Submitted February 7, 2018
appeal from Superior Court of New Jersey, Law Division,
Somerset County, Docket No. L-1004-16.
M. Cige, appellant pro se.
Rice, LLP, attorneys for respondent (Jay J. Rice, of counsel
and on the brief; Michael J. Paragano, on the brief).
Judges Alvarez, Nugent and Geiger.
Brian M. Cige, an attorney, appeals from two Law Division
orders. The orders declared unenforceable and void his
retainer agreement (the "Agreement") with
plaintiff, Lisa Balducci, a client he represented in a claim
seeking damages under the New Jersey Law Against
Discrimination ("LAD"), N.J.S.A. 10:5-1 to -4
9. The orders
also dismissed his counterclaim for fees and costs. The trial
court permitted defendant to recover for his services based
on the doctrine of quantum meruit.
trial court found defendant violated his professional
responsibility to explain the Agreement's material terms
to plaintiff so that she could make an informed decision
about retaining him. The trial court's factual and
credibility findings have ample support on the plenary
hearing record. Defendant did not explain the effect his
"greater three fee agreement" would have on any
recovery, inform plaintiff of alternatives to such an
agreement, or give plaintiff any indication of the tens of
thousands of dollars in expenses she would have to pay as the
case progressed. Hence we affirm.
action's procedural history began in July 2016 when
plaintiff filed a declaratory judgment action seeking to have
the trial court declare the Agreement unenforceable.
Plaintiff had retained defendant to represent her and her
child in a LAD action. She later terminated his
representation and retained new counsel. After plaintiff
terminated defendant's services, he billed her for $286,
746.67 in fees and expenses. Defendant's lien against any
recovery impeded meaningful settlement negotiations, so
plaintiff filed the declaratory judgment action.
filed an answer. He also filed a counterclaim seeking a
judgment for fees and costs. Following a plenary hearing, the trial
court declared the fee agreement unenforceable. This appeal
parties developed the following record at the plenary
hearing. Plaintiff and defendant were friends when she and
her child met him at his office in September 2012 to discuss
a possible lawsuit seeking remedies under the
the meeting, defendant presented plaintiff with the
Agreement. The Agreement included these terms:
3. Legal Fees. The Law Firm cannot predict or guarantee what
your final bill will be. This will depend on the amount of
time spent on your case and the amount of other expenses.
A. Initial Payment. The Law Firm will begin work on your case
upon receipt of $3750.00. This sum will be used to
pay for your initial filing fee, other fees and expenses, and
legal fees, according to this Agreement.
B. Retainer. You agree to pay $7500.0 0* as the minimum
retainer, but maximum amount for legal fees to be paid
until the case is settled orjudgmentis entered.
Notwithstanding, you are encouraged to make additional
payments toward legal fees as invoiced to minimize having a
large invoice when the case ends.
*$3750.00 to be paid within ninety (90) days of signing this
C. Legal Fee. You agree to pay the Law Firm for legal
services the greater of:
i. Rate Per Hour
Brian M. Cige, Esq.
(This hourly rates [sic] is subject to review and revision 11
January 2014 and annually thereafter. Further, at the Law
Firm's discretion, it may either use the rates which were
current when the services were performed and adding interest
at the regular rate for paying clients or using the rate
current at the time payment is made.)
ii. thirty seven and one half percent (37 1/2%) of the net
recovery (including attorneys fees referred to in iii below).
iii. statutory attorneys fees, by settlement or award,
received with credit for all payments received.
Client has been advised that, in employment cases, the
employer may offer reinstatement of his or her prior position
or a comparable position. In the event the client accepts an
offer of reinstatements, the client agrees to pay the Law
Firm fifteen additional percent (15%) of the total pay he or
she would receive from the employer upon reinstatement for a
one (1) year pay period, in no more than six (6) equal
D. All Services Will Be Billed. You will be billed at the
hourly rate set forth in paragraph 3C for all services
rendered. This includes telephone calls (minimum charge of
[six] minutes), dictating and reviewing letters, travel time
to and from meetings and the Court, legal research,
negotiations and any other services relating to this matter.
