Nostrame v. Santiago, A-40 September Term 2011; Supreme Court; opinion by Hoens, J.; decided March 11, 2013. On certification to the Appellate Division, 420 N.J. Super. 427 (App. Div. 2011). [Sat below: Judge Parrillo, Yannotti and Skillman in the Appellate Division; Judge O'Connor in the Law Division.] DDS No. 04-1-9272 [32 pp.]

In this appeal, the court considers three issues: whether, and under what circumstances, an attorney might have a cause of action against a successor attorney for tortious interference with an attorney-client relationship; the factual and procedural predicates required for assertion of and prosecution of such a claim; and whether plaintiff should have been afforded the opportunity to file an amended complaint or to pursue discovery to uncover evidence of wrongdoing.

In October 2006, defendant Natividad Santiago underwent cataract surgery that resulted in an injury to her eye. In January 2007, she retained Frank Nostrame to pursue a medical-malpractice claim and signed a contingent-fee agreement. Plaintiff secured needed medical records, engaged in research, and consulted with medical experts. He filed a complaint on Santiago’s behalf on May 23, 2007. Meanwhile, Santiago moved to Florida.

According to plaintiff, Santiago had an appointment with him on June 1, 2007, but she did not appear. Plaintiff received a letter from Santiago, dated May 31, 2007, discharging him as her counsel and instructing him to turn over her file to Mazie Slater Katz & Freeman (Mazie Slater). Santiago forwarded a letter from plaintiff to her new attorney at Mazie Slater, who directed plaintiff in writing to cease all further contact with Santiago and to turn over the client’s file.

Plaintiff and defendant engaged in litigation relating to the release of the file and plaintiff’s assertion of a lien, resulting in a court order directing Mazie Slater to pay plaintiff’s expenses and preserving plaintiff’s lien pending resolution of the underlying malpractice litigation. Mazie Slater settled Santiago’s malpractice suit for $1.2 million and filed its motion to discharge plaintiff’s lien.

Plaintiff filed a complaint seeking an additional award of damages in the nature of a contingent fee based on his claim that Mazie Slater had tortiously interfered with his contract with Santiago by inducing her to discharge him.

The trial court determined that an attorney who is discharged is not entitled to a contingent fee, but instead is permitted to recover a quantum meruit award. The trial court valued plaintiff’s lien and awarded him $11,623.75 as his fee.

The trial court denied defendants’ motion to dismiss plaintiff’s amended complaint without prejudice, finding that plaintiff should be afforded an opportunity to conduct discovery. The Appellate Division reversed and dismissed plaintiff’s complaint with prejudice. The appellate panel relied, in part, on general principles of tortious interference with contract, citing Restatement (Second) of Torts § 766 (1979). The appellate court noted that plaintiff’s factual allegations were conclusory and declined to permit discovery.

The Supreme Court granted plaintiff’s petition for certification.

Held: Competition for clients among attorneys must be conducted in adherence to the Rules of Professional Responsibility and the means used to induce a client may be neither improper nor wrongful. Any claim that an attorney has engaged in behavior that would constitute a form of tortious interference with the attorney-client relationship of another must be specifically pleaded. Plaintiff’s complaint lacks that specificity.

The right of the client to be represented by counsel of his or her choosing is of paramount importance, thus there should be no interference with a client’s free choice to retain and to discharge any attorney.

Underlying the Restatement (Second) of Torts §767 is a recognition that one who acts to induce another is not free to do so by any means whatsoever. The means used may be neither improper nor wrongful. Inducing another to end a contractual relationship through acts that amount to fraud, defamation, deceit or misrepresentation, among others, would be wrongful. Attorneys are governed by the Rules of Professional Responsibility, which bear directly on the behavior in which they may and may not engage when seeking to attract clients.

Although an attorney who uses wrongful means, including fraud, misrepresentation or a violation of these generally applicable ethical rules, in his or her efforts to attract a client has engaged in behavior that would constitute a form of tortious interference, those circumstances will be both rare and so readily apparent that they can and must be specifically pleaded.

In this case, the complaint’s assertions that the client failed to appear for a meeting, discharged her attorney, asked that her file be transferred, and directed that the former lawyer not contact her fall short of identifying the sort of wrongful means that would give rise to a cognizable claim for tortious interference. Plaintiff’s complaint did not assert, and he cannot point to any fact that suggests, that the means employed were improper or wrongful. The record falls far short of the rare or unusual circumstances in which such a claim might be cognizable and the pleading lacks any of the specificity that is required in order to proceed.

The complaint’s factual assertions were insufficient on their face to state a claim for tortious interference. The court rejects plaintiff’s application to be permitted to engage in discovery. Dismissal with prejudice was appropriate lest plaintiff’s former client and her newly chosen attorney be subjected to a fishing expedition, a remedy that would raise the specter of chilling any client’s exercise of the free choice to select counsel.

The judgment of the Appellate Division is affirmed as modified.

Chief Justice Rabner, Justices LaVecchia and Albin, and Judges Rodriguez and Cuff, both temporarily assigned, join in Justice Hoens‘s opinion. Justice Patterson did not participate.

Frank J. Nostrame argued the cause pro se. For respondents — Adam M. Slater (Mazie Slater Katz & Freeman). For amicus curiae New Jersey State Bar Association — Shalom D. Stone (Kevin P. McCann, President; Stone, Susan A. Feeney, Immediate Past President, and Stacie L. Powers on the brief).