RFgavel, scale, and law book

A New Jersey appeals court has awarded a partial victory to an attorney being sued by an order of the Catholic Church for allegedly breaching the terms of a decades-old settlement agreement entered into by a parochial school student by holding a media conference.

The Appellate Division said attorney Gregory Gianforcaro owed no duty of care to the Order of St. Benedict of New Jersey, a nonclient, and thus a motion to add a legal malpractice claim to the suit was rightly denied.

St. Benedict operates the Delbarton School in Morristown.

“Gianforcaro’s representation was limited to litigating [the former student's] claims against OSBNJ, not to negotiating the settlement agreement,” Appellate Division Judges Marie Simonelli and Michael Haas said in the July 27 per curiam decision. “Gianforcaro is OSBNJ’s adversary attorney in this litigation, and thus, OSBNJ had no reason to rely on his actions as an attorney.”

The panel added, “In the absence of Gianforcaro’s independent duty of care to OSBNJ, a non-client, the proposed legal malpractice claim was unsustainable as a matter of law and would not have survived a motion to dismiss.”

But the panel reversed the dismissal of contract-based claims, saying the order could proceed with claims alleging breach of contract and breach of duty of good faith and fair dealing.

The dispute involves a 1988 settlement, which contained a confidentiality agreement, between the Order and a student, identified only as W.W., who alleged that he was sexually abused by one of his teachers at Delbarton.

The settlement was purportedly in “the seven figures.”

The decision came at tumultuous time for the Order. Days earlier, the Order publicly acknowledged a history of sexual abuse committed by priests and monks at Delbarton and another of its schools, St. Mary’s Abbey.

Gianforcaro did not represent W.W. in the original settlement. W.W. retained Gianforcaro in 2012 to file an action seeking to invalidate the confidentiality agreement. Gianforcaro at the time held a press conference at the Morris County Courthouse, saying the confidentiality agreement should be voided, in part because of claims of abuse by other students.

He discussed, in broad terms, the terms of the confidentiality agreement, and noted the alleged seven-figure value of the settlement, according to the decision.

The Order then filed its lawsuit against Gianforcaro.

The appeals court in its July 27 decision said a Morris County trial judge rightly found that a legal malpractice claim wasn’t viable.

“There are no facts in this case showing that Gianforcaro did anything in the performance of his duties as an attorney to induce OSBNJ to rely on his actions representations as an attorney,” the panel said.

“Gianforcaro did not represent W.W. in connection with the settlement agreement. He had no involvement whatsoever in the negotiation or preparation of the settlement agreement,” the appeals court added.

“Thus, Gianforcaro owed no independent duty of care to OSBNJ as a non-client,” the appeals court said.

The appeals court did say, however, that there was a genuine issue of material fact as to whether the contract’s terms could be applied to Gianforcaro.

“We conclude that the liquidated damages provision is ambiguous with respect to whether OSBNJ could directly recover damages from any of W.W.’s agents or attorneys who breach the confidentiality clause,” the panel said. “Viewing the evidence in the light most favorable to OSBNJ, which the motion judge failed to do, there is a genuine issue of material fact as to what the parties intended with respect to the liquidated damages clause. There were also credibility issues that must be decided by the factfinder.”

The Order’s attorney, Christopher Carey of McElroy Deutsch Mulvaney & Carpenter in Morristown, said the Order was pleased that it will be allowed to proceed with claims and that it should be allowed to collect damages from Gianforcaro.

Neither Gianforcaro nor his attorney, Christopher Kinum of Roseland’s Critchley, Kinum & DeNoia, returned calls seeking comment.