WEINER & MAZZEI P.C and PHILLIP A. LAPORTA ESQ v. THE SATTIRAJU LAW FIRM PC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WEINER & MAZZEI, P.C.,

and PHILLIP A. LAPORTA, ESQ.,

Plaintiffs-Appellants,

v.

THE SATTIRAJU LAW FIRM, PC,

Defendant-Respondent.

______________________________________________

ArguedJanuary 12,2016 Decided May25, 2016

Before Judges St. John and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1322-14.

Scott B. Piekarsky argued the cause for appellants (Piekarsky & Associates, LLC, attorneys; Mr. Piekarsky, of counsel and on the briefs; Mark R. Faro, on the briefs).

Matthew J. Tharney argued the cause for respondent (McCarter & English, LLP, attorneys; Mr. Tharney, of counsel and on the brief).

PER CURIAM

In this referral fee dispute, plaintiffs Weiner & Mazzei, and Phillip A. LaPorta, appeal from the Law Division's entry of summary judgment in favor of defendant, The Sattiraju Law Firm. Having examined the arguments in light of applicable law, we affirm.

In 2009, LaPorta, a New Jersey attorney, was contacted by a family friend in need of legal advice. The family friend, who, in order to preserve confidentiality, will be referred to as "the client," had suffered a workplace injury and change in employment. After being apprised of the client's situation, LaPorta advised him that he had a valid workers' compensation claim and a possible employment claim against his former employer. LaPorta declined to represent the client, but offered to refer him to an attorney with a specialty in that area.

According to LaPorta, he then explained to the client that the attorney would take the case on a contingent fee basis, and that LaPorta would be paid a referral fee for his service. LaPorta contends that the client verbally consented to this arrangement. However, the client certified that LaPorta never informed him that a referral fee would be paid. The parties agree that LaPorta never entered into a written fee agreement with the client. They also agree that LaPorta had never before represented the client in any other matter.

Following his discussion with the client, LaPorta contacted Franco Mazzei of Weiner & Mazzei. Weiner & Mazzei also declined to take the case, but offered to refer the client to The Sattiraju Law Firm, a firm comprising at least one certified civil trial attorney.

According to Weiner & Mazzei, the firm had a standing referral arrangement with The Sattiraju Law Firm, and Sattiraju agreed to abide by their usual one-third referral fee. The parties all agree that Weiner & Mazzei had no direct contact with the client.

The Sattiraju Law Firm prosecuted the client's employment suit until a verdict was entered and a confidential settlement reached with the client's former employer. Plaintiffs contended they are jointly entitled to one-third of The Sattiraju Law Firm's fee.

Plaintiffs filed a complaint on May 21, 2013 claiming breach of contract. Defendant moved for summary judgment on March 28, 2014, but the motion was denied on April 3, 2014. Defendant's subsequent motion for reconsideration was also denied on June 20, 2014. However, sometime after denying defendant's first motion for reconsideration, the judge reevaluated his position, and invited defendant to move for reconsideration again. On October 10, 2014, the judge granted defendant's second motion for reconsideration and dismissed plaintiffs' claims with prejudice.

On appeal, plaintiffs contend the court incorrectly interpreted Rule 1:39-6(d), which governs referrals to certified trial attorneys, as incorporating the requirements of R.P.C. 1.5(e), which requires the informed consent of the client and a written representation agreement for all attorneys involved before any fee may be shared between attorneys not of the same firm. Plaintiffs also contend that summary judgment was inappropriate because a genuine dispute exists as to whether the client gave informed consent to the fee-sharing arrangement between plaintiffs and defendant. Finally, plaintiffs argue the judge failed to consider alternative theories of quantum meruit and de facto partnership. We disagree, and affirm the Law Division's order of summary judgment.

We review a grant of summary judgment de novo, meaning we apply the same summary judgment standard that governed the trial court. See Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995).

