October 9, 2008
ALESIO POLITI, PLAINTIFF-APPELLANT,
ROBIN KAY LORD, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2569-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2008
Before Judges Kestin and Newman.
Plaintiff Alesio Politi appeals from an order dismissing the only remaining count of his complaint against defendant Robin Kay Lord, Esq. for legal malpractice and from an order denying reconsideration of the dismissal. The basis for the dismissal was the failure to provide an affidavit of merit within an allowable extended sixty day period of time as permitted pursuant to N.J.S.A. 2A:53A-27.
The following facts are relevant to disposition of this appeal. Lord was retained to represent plaintiff on a post-conviction relief petition and any appeal if the petition was denied. The retainer agreement was for $25,000. Plaintiff had been convicted of second degree aggravated arson and was sentenced to an extended term of twenty years with ten years of parole ineligibility, which was to run consecutive to a sentence defendant was already serving for kidnapping. The gravamen of the charge under N.J.S.A. 2C:17-1(a)(3) was for having his residence burned, which had been subject to foreclosure proceedings in order to collect insurance proceeds.
During Lord's representation, she did not file the appeal from the post-conviction relief denial. The matter languished and plaintiff, who was incarcerated, became impatient. Eventually, a request was made for fee arbitration and a hearing was held on March 11, 2003. In a written determination, the fee arbitration committee awarded a refund to plaintiff of $12,000, finding that $13,000 of the $25,000 fee was warranted. Reaching this conclusion, the committee had this to say:
The hours spent on the case struck the panel as somewhat, but not drastically, high for the work involved, however, the panel finds more significantly that the Notice of Appeal was not filed in a timely manner and that Ms. Lord substantially failed to complete the work contracted for. Ms. Lord contends she was fired, however, Mr. Politi claims that she stopped working on his case and essentially quit. The panel finds that Ms. Lord, through the inaction of inadvertently not filing the Notice of Appeal, created a situation where it was objectively reasonable for Mr. Politi to conclude that she stopped working on the case and that she did not fulfill the terms of the contract. The work she did in familiarizing herself with the case cannot be fully utilized by subsequent counsel.
The appeal was ultimately processed through the Public Defender's office with Joan T. Buckley as designated counsel. On May 6, 2004, this court affirmed the order denying post-conviction relief. State v. Politi, No. A-1106-01T4, slip op. (N.J. App. Div. May 6, 2004), certif. denied, 181 N.J. 547 (2004). In so ruling, this court entertained the appeal even though it was untimely filed and rejected the contention that plaintiff's trial counsel rendered ineffective assistance. In so doing, this court expressly addressed the point raised in plaintiff's supplemental brief that an expert on gasoline was not called to show that gasoline on plaintiff's sneakers did not match the gasoline found in his home after the fire. Id. at 27-29. This was an issue of contention between Lord and plaintiff in presenting the post-conviction relief petition.
Plaintiff initiated the present civil action, asserting claims for breach of contract, fraud, extortion and legal malpractice. Except for the legal malpractice claim, the other claims were dismissed in an earlier order of July 1, 2005, with prejudice, for failure to state a claim upon which relief could be granted. That order is not the subject of this appeal.
On appeal, plaintiff contends that no affidavit of merit was required in connection with his claim for malpractice. He asserts that defendant's "NOT (sic) turning over or giving back plaintiff's file with all his paperwork so he could perfect the best possible appeal to be successful and that comes under legal malpractice. . . ." Plaintiff ties the out-of-pocket expenses that he allegedly incurred attempting to obtain transcripts and documents to the effect that such delay may have had on the outcome of his appeal. To establish that theory of liability, an affidavit of merit was necessary and required. N.J.S.A. 2A:53A-27. Here, plaintiff used the malpractice label in his complaint. Even if he had not, the underlying factual allegations of the claim call for proof of a deviation from the professional standard of care for the legal profession. Couri v. Gardner, 173 N.J. 328, 340-41 (2002).
An attorney retaining papers and documents which are the property of the client may do so as a retaining lien under the common law. Nonetheless, the common law retaining lien is a general lien which allows an attorney to maintain possession of the client's property until the entire balance due for legal services, which includes costs and disbursements, is paid.
This lien, however, is passive and not enforceable through legal proceedings. Frenkel v. Frenkel, 252 N.J. Super. 214, 217-18 (App. Div. 1991). The court in Frenkel noted however that the lien is not absolute, and under a common law retaining lien: the property of the client should be returned when that attorney withdraws so that the client can continue with the prosecution or defense of the case. The conflict between the former attorney, on the one hand exercising the common law retaining lien, and the client, on the other hand demanding the return of the file, should not be allowed to delay the prosecution of the underlying action. The rights of the parties must give way to the overriding consideration of the prompt and effective administration of justice. [Id. at 219.]
Indeed, the court in Frenkel ordered that the former attorney turn over the client's file, which would not result in extinguishing the attorney's common law retaining lien. Ibid.
Here, Lord was involved in a fee arbitration proceeding in which a refund of $12,000 was ordered so that the issue of retaining any of the documents was not related to an unpaid fee. From the present record it appears that whatever documents that Lord possessed were transmitted to Joan Buckley, the designated counsel for the Public Defender who prosecuted the appeal in this court. According to the record, Joseph Fell, an attorney who may have requested documents, was never substituted as counsel and an effort to deliver papers to him by Lord was unsuccessful. While we are in no position to determine the facts on this record of the timely transfer of documents to the superseding attorney, we do not have to resolve those underlying factual issues because plaintiff has tied his claim for out-of-pocket expenses to the impact any delay in transmittal would have had on the outcome of his appeal. To determine that aspect of his complaint, it was necessary to secure an affidavit of merit to pursue this legal malpractice cause of action. Having not done so, the dismissal of the legal malpractice claim was appropriate.
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