IN THE MATTER OF PETER SUSAN AND STEVEN LINDNER IRREVOCABLE TRUST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0634-10T1

IN THE MATTER OF PETER, SUSAN AND

STEVEN LINDNER IRREVOCABLE TRUST.

_________________________________

March 3, 2011

Argued February 14, 2011 - Decided

Before Judges Lisa and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. C-20-07.

Sara A. Kimball argued the cause for appellantSusan Lindner-Panster (The Margolis Law Firm, LLC, attorneys; Martin G. Margolis and Ms. Kimball, on the brief).

Andrew L. Indeck argued the cause for respondent Steven Lindner (Weber, Gallagher, Simpson, Stapleton, Fires & Newby, LLP, attorneys; Mr. Indeck, of counsel and on the brief; Jessica V. Henry, on the brief).

PER CURIAM

On leave granted, we review the Law Division's June 11, 2010 order vacating an earlier consent order to enforce a settlement of this intra-family trust litigation. The order appealed from was based upon the trial court's determination that defendant Steven Lindner had not consented to the settlement. In finding defendant's lack of consent, the trial court was presented with and apparently considered a series of confidential e-mails that defendant had sent to the attorney who had been representing him at the time of the consent order. Defendant's new counsel subsequently tendered the attorney-client e-mails to the trial court, under seal, in support of the motion to vacate, and the e-mails were not divulged to opposing counsel.

For the reasons that follow in this opinion, we reverse the June 11, 2010 order and remand for a plenary hearing, upon which the trial court shall make credibility findings concerning whether defendant had, in fact, withheld his consent to the settlement. The trial court shall also determine, in light of the expanded proofs adduced at the plenary hearing, whether defendant should be estopped or otherwise equitably foreclosed from having the consent order vacated because of his actions and inactions in the months following its entry. In addition, in advance of the plenary hearing, plaintiff's counsel must be provided with copies of the tendered e-mails, after the trial court makes appropriate redactions to cull out any portions that are unrelated to the pivotal issue of defendant's alleged non-consent.

I.

Plaintiff Susan Lindner-Panster and defendant are siblings and co-trustees of an irrevocable trust ("the Trust"). The Trust was established on October 12, 2001 by their mother, Gerda Lindner,1 to provide for her financially during her lifetime. Gerda charged plaintiff and defendant to make payments from the Trust to provide for her health and welfare, "in their unanimous, sole and unreviewable discretion." Upon Gerda's death, the remaining balance of the funds from the Trust would be distributed to Peter Lindner, (Gerda's other son and a non-party2 to this action), to plaintiff, and to defendant, in equal shares.

In January 2007, plaintiff filed a verified complaint in the Chancery Division to remove defendant as co-trustee of the Trust, alleging that he had withdrawn funds from the Trust without her approval and that he had misappropriated some of those funds. Defendant counterclaimed, reciprocally seeking to remove plaintiff as co-trustee of the Trust for various reasons. Fundamentally, the parties' disagreement in this matter appears to stem from their difficulties in cooperatively discharging their duties as co-trustees under the Trust.3

On September 17, 2008, the parties entered into a written agreement ("the Mediation Agreement"), following a session that day with a mediator. The Mediation Agreement consists of eleven paragraphs set forth in three pages of text, all apparently handwritten by the mediator. On the last page of the Mediation Agreement, the word "Agreed" appears immediately beneath the mediator's signature. Below the word "Agreed" are the signatures of plaintiff, the attorney for plaintiff, defendant, and the attorney who was then representing defendant.

Thereafter, plaintiff moved on several occasions to enforce certain aspects of the Mediation Agreement. Consequently, on December 19, 2008, on December 24, 2008, and on February 6, 2009, the trial court entered successive orders requiring that defendant comply with the provisions in the Mediation Agreement respecting visitation and the shared custody of Gerda.

