On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. 1979-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2010
Before Judges Graves and Waugh.
Plaintiff Mohamed W. Tarakji appeals a verdict of no cause of action in connection with his suit against defendant Feldman & Fiorello, LLC (F & F), his former attorneys. We affirm.
Tarakji consulted F & F in connection with litigation he wanted to bring against his former employer, which would have included claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. He met with William A. Feldman, a partner, and Frank Butterfield, an associate. He told them about documents and audiotapes that he maintained would support his claims.
Tarakji and F & F entered into a retainer agreement dated September 11, 2008. The agreement provided that the firm would assist in attempting to settle the matter or, if unsuccessful, in filing a claim. It called for a non-refundable retainer in the amount of $500, with an additional $2,000 to be paid over time once Tarakji found new employment. Of particular significance for the purposes of this case, the agreement contained the following language in Paragraph 5: "This agreement does not obligate either you or this firm to file or proceed with any litigation if same is deemed for any reason not to be legally or factually sustainable."
Tarakji met with Butterfield on several occasions. Butterfield gave the following testimony at the trial:
Predominantly what it was developed from is he had multiple voice recordings over various time frames. The first two meetings he made various representations as to what those recordings consisted of. One of the conversations in particular was the -- he claimed he had one between him and two of his superiors that sounded very -- I'm saying incriminating, but in the civil respect.
When we finally -- it took multiple times to get him to produce these recordings, when he finally did produce them, he advised that he did not have that recording of that particular conversation which sounded very incriminating.
We spent one session sitting down with his computer listening to conversations.
Several of his superiors are Korean nationality, they have very heavy accents and the tapes were not very clear. In fact, he wanted us to try to see if we could get them [enhanced].
At Tarakji's request, Butterfield also wrote a November 3, 2008, letter to the municipal prosecutor in River Vale, conveying Tarakji's request that one of two municipal complaints he had filed in connection with his dispute with his former employer be dismissed.
According to Butterfield, Tarakji also told him that he had filed a claim for unpaid wages with the Division of Wage and Hour Compliance in the New Jersey Department of Labor. In fact, Tarakji had filed a suit for unpaid wages in the Special Civil Part. According to Butterfield, Tarakji only informed him of that filing when he ...