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Fischer v. Fischer

February 22, 2005


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, EsseX County, Docket No. FM-07-805-03.

Before Judges Wefing, Fall and C.S. Fisher.

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


Submitted December 1, 2004

We granted leave to appeal in this matter to consider whether or to what extent a Family Part judge has the discretion to direct the return of a retainer when permitting an attorney's withdrawal from a matrimonial action and, also, whether a Family Part judge has jurisdiction to conclusively determine any nascent fee disputes in this setting. The issue is of importance not only to those involved in this action, but also to the matrimonial bar, as evidenced by the appearance of the New Jersey State Bar Association as amicus curiae.


The questions presented by this appeal arise from a very old and highly contentious matrimonial action. For present purposes, we need not plumb the convoluted history of this case*fn1 or other related actions.*fn2 Instead, we predominantly focus on the fact that appellant Elliot H. Gourvitz, P.A. (Gourvitz) was retained by defendant Annette C. Fischer to represent her in this action in or about September 2003 and that, on February 11, 2004, after Mrs. Fischer claimed he was dishonest and that he had deceived her regarding the terms of the retainer agreement, Gourvitz moved to be relieved as counsel.

Mrs. Fischer opposed the motion. In exploring the reasons for her position, the trial judge learned that she no longer wanted to be represented by Gourvitz but felt she had no alternative:

MS. FISCHER:... I have no funds to go anywhere else. I mean,

THE COURT: If I gave you funds to go someplace else, would you still want [Gourvitz] to represent you?

MS. FISCHER: No. Because I never saw the retainer [agreement]. I paid first, and I didn't know all those things were in the retainer, and I was promised by Mr. Gourvitz he would hold the check. He wanted it. He would hold it, and then I could read the retainer in a week. Well, he cashed the check within 24 hours and I just, I have no funds to go anywhere else.

THE COURT: Okay. Thank you. You're going to get funds. I'm relieving the Gourvitz firm as Counsel, and I'm directing no later than April 1st the entire $10,000 is to be returned to Mrs. Fischer, of which $2,500 will be paid to [an expert retained on Mrs. Fischer's behalf].

When Gourvitz moved for reconsideration, the trial judge expanded on his earlier ruling:

A review of the retainer agreement... raised very serious questions in the Court's mind as to its fairness to the client, such as retention of $5,000 once work commenced, regardless of the time spent*fn3 and the reservations were so much so that the Court has forwarded a copy of that agreement to the Ethics Committee for its review.....

The basis for Mrs. Fischer's opposi[tion] was simply that she had to borrow the $10,000 to retain Mr. Gourvitz and that she had no money to hire new Counsel. This is an old case. Frankly, in August, it will be four years old. It is a complex case and is nowhere near ready for trial due to a continual[] parade of attorneys coming in and out of the case.

More importantly, [there has been] a pattern of behavior on behalf of the litigant, not the attorneys, to demand recusal of several Judges the moment an adverse decision is given*fn4........

It is against this backdrop that the Court ordered the $10,000 returned to enable the defendant to immediately retain new Counsel, thereby granting Mr. Gourvitz the request to be relieved and satisfying the objection of the litigant, while at the same time, keeping control of the case and moving it to conclusion. Simply put, [but for the return of funds from Gourvitz], Mrs. Fischer would be incapable of representing herself.

These comments and the remainder of his decision on the motion for reconsideration demonstrate that the trial judge permitted Gourvitz to be relieved as counsel by weighing a number of factors, including, most notably, the age of the case, the further significant delays that could be anticipated if Mrs. Fischer's retainer was not returned, and the fairness of the retainer agreement itself. Based on these factors, the trial judge viewed his April 13, 2004 order as an appropriate exercise of his discretion in ruling upon the motion to be relieved as counsel, R. 5:3-5(d)(2), and in effectively managing what is indisputably a problem case.

It is particularly relevant that, in denying the motion for reconsideration, the trial judge emphasized that he had not finally adjudicated the parties' future fee disputes, as the following colloquy reveals:

MR. OUTHWAITE: Your Honor also men tioned... fee arb[itration]. We have a very good and mandatory fee arbitration procedure in the State of New Jersey.

THE COURT: I understand that. I will allow for that, but I'll tell you, this Court has a primary obligation to move the case to closure. This is a four-year-old case. It's an old, old case........

MR. OUTHWAITE: What Your Honor could have done [in granting the motion to be relieved] was say that the fee arbitration committee was to meet on the next day because

THE COURT: Oh, right.

MR. OUTHWAITE: It could have been done.

THE COURT:... There's no way first of all, it would be arrogant for this Court to compel [the] fee arbitration [committee] to move other than in the ...

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