Following the execution of the Mediation Agreement, the parties and their respective counsel endeavored to reach a more comprehensive and formal settlement agreement, the last apparent version of which is dated "May 2009" (the "Settlement Agreement"). The Settlement Agreement contains twenty-four numbered paragraphs and runs fourteen typewritten pages. There are several blanks within the body of the Settlement Agreement, for such items as account numbers, addresses, rental costs, and the name of a mutually-designated auditor. The Settlement Agreement is not signed by the parties or by their attorneys, despite the blank lines within the document that contemplate such signatures.

On June 18, 2009, plaintiff's counsel submitted the Settlement Agreement to the trial court, as well as to opposing counsel via overnight delivery, under the "five-day rule," Rule 4:42-1(c). Counsel also enclosed a proposed form of consent order. The proposed consent order stated in its two operative paragraphs that: (1) "the Settlement Agreement attached hereto as Exhibit 'A' shall be enforced between the parties," and (2) "the parties shall take all necessary steps to comply with the Settlement Agreement."

The proposed consent order contained a signature line only for the trial judge. It did not contain the signatures of either the parties or their respective counsel. It contained no recital that the parties had each assented to the terms of the Settlement Agreement, except that it recited that the matter had been "opened to the [c]ourt" by both counsel, and that the proposed consent order was to be entered upon "good cause shown." Nor did the cover letter from plaintiff's counsel expressly represent that the parties had agreed to the terms of the Settlement Agreement. The cover letter simply states:

With respect to the Settlement Agreement and the instructions of your law clerk, enclosed please find an Order for enforcement thereof, submitted under the five (5) day rule. Thank you for your courtesies extended in this matter.

Defendant's counsel did not present to the court any objection to the proposed order within the prescribed five-day period.

On June 25, 2009, the trial court entered an order dismissing the litigation. In that court-generated order, a box is checked indicating that the case had settled before trial. On the following day, June 26, 2009, the court entered a consent order (the "Consent Order") requiring the parties to comply with the terms of the Settlement Agreement. The Consent Order entered by the court was in the same form as that submitted by plaintiff's counsel a week earlier under the five-day rule.

On July 24, 2009, defendant moved to enforce the visitation provision in the Mediation Agreement calling for plaintiff to return Gerda to New York. Defendant also moved to compel plaintiff to pay certain expenses. On September 15, 2009, the trial court entered an oral decision on that motion. The court held that the Settlement Agreement, not the Mediation Agreement, now controlled the parties' visitation arrangement. The court specifically noted that plaintiff had opposed defendant's motion on the grounds that the Settlement Agreement superseded the mediation agreement, and that defendant had not disputed that particular assertion "by way of reply." By order entered on September 15, 2009, the trial court denied defendant's motion for Gerda to return to New York, but did require the Trust to pay certain outstanding expenses.

On November 6, 2009, defendant moved for reconsideration of the court's September 15, 2009 order. Defendant filed a supporting certification with his motion. In his certification, defendant relied upon various provisions of the Settlement Agreement, in an effort to demonstrate plaintiff's alleged bad faith in selectively complying with it. Defendant further asserted that plaintiff had not provided him with an accounting, as required by paragraph three of the Settlement Agreement, and that she also had not provided Gerda with a cell phone as called for in paragraph fifteen of the Settlement Agreement. He concluded his certification by asking the trial court to vacate the Settlement Agreement, but he did not assert a reason for doing so, other than, presumably, for plaintiff's alleged non-compliance.

Plaintiff cross-moved for counsel fees in connection with defendant's motion, and by way of reply, defendant submitted another certification on December 9, 2009. In that reply certification, defendant asserted that the Settlement Agreement did not address the issue of the parties' visitation rights. He complained that "NOTHING in the [S]ettlement [A]greement has been fulfilled." After considering these submissions, the trial court denied defendant's motion for reconsideration on December 23, 2009, and again required plaintiff to pay certain outstanding expenses.

