANE DOES 1 THROUGH 30 (BEING FICTITIOUS PERSONS WHOSE IDENTITIES ARE CURRENTLY UNKNOWN), DEFENDANT/RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-4592-95698-99.

Before Judges Baime and Wallace, Jr.

The opinion of the court was delivered by: Wallace, Jr., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 22, 2001

This case involves an attorney's fee awarded to plaintiff's counsel in a malpractice action that was settled on the eve of trial for 4.5 million dollars. Applicant with the approval of plaintiff, sought an enhanced fee of one-third. The Assignment Judge referred the application to the trial judge, who granted a fee allowance but less than the amount requested. Applicant seeks a remand contending that the trial judge calculated the fee based on a belief that pursuant to R. 1:21-7(f), the fees on recoveries in excess of $2,000,000 were capped at 20% of the recovery without regard to whether such calculation produced a reasonable fee in light of all the circumstances. We remand for reconsideration.

Plaintiff engaged applicant to represent her in a medical negligence case involving allegations of civil rights violations in plaintiff's treatment by defendants. She signed a standard contingency fee agreement with applicant Medvin & Elberg. A complaint was filed in June 1995. After extensive discovery the matter was settled just prior to trial in December 1999 for the sum of $4,500,000.

Pursuant to R. 1:21-7(f), applicant moved for a fee allowance in excess of the fee schedule established by R. 1:21-7(c).*fn1 This rule currently provides in part:

In any matter where a client's claim for damages is based upon the alleged tortious conduct of another, . . . , an attorney shall not contract for, charge, or collect a contingent fee in excess of the following limits:

(1) 33 1/3% on the first $500,000 recovered;

(2) 30% on the next $500,000 recovered;

(3) 25% on the next $500,000 recovered;

(4) 20% on the next $500,000 recovered; and

(5) on all amounts recovered in excess of the above by application for reasonable fee in accordance with the provisions of paragraph (f) hereof; [R. 1:21-7(c).]

Applicant sought a fee of one-third of the net recovery due to the unique nature of the case, the favorable settlement for plaintiff, and the public benefits that were fostered by the litigation. Plaintiff and her parents supported the fee application. Plaintiff submitted a certification wherein she expressed she ...


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