In performing this review, we must interpret the facts, and any inferences therefrom, in the light most favorable to the non-moving party. See Lippman v. Ethicon, Inc., 222 N.J. 362, 367 (2015) (citing Brill, supra, 142 N.J. at 523, 540). If there is a genuine issue as to any material fact, or credibility issues are presented, summary judgment should be denied. R. 4:46-2(c); Brill, supra, 142 N.J. at 540.

The Supreme Court adopted the R.P.C., in part, "to provide clear, enforceable standards of behavior for lawyers." O Builders & Associates, Inc. v. Yuna Corp. of NJ, 206 N.J. 109, 121 (2011) (quoting In re Supreme Court Advisory Comm. on Prof'l Ethics Op. No. 697, 188 N.J. 549, 554 (2006)). A fee sharing agreement between attorneys that does not satisfy the requirements of R.P.C. 1.5(e) is not enforceable. Goldberger, Seligsohn & Shinrod, P.A. v. Baumgarten, 378 N.J. Super. 244, 252 (App. Div. 2005).

R.P.C. 1.5(e) sets forth the following requirements for the sharing of fees

Except as otherwise provided by the Court Rules, a division of fee between lawyers who are not in the same firm may be made only if

(1) the division is in proportion to the services performed by each lawyer, or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; and

(2) the client is notified of the fee division; and

(3) the client consents to the participation of all the lawyers involved; and

(4) the total fee is reasonable.

Rule 1:39-6(d) departs from R.P.C. 1.5(e) by requiring

A certified attorney who receives a case referral from a lawyer who is not a partner in or associate of that attorney's law firm or law office may divide a fee for legal services with the referring attorney or the referring attorney's estate. The fee division may be made without regard to services performed or responsibility assumed by the referring attorney, provided that the total fee charged the client relates only to the matter referred and does not exceed reasonable compensation for the legal services rendered therein.

Although Rule 1:39-6(d) clearly abrogates some of the requirements of subsection (1) of R.P.C. 1.5(e), it does not abrogate the requirements of subsections (2) and (3) of R.P.C. 1.5(e). The phrase "[e]xcept as otherwise provided by the Court Rules . . . [,]" which precedes the requirements of R.P.C. 1.5(e), implies that the requirements apply unless a contradictory instruction is explicitly given.

Furthermore, the Supreme Court Advisory Committee on Professional Ethics addressed this issue in 2003, concluding

In the case of certified attorneys, R. 1:39-6(d) eliminates only the requirement that the division of fees be in proportion to the services performed by each lawyer, or that each assumes joint responsibility for the representation under R.P.C. 1.5(e)(1). The conditions of client consent and reasonableness of the total fee remain relevant.

[Advisory Comm. Op. 694, 174 N.J.L.J. 460 (Nov. 3, 2003).]

The issue on this summary judgment appeal is, therefore, whether or not there is a genuine dispute as to whether the alleged fee sharing agreement between plaintiffs and defendant satisfied the requirements of R.P.C. 1.5(e) and Rule 1:39-6(d). We conclude that no genuine dispute exists.

Viewing the facts in a light most favorable to plaintiffs, we accept LaPorta's representation that he informed the client that he would receive a referral fee for referring the client's case. Even so, plaintiffs concede that they failed to inform the client of Weiner & Mazzei's participation in the alleged fee-splitting arrangement, and failed to solicit the client's consent to Weiner & Mazzei's participation. Thus, there is no genuine dispute that plaintiffs failed to satisfy the requirements of R.P.C. 1.5(e)(2) by failing to fully notify the client regarding the parameters of the fee arrangement in this case. Likewise, there is no genuine dispute whether the client consented to the participation of "all the lawyers involved[,]" as required by R.P.C. 1.5(e)(3).

Finally, we note that plaintiffs' quantum meruit and de facto partnership claims were not properly raised in the trial court, and therefore need not be addressed on appeal. State v. Robinson, 200 N.J. 1, 20-22 (2009); State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2016). "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012).

Affirmed.