On January 5, 2010, plaintiff filed, ex parte and on an emergent basis, an order to show cause with restraints. Plaintiff's application sought to enforce the Settlement Agreement and, more specifically, to enjoin defendant from accessing Trust assets, particularly a safe deposit box being held in Gerda's name. On January 13, 2010, the trial court entered an order granting plaintiff's motion, and directing that the safe deposit box be maintained under seal, pending further notice from the court "in accordance with the Settlement Agreement."

Thereafter, on January 20, 2010, plaintiff moved to enforce the court's previous orders of July 26, 2009, September 15, 2009, and December 23, 2009, and requested that defendant be incarcerated for not complying with the orders. The trial court accordingly entered an order to show cause to enforce litigant's rights on January 22, 2010, and established a return date on the application.

On February 22, 2010, the trial judge conducted the order to show cause hearing. At that hearing, defendant represented himself, causing some confusion over whether his attorney of record was still representing him. The trial court noted that defense counsel had come to chambers that morning, and had informed the court that he no longer represented defendant. In spite of this, defendant claimed that the attorney was still representing him. In any event, defendant was permitted to address the trial court and to defend the order to show cause.

Following the order to show cause hearing, the trial court entered an order on March 5, 2010 precluding defendant, consistent with the Settlement Agreement, from making personal use of Gerda's home and automobile out of funds from the Trust. The order also stated that the court would not decide further issues relating to Gerda's "general lifestyle issues," including the parties' visitation rights. The court also awarded plaintiff counsel fees incurred in connection with the order to show cause. In a separate order dated March 5, 2010, the court awarded plaintiff counsel fees in connection with settlement issues, pursuant to paragraph 17 of the Settlement Agreement. On March 24, 2010, the court amended that order, authorizing that the fees be paid from the Trust and charged as an advance to defendant.

Meanwhile, defendant filed a substitution of attorney on March 17, 2010, replacing his attorney with his current counsel. Aided by his new counsel, on April 30, 2010, defendant moved to vacate the court's order dismissing the litigation, and the associated Consent Order enforcing the Settlement Agreement, on the basis that defendant had not given his prior attorney his consent to settle.

With his motion to vacate, defendant filed a supporting certification, in which he alleged that the Settlement Agreement was invalid for lack of his consent. Defendant attested that when his prior attorney had advised him of the terms of the Settlement Agreement, he had rejected them and instead requested revisions. He then allegedly waited for his prior attorney to present him with a revised Settlement Agreement, but was later informed by the attorney that the court had already entered the dismissal order and the Consent Order enforcing the Settlement Agreement.

Defendant also certified that his former counsel had "represented that he would object to the entry of the Settlement Agreement but [defendant] did not receive a copy of any such objection despite repeated requests," and thus, "[b]oth orders were entered without [defendant's] consent." Defendant further alleged that confidential e-mails he had sent to his former attorney substantiated his claim that he had withheld his consent to settle. The e-mails were submitted to the trial court under seal as "Exhibit D" to defendant's certification, apparently along with a privilege log.4

Plaintiff thereafter requested from defendant discovery of the e-mails that he had supplied to the court under seal. Defendant denied those requests, invoking the attorney-client privilege. Plaintiff then sought a ruling from the court on whether the privilege applied. On May 14, 2010, the court transmitted a letter opinion to the parties, concluding that the attorney-client privilege indeed protected the e-mails from discovery.

On June 11, 2010, oral argument was held on defendant's motion to vacate the Consent Order. Defendant relied upon his certification and his e-mails to his former attorney to corroborate that he did not give his consent to settlement, as well as the fact that the Settlement Agreement was unsigned. Plaintiff, in turn, argued that a plenary hearing should be held, at which time defendant's former counsel could be required to authenticate the e-mails and confirm that he had indeed received them. Plaintiff also argued that defendant's conduct, following the entry of the Consent Order, amounted to a waiver of his right to challenge the Settlement Agreement on the basis of non-consent.

