On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2885-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2011
Before Judges Parrillo and Alvarez.
Plaintiff Matthew Goodwin appeals from the summary judgment dismissal of his legal malpractice complaint against defendant Donahue Hagan Klein Newsome & O'Donnell. We affirm. The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523-24 (1995), are as follows. After filing his divorce complaint on October 31, 2006, plaintiff changed counsel and by written agreement of July 31, 2007, retained defendant to represent him in his ongoing matrimonial litigation. A member of the firm, Edward J. O'Donnell, handled the matter on plaintiff's behalf.
According to plaintiff, on the scheduled trial date of April 24, 2008, O'Donnell recommended the matter proceed to arbitration as the least expensive and most expeditious means of resolving the marital dispute.*fn1 Both parties agreed and executed an arbitration agreement listing the issues to be arbitrated; identifying the arbitrator; fixing the arbitrator's fee; and allocating its cost. The Family Part judge signed an order that same day referring the matter to arbitration.
Six months later and prior to the commencement of arbitration, on October 9, 2008, plaintiff again retained new counsel, Skoloff & Wolfe, P.C., to represent him in his divorce action. More than nine months later, the arbitrator issued his final arbitration award.
Evidently dissatisfied with the result, on September 1, 2009, plaintiff filed the instant legal malpractice complaint against defendant, alleging that the arbitration, in which he spent an additional $200,000, was neither cheaper nor quicker than a court proceeding. Defendant answered and following discovery, filed a motion for summary judgment, which the court granted on February 4, 2011, concluding:
Both the husband and wife agreed to arbitration. Counsel for each recommended it. An agreement was signed on April 24, 2008 by both the husband and wife and each page of that agreement was initialed by them. There also are several handwritten inter-lineations which would indicate that it was carefully reviewed by the parties before they entered into the agreement.
The fact that it did not go to arbitration until many months later and an award was not issued until July 21, 2009 cannot be considered the fault of the defendant. The defendant firm was replaced in October 2008, some six months after the arbitration agreement was entered into, by a third law firm representing the plaintiff and the arbitration award was not until July 2009, some 15 months after the arbitration agreement was entered into.
The malpractice is simply that the defendant represented to the plaintiff that it would be cheaper and more expeditious to submit the divorce matter to arbitration. It generally is true that arbitration is not only a favored means of resolution, but also is more expeditious and less expensive.
When all is said and done, the advice was appropriate. Whether or not the advice worked out as intended does not create an issue of legal malpractice. The question is whether or not under the circumstances the lawyer gave the client reasonable advice.
See [Ziegelheim v. Apollo, 128 N.J. at 250, 261 (1992).].
The strategy is a reasonable one and cannot be questioned. In this case, counsel felt there were tax issues which were better left to a more private, informal setting than open court. Even though that is disputed, that does not take away from the fact that the advice that arbitration was less expensive and more expeditious is a reasonable strategy. Otherwise, every lawyer would be subject ...