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In re Li


September 8, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2136-06.

Per curiam.


Submitted August 20, 2008

Before Judges Miniman and Lihotz.

Appellant Feng Li, a New Jersey licensed attorney, appeals from an order that sanctioned him for failure to appear and required him to pay legal fees to opposing counsel. We affirm. To provide context to this appeal, we recite the facts of the underlying litigation taken from our unpublished opinion in that matter.

The underlying matter was scheduled for trial on March 26, 2007. [Katharine Lai's] counsel Feng Li appeared. Jury selection was to commence the next day. On March 27, [Lai] appeared but [Li] did not. [Lai] stated counsel was ill. The trial judge delayed jury selection for the following day and explained to [Lai] her attorney must contact the court.

[Lai] appeared without counsel on the rescheduled trial date. The trial judge inquired about her efforts to contact [Li]. [Lai] again suggested [Li] was ill and she could not contact him. The judge told [Lai] the jury would be selected that day once the panel was released from jury orientation and the trial would commence the following week. The court recessed. The jury panel was seated and the court reconvened the matter. The judge learned [Lai] had left the courthouse. Thus, the trial judge dismissed the matter with prejudice and excused the jury panel. The judge also scheduled a hearing on the contempt citation issued to [Lai]'s counsel, [Li]. The order of dismissal was filed on March 30, 2007.

The record does not contain the contempt proceeding, however, we are provided with correspondence from Mr. Li. He states his representation terminated when [Lai] suggested he feign illness to postpone the trial. He failed to advise the court he would not be appearing. [Katharine Lai Realty v. 73-75 Bloomfield Ave. Assocs., Gerald Smith, Steven Adams and Lisa Li, No. A-6113-06T2 (App. Div. Apr. 4, 2008) (slip op. at 1-2).]

Following a hearing on April 16, 2007, the trial judge held appellant in contempt of court, entered a $500 sanction, and required the payment of $2,041 to opposing counsel for legal services rendered on March 27 and 28, 2007, the dates appellant failed to appear for trial.

Appellant argues the trial court erred in sanctioning him for his nonappearance because "the court knew I was not representing Ms. Lai[.]" Further, he suggests the order to pay his adversary's fees was "unsupported by any specific findings of fact." Arguing that he is being unfairly penalized for his "honesty" with the court, plaintiff seeks reversal of these determinations.

The scope of our review of a contempt conviction is found in Rule 2:10-4, which provides that "every summary conviction by a court for contempt shall be reviewable on the law and the facts," and grants to this court the power to render any "order . . . it deems just under the circumstances." See also In re Educ. Ass'n of Passaic, Inc., 117 N.J. Super. 255, 259 (App. Div. 1971), certif. denied, 60 N.J. 198 (1972).

Appellant's claim that his legal representation was terminated the morning of trial, obviating his appearance, is specious. As noted by the trial judge, withdrawal from an attorney-client relationship is governed by Rule 1:11-2(a)(2), which states in pertinent part:

[A]fter . . . the fixing of a trial date in a civil action, an attorney may withdraw without leave of court only upon the filing of the client's written consent, a substitution of attorney executed by both the withdrawing attorney and the substituted attorney, a written waiver by all other parties of notice and the right to be heard, and a certification by both the withdrawing attorney and the substituted attorney that the withdrawal and substitution will not cause or result in delay.

Appellant complied with none of the rule's provisions. Instead, he told his client to explain the circumstances of his absence. He neither contacted the court nor his adversary. Appellant's actions are untenable. Further, such contumacious conduct is not excused because Ms. Lai suggested appellant feign illness.

A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. [RPC 1.16(c).]

For reasons that are not clear, appellant was perplexed when faced with the unethical proposal of his client. Rather than professionally presenting the circumstances to the court, appellant simply choose not to appear. Our review of the record discloses no flaw in the trial court's findings or conclusions to order contempt and the accompanying $500 sanction. We would be remiss if we did not comment on appellant's reaction to the court's ruling. Appellant's repeated statement that if again faced with this type of situation, he would "lie to [the] court" is not only unethical, it is greatly disturbing.

Even the suggestion of such conduct tears at the character of the speaker and raises grave doubts regarding his ability to properly comport himself as an attorney in this State. Appellant's conduct warrants review by the Morris County Committee on Professionalism.

Turning to appellant's challenge to the order to pay opposing counsel's fees as a result of appellant's failure to appear, that issue too, is well defined by the Court Rules, which provide:

If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party on the call of a calendar, . . . proceeding scheduled by the court, or on the day of trial . . . the court may order any one or more of the following: (a) the payment by the delinquent attorney or party or by the party applying for the adjournment of costs, in such amount as the court shall fix, to the Clerk of the court made payable to "Treasurer, State of New Jersey," or to the adverse party; (b) the payment by the delinquent attorney or party or the party applying for the adjournment of the reasonable expenses, including attorney's fees, to the aggrieved party . . .

[R. 1:2-4.]

See also Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 388 (App. Div. 1990). When attorney fees are at issue as a result of a contempt conviction, we apply a deferential standard: "'fee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

Counsel's fee certification sought payment for a total of nine hours incurred on March 27 and 28. The rate and hours incurred were found reasonable and necessary. We conclude the trial judge properly exercised his discretion in entering the order granting an allowance of $2,041.



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