The trial court ultimately concluded that defendant had not given his consent to the settlement. The court found that when the Settlement Agreement was being negotiated, defendant had instructed his former attorney that he did not agree to its terms. The court also found that defendant had sought "either alternate or additional language to be included in the agreement before he would agree to its terms."

The court described as "curious" defendant's subsequent conduct, in which he moved for enforcement relief himself and in which he asserted positions in opposition to plaintiff's requests, conduct that arguably suggested that the Settlement Agreement had in fact been validly entered. Notwithstanding his subsequent conduct, the court held that defendant had not waived his right to challenge the validity of the Settlement Agreement because the Settlement Agreement had not been properly entered with the consent of the parties.

The trial court principally relied upon City of Jersey City v. Roosevelt Stadium Marina, Inc., in which this court held, in that particular setting, that "equitable defenses such as estoppel and laches do not apply to contracts which are ultra vires and void." 210 N.J. Super. 315, 329 (App. Div. 1986), certif. denied, 110 N.J. 152 (1988). Extrapolating from the opinion in Jersey City, the trial court reasoned that since a valid settlement agreement requires a client's consent, in the absence of a finding either that defendant had consented to it or that his attorney had the authority to consent to it on his behalf, defendant cannot be bound, by estoppel or waiver, to a settlement agreement that is void for lack of consent.

Consistent with its rulings, the trial court entered an order on June 11, 2010, vacating its June 25, 2009 administrative order of dismissal, and also vacating the related Consent Order enforcing the Settlement Agreement. The court also reinstated plaintiff's complaint.

Plaintiff subsequently moved for reconsideration, which the trial court denied, again citing the Jersey City case. In its bench opinion on reconsideration, the court reaffirmed its decision to withhold the attorney-client e-mails from plaintiff's counsel, noting that the court's decision on the motion to vacate was not predicated on issues concerning "the performance of [defendant's] prior counsel."

Plaintiff moved for a stay, which the trial court denied. Plaintiff then sought a stay before this court on an emergent basis, an application which was also denied. Subsequently, we granted plaintiff's motion for leave to appeal.

II.

The pivotal issue before us is whether the trial court erred in granting defendant's motion to vacate the Consent Order, particularly without conducting a plenary hearing. As a threshold matter germane to that question, we first consider whether the trial court erred in considering the e-mails that were tendered under seal by defendant, without allowing opposing counsel the opportunity to examine the relevant portions of those e-mails.

As we have noted, the trial court denied plaintiff's counsel access to the proffered e-mails on the ground that they were privileged attorney-client communications. To be sure, the attorney-client privilege, and the presumptive confidentiality of communications between a lawyer and his or her client, are core features of our legal system. See N.J.S.A. 2A:84A-20; N.J.R.E. 504; see also In re Kozlov, 79 N.J. 232 (1979); Payton v. N.J. Tpk. Auth. 148 N.J. 524 (1997). However, where, as here, a client tenders attorney-client communications to the court and requests that the court rely on the substance of those communications, the privilege respecting those communications is implicitly waived.

Our case law establishes that by voluntarily placing in issue what he may have previously stated to his lawyer, or what his lawyer may have stated to him, a client may forfeit the protections of attorney-client confidentiality. See, e.g., Weingarten v. Weingarten, 234 N.J. Super. 318, 325 (App. Div. 1989) (finding the attorney-client privilege waived as to certain matters, where the client asserted in a certification filed with the court the substance of various conversations she previously had with her former attorney); see also Blitz v. 970 Realty Assocs., 233 N.J. Super. 29, 34-36 (App. Div. 1989) (allowing discovery of a client's relevant conversations with her counsel prior to signing a contract to purchase real estate, because the client had placed in issue in the litigation her alleged lack of knowledge prior to signing).

