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In re Li

September 8, 2008

IN THE MATTER OF FENG LI


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 To provide context to this appeal, we recite the facts of the underlying litigation taken from our unpublished opinion in that matter.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 ...


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