A lawyer is asking the New Jersey Supreme Court to grant certification in a fee-shifting case where his retainer agreement with an hourly billing component was declared null and void.
Somerville attorney Brian Cige was hit with a lawsuit seeking to void his retainer after he sent a bill for $286,746 to client Lisa Balducci in a fee-shifting case under the state Law Against Discrimination. A trial judge declared the fee agreement unenforceable and the Appellate Division affirmed, finding that Cige failed to sufficiently explain the agreement to his client.
Cige filed a petition for certification with the Supreme Court on Monday, claiming the appeals court established a new rule of professional conduct by holding he was obligated to explain to his client that she could likely find another attorney to represent her under more favorable terms. Such a new rule should not be applied to him retroactively, Cige said in his Supreme Court petition in Balducci v. Cige.
In addition, Cige said the appeals court ruling invalidated the agreement based on alleged ambiguity but did not state why it is ambiguous or how it conflicts with court precedent. Cige also said in his petition that Assignment Judge Yolanda Ciccone, of Somerset, Hunterdon and Warren counties, showed bias against him when she ignored his requests for discovery into Balducci’s claims that he fraudulently induced her to sign the retainer. Ciccone, who was hearing both the LAD case and the retainer dispute, allowed her desire to clear the first case from her docket influence her ruling in the retainer case, Cige claims.
Balducci and her son, identified as V.B., retained Cige in 2013 to sue the Flemington-Raritan Regional and Hunterdon Central school districts under the Law Against Discrimination and the Anti-Bullying Bill of Rights Act.
The retainer she signed called for the bill to be calculated by whichever of three methods yielded the highest fee: Cige’s $475 hourly rate; a contingent fee equaling 37.5 percent of the net recovery, including any attorney fee award; or statutory fees awarded by the court under the fee-shifting provision of the LAD.
The agreement also charged one dollar for every fax and email he sent, in addition to his time, and 25 cents for every page photocopied. In addition, Cige confided to Balducci when she complained about his bills that “I know they look [like] a lot … but I am padding them,” so the defendant would have to pay them if found “guilty,” according to the Appellate Division ruling. Cige says his rates for expenses are typical in employment law cases, adding he never told Balducci he was padding his bill.
The appeals court called Cige’s retainer agreement “problematic if not misleading.” Citing a prior Appellate Division case from 2009, the panel said, “An attorney must never lose sight of the fact that the profession is a branch of the administration of justice and not a mere money-making trade.”
According to the suit in the underlying case, V.B. was subject to anti-gay slurs and negative comments about his weight from other students. He was also pelted with a plate of pasta, jabbed sharply in the sides, and was once subject to “pantsing,” in which his pants were pulled down to expose his buttocks and genitals, the suit alleges.
Balducci terminated Cige’s services three years into the representation in the fall of 2015. In July 2016, she filed a declaratory judgment action seeking to have the fee agreement declared unenforceable. Balducci claimed she would not have retained Cige if she knew she would be charged an hourly rate even if her claims were unsuccessful. Ciccone found her claims credible and entered an order declaring the retainer agreement unenforceable and void.
Appellate Division Judges Carmen Alvarez, William Nugent and Richard Geiger affirmed Ciccone’s ruling on Aug. 30.
Cige disputed Balducci’s claim that she did not understand the retainer agreement, citing her background as a paralegal. Jay Rice of Nagel Rice says Balducci is a real estate paralegal, which gives her no knowledge of retainer agreements.
Cige added that the requirement that a lawyer in his circumstances advise his client about what terms other lawyers might charge is “nuts” and “unworkable and an ethics trap.”
“This petition is my effort to reclaim my reputation and [is being brought] because what I’m hearing from other employment litigators and others is that this rule doesn’t make any sense,” he said.