It would be fundamentally unfair to permit defendant to deploy the attorney-client privilege here as both a sword and a shield inasmuch as he has asked the court to vacate the Consent Order based upon confidential e-mails with his prior attorney that he says substantiate his lack of consent, while at the same time objecting to opposing counsel seeing those very e-mails that he affirmatively tendered to the court as evidential. Defendant cannot have it both ways. Opposing counsel should be able to examine the pertinent portions of the e-mails to ascertain if defendant's assertions of non-consent are in any way qualified, contradicted, or repudiated. Opposing counsel also should have the chance to find out if there are other e-mails or communications between defendant and his former attorney, in which defendant might have changed his mind or otherwise made conflicting or superseding assertions about his alleged non-assent to the settlement.

The trial court incorrectly ruled that the attorney-client privilege had not been partially waived here because defendant did not specifically request the court to find that his former attorney's representation was deficient. See N.J.S.A. 2A:84A-20(2)(c) (noting that the attorney-client privilege does not extend to "a communication relevant to an issue of breach of duty by the lawyer to his client"). Regardless of whether the e-mails establish counsel's breach of duty, they were clearly tendered to the trial court by defendant as evidence to substantiate defendant's claim that he had repeatedly told his prior counsel that he did not consent to the Settlement Agreement and that he would not consent unless certain changes to it were made. The trial court, without hearing any testimony on the question, accepted defendant's assertions as to his lack of consent as true. In its ruling on the motion to vacate, the trial court did not state that the e-mails were irrelevant, or that the motion was being granted solely on the strength of defendant's certifications. To the extent that the e-mails were given evidential consideration by the trial court and nothing before us reflects that the judge disregarded them plaintiff's counsel was entitled to see them, or at least the relevant passages within them.

We reject defendant's argument that before any disclosure of the e-mails, in full or in part, the court is obligated to conduct an in camera analysis of the e-mails under the three-part test of In re Kozlov, supra, 79 N.J. at 243-44 (prescribing consideration of (1) the requestor's legitimate need for communications, (2) their relevance and materiality, and (3) whether the information could be secured from a less intrusive source). The Kozlov test does not apply to a context such as the present one, where a client has waived the privilege by asking the court to give substantive consideration to communications with his or her attorney. Moreover, even if, for the sake of argument, the Kozlov factors were applicable to a waiver scenario, the factors are clearly satisfied. A "legitimate need" to supply plaintiff with the communications inherently arises by virtue of defendant's own tendering of those communications. Defendant, by his inclusion of the e-mails with his motion to vacate, obviously wants the e-mails treated by the court as "relevant and material." Lastly, there is no point in requiring plaintiff to locate potential "less intrusive" sources of defendant's alleged non-assent, since defendant has already permitted an intrusion into his relationship with his former attorney by affirmatively tendering the confidential e-mails to the court. Defendant, in essence, opened the door himself to adversarial inquiry about the e-mails.

As we have already indicated, it may be unnecessary for the e-mails to be divulged to plaintiff and her counsel in their entirety. The trial court should examine the e-mails again in camera, and redact any portions that do not pertain to the critical issue of defendant's alleged non-consent to the Settlement Agreement. For example, the e-mails may well contain passages revealing defendant's negotiating strategy or other such matters that would be unduly prejudicial to him.5 After making any such redactions, the trial court should memorialize the basis for its findings to provide plaintiff with a sufficient explanation of why she was not being supplied with the e-mails in full, and also to enable further appellate review if it is sought on the disclosure issues. See Seacoast Builders Corp. v. Rutgers, The State Univ., 358 N.J. Super. 524, 542 (App. Div. 2003); see also Rosenberg v. State Dep't of Law & Pub. Safety, 396 N.J. Super. 565, 581 (App. Div. 2007).

Because plaintiff was erroneously deprived of the opportunity to examine the relevant portions of the tendered e-mails, the trial court's disposition of defendant's motion to vacate was procedurally flawed. For that reason alone, we must set aside the order vacating the Consent Order and the administrative dismissal order, and must remand the matter to allow appropriate disclosures to plaintiff. Yet, there is still another important reason that compels a remand: the lack of a plenary hearing to test the credibility of defendant's assertions that he did not consent to the settlement.

