On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-2900-09 and L-2899-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 17, 2010 - Before Judges R. B. Coleman and J. N. Harris.
This appeal stems from a dispute over outstanding legal fees and a countersuit for legal malpractice.*fn1 Plaintiff Hill Wallack, LLP, sued defendant, Jackie Saint Gerard Jordan, seeking unpaid legal fees in excess of $88,000 associated with its representation of defendant in a divorce action. Defendant filed a separate complaint against plaintiff, alleging legal malpractice on grounds that plaintiff unnecessarily prolonged the litigation, resulting in excessive billing. Thereafter, the cases were consolidated upon consent.
Following a jury trial in August 2009, plaintiff was awarded $67,000 "plus interest" of the unpaid fees sought by plaintiff. Defendant contends the trial was infected by inflammatory factors and that an improper legal theory (breach of contract) was presented to the jury. For the reasons that follow, we affirm the jury verdict.
In March 2003, defendant, an attorney, retained plaintiff to represent him in a divorce action instituted by his wife.
Rocky Peterson was the partner in charge of defendant's matter and represented him at trial.
The divorce complaint filed by defendant's wife alleged extreme cruelty, adultery, and failure to communicate. During the divorce proceedings, plaintiff simultaneously represented defendant in a domestic violence action filed by defendant's wife against defendant. Though a restraining order was temporarily imposed, the action was ultimately dismissed and the order lifted. On April 8, 2004, the parties agreed to a fifty-fifty split of the marital assets plus alimony.
Prior to that time, defendant had made every payment due to plaintiff and, according to Peterson, had never claimed that he was being overcharged. In an email to Peterson from defendant dated April 20, 2004, defendant opined that it was the first time in his legal career that he had not received a one-third discount as a professional courtesy. Defendant later testified that he didn't dispute the earlier bills because he had been told by Peterson, "I'll take care of that Jack. We know you have one-third coming off."
On February 7, 2005, plaintiff filed a complaint against defendant, seeking unpaid legal fees plus interest, fees and costs. The last check received by plaintiff was dated October 11, 2004. Between August 10 and August 14, 2009, the case was tried in the Law Division, Middlesex County, before a jury and Judge Phillip Lewis Paley.
At trial, both defendant and plaintiff provided very different versions of why the litigation took longer than expected and why defendant was still in arrears of over $88,000 in legal fees on a $158,313.84 bill resulting from work conducted as of December 2004. Peterson testified that at the start of the representation, he informed defendant that a divorce following a thirty year marriage would most likely result in a fifty-fifty split of the marital assets. Notwithstanding this forewarning, Peterson testified that defendant instructed him to reject any settlement offers which included the payment of alimony.
Defendant testified he was never told his assets would most likely be split equally and that he would have to pay alimony until "the whole end of the process." Defendant stated that had he been informed of such a likely result, he would have told Peterson, "let's get it wrapped up." The withholding of this information, defendant alleged, amounted to malpractice.
Defendant also alleged that Peterson had orally promised him a one-third professional discount rate off the $295 defendant believed to be Peterson's standard hourly rate. Peterson denied agreeing to a one-third professional discount, stating that defendant appeared satisfied with the estimated $295 rate Peterson was charging in lieu of his "usual rate" of up to $350. The retainer letter defendant signed, without reservation, indicated that attorneys billed anywhere from $125 to $375 per hour, stipulated a minimum billing unit of ...