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Zaccaro v. Pavlick

July 27, 2010


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3928-03.

Per curiam.


Argued June 8, 2010

Before Judges Grall, Messano and LeWinn.

This appeal involves a fee dispute between attorneys. On March 17, 2003, appellant Herbert J. Kessler, of Kessler, DiGiovanni & Jesuele, LLP, was retained by plaintiff Courtney Ambrosio Zaccaro to prosecute a dental malpractice suit against Dr. Donald Pavlick, Jr., D.M.D. (Pavlick, Jr.). Kessler and plaintiff entered into a written contingency fee agreement.*fn1

On June 2, 2003, Kessler filed suit but soon learned that Pavlick Jr. had died; on June 12, Kessler filed an amended complaint against Dr. Donald Pavlick, Sr. (Pavlick, Sr.), administrator of Pavlick, Jr.'s estate. During the next three years, Kessler engaged in discovery, retained experts, and otherwise prosecuted the malpractice action. However, disputes arose between him, plaintiff, and plaintiff's family members.

The nature of the disputes was set forth in Kessler's certification that accompanied his August 1, 2006 motion to be relieved as counsel. He explained that Pavlick, Jr. had treated plaintiff from April 24, 2001 through July 13, 2001. Kessler had retained Dr. Howard Pomeranz as plaintiff's dental expert, and Pomeranz opined in a series of reports that Pavlick, Jr. had deviated from accepted standards of care. Kessler detailed in his certification the remaining limited discovery that needed to be completed in the case.

During discovery, plaintiff learned that Pavlick, Jr. had entered into a June 6, 2001 consent order with the New Jersey Board of Dentistry (the Board) because of his cocaine addiction. Among other things, that consent order provided that Pavlick, Sr. would supervise his son's practice, and that Pavlick, Jr. would provide urine samples twice weekly for drug screening. It was also learned that Pavlick, Jr.'s death, on May 31, 2003, was caused by "acute cocaine intoxication."

Kessler had earlier furnished copies of the drug screenings conducted pursuant to the consent order to the motion judge who reviewed them in camera. In a letter dated February 8, the judge wrote to Kessler, his opponent in the malpractice action, and the Deputy Attorney General representing the Board, that "[a]ll of the test results during the period of the alleged malpractice were negative."*fn2

Kessler further certified that "[o]n at least three occasions during the . . . lawsuit," plaintiff demanded that he "attempt to introduce evidence at trial of . . . Pavlick, Jr.'s use of cocaine"; that he amend the complaint to add Pavlick, Sr. as an individual defendant; that he use a "'Timeline' created by . . . [plaintiff]" at trial; and that he "attempt to introduce at trial all acts of negligence committed by . . . Pavlick, Jr., whether or not th[e] acts were a proximate cause of [plaintiff's] injuries . . . ." Kessler's certification also claimed that plaintiff's uncle, a retired FBI agent, had written to him and threatened to discharge him if "[he] did not follow the directions contained in his correspondence."

Citing the judge's review of Pavlick, Jr.'s drug screens, Kessler claimed he "w[ould] not be able to satisfy [plaintiff's] continuing demand that [he] introduce such evidence at trial." Kessler certified that Pomeranz opined there was no theory of liability that could be asserted against Pavlick, Sr., and that Pavlick, Jr.'s negligence was limited to a two-day period, thus, making plaintiff's "Timeline" irrelevant.

Kessler referenced a letter sent to him by plaintiff in July in which she accused him of "not working in her best interests," and "turning a deaf ear to her requests." Kessler concluded that he could not "[e]thically . . . undertake the course of action that plaintiff . . . demanded," and sought to be relieved. He further explained that his firm had spent "in excess of $45,000[] to date" in "advanced costs." Kessler noted that he would "make application for reimbursement of costs and a legal fee, based on quantum meruit, at the appropriate time."

At the October 20, 2006 oral argument on the motion, Kessler, plaintiff and her mother appeared. Plaintiff opposed the motion to be relieved and presented written opposition and an affidavit in which she explained her frustration with Kessler's alleged failure to "bring into evidence . . . Pavlick, Jr.'s many significant acts of negligence that [we]re closely connected with [her] injuries . . . ." Plaintiff further claimed that she wanted Kessler to "respond[] to suggestions that he use another definition of [p]roximate [c]ause[,]" but that Kessler "left [her] in the dark . . . ." She attached copies of her correspondence to Kessler. Plaintiff's mother also addressed the judge and essentially contended that Kessler had never provided a reasonable explanation regarding their requests.

After reserving decision, the judge placed an oral opinion on the record that same day. Citing RPC 1.16(b)(4),*fn3 he concluded that Kessler's "application of the rules of evidence to the facts of th[e] case" was correct. "Despite [Kessler] telling [this to] plaintiff, both plaintiff and her uncle still insist[ed] that [Kessler] follow a course of action inconsistent with ethical behavior and in contravention of the rules of evidence."*fn4 Noting a "fundamental disagreement" between Kessler and plaintiff, the judge entered an order (the October 2006 order) permitting Kessler and his firm to withdraw from the litigation and "preserve their ...

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