On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6794-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 1, 2010 - Decided
Before Judges Gilroy, Ashrafi and Nugent.
Plaintiff Philip Vinick appeals from two December 21, 2009 orders that quashed a subpoena he had served on Travelers Casualty & Surety Company of America (Travelers), incorrectly designated in the order as St. Paul Travelers' Insurance Company, and dismissed his complaint against defendants Paul Friedman; Bisceglie & Friedman LLC; Epstein Becker & Green, P.C. (EBG); and Blank Rome LLP (collectively, the Friedman defendants). Plaintiff also appeals from a third order of that date that denied his motion seeking to compel the Friedman defendants to produce discovery. We affirm.
I. Plaintiff and Friedman are licensed New Jersey attorneys. During the relevant times complained of, Friedman practiced law as a member of the three defendant law firms: Bisceglie & Friedman LLC from 1996 to November 2005; EBG from November 2005 to September 2007; and Blank Rome LLP from September 2007 through the entry of the orders appealed from.
On August 19, 2009, plaintiff filed a complaint against the Friedman defendants seeking to collect a portion of the legal fees they had received for services rendered in defending Alan Funk in a consolidated action filed in the United States District Court. The complaint alleged causes of action sounding in breach of contract (count one); quantum meruit (count two); and unjust enrichment (count three).
In November 2009 the Friedman defendants filed motions pursuant to Rule 4:6-2(e) seeking not only to dismiss the complaint for plaintiff's failure to state a claim upon which relief could be granted, but also to quash a subpoena duces tecum that had been served upon Travelers seeking to compel the insurer to produce copies of Friedman's billing records. Plaintiff filed a cross-motion seeking to compel the Friedman defendants to produce the billing records. On December 18, 2009, the trial court entered three orders supported by an oral decision that: 1) granted Friedman, Bisceglie & Friedman, and Blank Rome's motion seeking to dismiss the complaint and to quash the subpoena plaintiff had served upon Travelers; 2) granted EBG's motion seeking to dismiss the complaint; and 3) denied plaintiff's motion seeking to compel discovery.
II. Because the trial court considered the extensive certifications of plaintiff and Friedman, together with exhibits attached in support of and in opposition to the parties' respective motions, we consider the court's granting of the motions to dismiss the complaint under the summary judgment standard of review. See R. 4:6-2 ("If . . . matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46 . . . ."). Viewed most favorably to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record discloses the following.
Between 1974 and 2005, Friedman developed an expertise in the field of labor and employment law, specializing in ERISA*fn1 litigation. Although an experienced litigator, Friedman is not a certified trial attorney pursuant to Rule 1:39. Thus, Friedman may not divide or share a legal fee with a referring attorney pursuant to Rule 1:39-6(d).*fn2
In August 2004, Funk, then plaintiff's client, was named as a defendant, individually, and as an employer-trustee and fiduciary of the PACE Local I-300 Health Fund in the consolidated federal action, alleging he had breached his fiduciary duties under ERISA in administering the Fund. Matthew DiMinno was also named as a defendant in the federal action.
After plaintiff had undertaken Funk's representation in the federal action, plaintiff recommended that Friedman be engaged to also represent Funk in the lawsuit. In May 2005, Funk retained Friedman to represent him in the federal action, with plaintiff remaining as co-counsel of record. Funk executed a retainer agreement with Friedman under which Funk acknowledged personal liability for payment of Friedman's legal fees. Shortly thereafter, plaintiff introduced DiMinno and his personal attorney, Michael Farhi, to Friedman, anticipating that Friedman would undertake representation of DiMinno in the action. In so doing, plaintiff expected that "Funk's bills would be smaller because Funk and DiMinno would equally share the cost of Friedman's bills."
In the fall of 2005, plaintiff and Friedman learned of the existence of a fiduciary liability insurance policy maintained by the Local Health Fund with Travelers that insured the Fund's trustees against acts of negligence. In the fall of 2005, plaintiff, Farhi, and Friedman tendered Funk's and DiMinno's defenses in the federal action to Travelers under the insurance policy. On October 28, 2005, plaintiff, Farhi, and Friedman met with Travelers' counsel to discuss Travelers undertaking the defenses of Funk and DiMinno. At the meeting, Travelers agreed to defend Funk and DiMinno in the action commencing October 28, 2005; to engage Friedman and his then law firm, Bisceglie & Friedman, to represent Funk and DiMinno; to pay $275 of Friedman's $375 hourly rate; to pay plaintiff and Farhi for legal services rendered in defending Funk and DiMinno commencing September 30, 2005, when the defenses were tendered to Travelers through October 28, 2005, inclusive, but not for services rendered post-October 28, 2005. Pursuant to the terms of the agreement reached with Travelers, plaintiff sent Friedman a bill for legal services he rendered between September 30 and October 28, 2005, in the amount of $6,879.17 in anticipation that Friedman, in turn, would forward the bill to Travelers for payment.
According to plaintiff, in November 2005, knowing that Travelers would
only pay one law firm for services rendered on behalf of Funk after
October 28, 2005, he and Friedman entered into a verbal agreement to
divide legal fees Friedman received from Travelers and Funk for
services rendered in defending Funk in the federal action.*fn3