Client hereby gives the Law Firm a continuing lien on the
client's claim and the proceeds thereof for the amount of
the attorney's fees, out-of-pocket expenses, and costs
for which the client is obligated under this agreement. The
attorney's lien is given by the client pursuant to New
Jersey State [sic] Annotated Title 2A:13-5.
4. Costs and Expenses. In addition to legal fees, you must
pay the following costs and expenses: experts' fees,
court costs, accountants' fees, appraisers' fees,
service fees, investigators' fees, deposition costs,
messenger services, photocopying charges, telephone toll
calls, postage and any other necessary expenses in this
matter. The Law Firm may require that expert(s) be retained
directly by you. You would then be solely responsible to pay
5. Bills. The Law Firm will send you itemized bills from time
to time. The Law Firm may require that costs and expenses
(see paragraph 4) be paid in advance. All bills for costs and
legal expenses are due upon receipt and failure to pay will
waive any discounts. You will be charged interest at a
monthly rate of one and one-half percent (1 ½%) on any
remaining balance not paid within thirty (30) days from the
date of the bill. If an outstanding balance necessitates
collection efforts by the Law Firm will be paid its legal
fees for collecting same. Further, at the Law Firm's
discretion, it may either use the rates which were current
when the services were performed and adding interest at the
regular rate for paying clients or using the rate current at
the time payment is made.
parties disputed the circumstances under which plaintiff
signed the Agreement. According to plaintiff, defendant did
not explain the terms of the Agreement. Rather, he told her,
"[t]his is a standard agreement for a case like
[this]." Plaintiff, who had worked for attorneys and who
now operated her own business, "quickly glanced at it
and . . . had a concern." She said to defendant,
"Brian, this says that I am going to be responsible at
the end if we lose the case." He said she would not. He
told her the language concerning his hourly rate was standard
for a LAD case like this. He said: "We are friends. I
was at your wedding. I would never do this to you. Ignore
that. Don't worry about it. It is standard
information." Plaintiff signed it, because she trusted
him, he was a friend, and she believed him.
contrast, defendant testified, "plaintiff was provided
this. Read it. Understood it. And signed it." Defendant
emphasized the "Signatures" paragraph of the
agreement, located immediately above the signature lines,
stated: "You and the Law Firm have read and agree to
this Agreement. The Law Firm has answered all of your
questions and fully explained this Agreement to your complete
satisfaction. You have been given a copy of this
Agreement." Defendant denied telling plaintiff he would
not enforce the Agreement's hourly rate provision. He
testified, "I provided her with the retainer agreement
in my office. I asked her if she had any questions after she
reviewed it. And she signed it. And we were on our way."
child testified and corroborated plaintiff's testimony.
The child said defendant told plaintiff not to worry about
legal fees if the case was lost. The child was emphatic
defendant said he would never do that to plaintiff because
they were friends.
testified that after retaining defendant, she began receiving
monthly bills for defendant's services. Extremely upset,
she telephoned defendant and asked the meaning of the bills.
He said: "Lisa, I have to by law keep track of the
billing, . . . but I know they look a lot, . . . but I am
padding them. So at the end of the day when they are found
guilty of L-A-D at the very least, then the [defendants']
attorneys will have to pay for it and you will not have to
have those fees." Plaintiff said defendant agreed to
stop sending the bills because he realized how much they
acknowledged plaintiff became upset when she received bills
based on his hourly fee, so he stopped sending them. He
denied he stopped sending them for the reason given by
plaintiff. He claimed he had agreed she could defer payment.
agreement is dated September 7, 2012. Plaintiff terminated
defendant's services in September or October 2015. The
parties' attorney-client relationship had begun to sour
ten months earlier, in January 2015.
problems developed, according to plaintiff, when depositions
began in the underlying case. Plaintiff testified she was
exhausted but was nonetheless doing much of the work to
prepare for depositions while defendant was away at chess
tournaments. To review material in preparation for
depositions, plaintiff and her child went to defendant's
office. Plaintiff said defendant required her to "pay
his paralegal in which to keep the office open so both my
[child] and I ...