Our State has a strong public policy to foster and uphold the settlement of litigation. See Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008); see also Jersey City, supra, 210 N.J. Super. at 326. Finality is generally encouraged, leading to the oft-stated principle that "settlements are favored and will be enforced whenever voluntarily agreed to by the parties." Cap City Prods. Co. v. Louriero, 332 N.J. Super. 499, 508 (App. Div. 2000). Finality is also significant to a court's interests in efficiency and conserving public resources.

We also recognize that, in general, a client's consent to settle a case is necessary for the settlement to bind that client. See RPC 1.2(a) (mandating that "[a] lawyer shall abide by a client's decision whether to settle a matter"). However, a client may be bound to a settlement, even in the absence of his or her explicit or actual assent, when his or her attorney has the apparent authority to enter into the settlement. Such apparent authority may be created by words or conduct of the client that would lead "a person of ordinary prudence" to believe that the attorney had the authority to settle on the client's behalf. Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997). The attorney's words or actions alone are not sufficient to give rise to such apparent authority. Id. at 476. However, an attorney is presumed to possess the authority to act on behalf of a client, a presumption which the client has a "heavy burden" of overcoming. Jennings v. Reed, 381 N.J. Super. 217, 231 (App. Div. 2005) (quoting Sur. Ins. Co. of Cal. v. Williams, 729 F.2d 581, 583 (8th Cir. 1984)).

Despite efforts to assure that settlements are not enforced without the parties' mutual assent or without the apparent authority to settle reposed in the lawyers who represent the parties, at times a client may allege, as here, that he or she never consented to a settlement. In such circumstances where a colorable claim of non-assent is raised, the preferred practice is for the trial court to conduct a plenary hearing. At such a plenary hearing, the veracity of the client's representations can be explored through an adversarial process, and the court will have the opportunity to observe the witnesses first-hand and to make appropriate credibility determinations. See, e.g. Amatuzzo, supra, 305 N.J. Super. at 475-76 (remanding for a plenary hearing to consider whether the client authorized a settlement); Harrington v. Harrington, 281 N.J. Super. 39, 46-47 (App. Div.) (ordering such a plenary hearing in the context of a disputed matrimonial settlement), certif. denied 142 N.J. 455 (1995); see also Lahue v. Pio Costa, 263 N.J. Super. 575, 589-91 (App. Div.) (noting the judge's role in ascertaining the credibility of a party who claimed that his consent to settle had been contingent), certif. denied, 134 N.J. 477 (1993). A remand for such a plenary hearing is warranted in this case.

Plaintiff will have the burden of proving at the plenary hearing that despite the unsigned nature of the Settlement Agreement a settlement had in fact been achieved. See Amatuzzo, supra, 305 N.J. Super. at 475-76. Defendant, in turn, will have the burden of demonstrating that his prior counsel lacked the actual or apparent authority to bind him, see Jennings, supra, 381 N.J. Super. at 231, or of establishing some other compelling reason to vacate the settlement. See Nolan v. Lee Ho, 120 N.J. 465, 472 (1990).

We anticipate that the plenary hearing in this case would entail the testimony of defendant himself, his former counsel, and perhaps one or more other witnesses such as plaintiff and/or her counsel.6 At the hearing, plaintiff's witnesses can attest to their interactions with plaintiff and his counsel at the time the Settlement Agreement was prepared and the Consent Order was submitted to the court and, in particular, what defendant's counsel may have represented to his adversaries about his authority to enter into the settlement. They also can explain on the record such things as why the Settlement Agreement was not signed, why the Consent Order lacked the signatures of the parties or their counsel, and why the five-day rule procedure customarily used for memorializing oral rulings of the court was utilized here. Defendant's witnesses, in turn, can present testimony addressing the issues of non-consent, and address other factual issues relevant to the settlement's enforceability. After considering the testimony and the other competent proofs, the trial court can make a more informed assessment of the settlement's enforceability, with appropriate credibility findings.

In concluding from his review of the papers that the Settlement Agreement was unenforceable, the trial judge placed undue reliance upon certain aspects of our opinion in Jersey City, supra. The trial judge correctly noted a general principle expressed in Jersey City, i.e., that unless a settlement is authorized by a client, it is not to be enforced. See 210 N.J. Super. at 327. However, the context in Jersey City in which the settlement that was never properly ratified by a public entity was not enforced is materially different from the situation here.

The present case involves no governmental parties, which normally require formal ratification procedures, often at a public hearing, to bind the governmental agency or unit. Here, we are dealing with private individuals who do not act on behalf of the public at large. Hence, one of the key features of Jersey City is missing, and its critical observation that "[t]he unauthorized consent of a municipal attorney cannot bind the governing body," has no relevance here. See Ibid. Moreover, there is nothing in Jersey City that makes a plenary hearing on enforceability inadvisable, and there is no indication in our opinion in Jersey City that a request for a plenary hearing was made or denied.

Plaintiff urges us to apply principles of estoppel to dispense with any remand and simply reverse the trial court's order and reinstate the Consent Order conclusively. She argues that defendant is estopped from disavowing the settlement because of his multiple attempts after the entry of the Consent Order to enforce certain aspects of the Settlement Agreement. She also emphasizes defendant's delay of over ten months in moving to vacate the settlement. See, e.g., DSK Enters., Inc. v. United Jersey Bank, 189 N.J. Super. 242, 250 (App. Div.) (regarding delay issues), certif. denied, 94 N.J. 598 (1983); W. Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J. 144, 153 (1958) (regarding estoppel issues). Defendant, in turn, maintains that his conduct was reasonable in light of the constraints that he faced at the time, and his prior attorney's failure to carry out his instructions to withhold his consent to settle. We need not resolve those equitable issues on the present record. Instead, we remand them for appropriate plenary consideration by the trial court, after the factual record is more fully developed through the forthcoming hearing.

In ordering a plenary hearing, we intimate no views on what ultimate outcome will be appropriate. The trial court is free to reimpose its prior decision, or, alternatively, to reach a different one, provided, of course, that the result is supported by the record and the requisite statement of reasons under Rule 1:7-4. At that point, the aggrieved party may pursue appellate review in this court, in a manner consistent with the Rules of Court, if he or she so chooses.

We decline to reach the remaining issues presented in the parties' briefs that were not adjudicated in the trial court. See Nieder, supra, 62 N.J. at 234.

III.

The order of June 11, 2010 is hereby reversed, and the matter is remanded for further proceedings consistent with this opinion. Pending the outcome of the plenary hearing, the trial court shall stay enforcement of the Settlement Agreement, the future enforcement of which shall abide the outcome of the hearing on its validity.

The trial court shall convene a case management conference within twenty days of this opinion to schedule the plenary hearing, to consider whether any further discovery in advance of that hearing is warranted in the court's discretion, and to arrange the redaction and disclosure of the material portions of the attorney-client e-mails.

Reversed and remanded. We do not retain jurisdiction.

1 At oral argument before us, counsel confirmed that Gerda is now age ninety-three and residing in Florida.

2 The Trust precludes Peter from participating in or bringing any action against his siblings and his mother, or else his interest under the Trust would be forfeited.

3 We do not address the substantive merits of the parties' disputes, as they are not before us.

4 Although we have not been furnished with the e-mails or the privilege log, we do not need to review them to address the issues now before us.

5 At oral argument before us, plaintiff's counsel acknowledged that the redaction of such material would be appropriate.

6 Defendant suggests that the trial judge himself may have relevant personal knowledge about the genesis of the settlement because he was involved in some unspecified manner in the settlement discussions and could be a material witness and thereby would have to recuse himself. We need not evaluate that recusal issue on the record before us, and instead leave it to be resolved in the first instance in the trial court if, in fact, such a recusal motion is filed. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nothing in the record presently before us suggests that the judge would not be able to preside over future proceedings in this matter fairly and impartially.