A state appeals court on Wednesday affirmed dismissal of a legal malpractice suit, saying the judge properly concluded the plaintiff was an ex-client and therefore due a lesser duty of care.
The Appellate Division held in Abreu v. Mackiewicz, A-2828-09, that the plaintiff did not allege sufficient facts to support his claim of an attorney-client relationship at the time in question.
The panel also rejected the claim that the issue should have been put to a jury.
The case stems from a 2005 real estate transaction between Rene Abreu and his business partner, Ted Worthington.
Abreu claimed that the terms, which amended an earlier agreement, were unfavorable to him.
After Worthington sued Abreu for breach of the 2005 agreement, Abreu brought a third-party claim against Hoboken attorney Richard Mackiewicz.
Abreu claimed Mackiewicz represented him in the transaction and committed malpractice.
Mackiewicz asserted that he represented Worthington in the transaction. He said he had represented Abreu in the past, but ended representation in 2001. And he cited Abreu’s consent, in writing, to his representation of Worthington in the 2005 deal.
Abreu settled his dispute with Worthington, with a proviso that preserved Abreu’s claim against Mackiewicz.
Abreu’s suit against Mackiewicz was tried to a jury before Hudson County Superior Court Judge Barry Sarkisian.
Sarkisian instructed the jury that Abreu did not have an attorney-client relationship with Mackiewicz at the time of the 2005 transaction.
He told the jury to disregard Abreu’s expert testimony that Rule of Professional Conduct 1.7, which describes a lawyer’s duty of care when a client’s interest conflicts with that of another, applied.
The judge further instructed the jury that RPC 1.9, which describes a lawyer’s duty to former clients, controlled in this case.
Sarkisian told the jury that Mackiewicz owed Abreu a duty of care as a nonclient, which arises when the lawyer knows or should have known the client would rely on the attorney’s skills or services.
The jury found Abreu failed to prove Mackiewicz breached his duty of care to him. Although Mackiewicz and Abreu had a fiduciary relationship, there was no breach of duty, the jury concluded.
Abreu appealed, claiming that the judge erred by instructing the jury that Abreu and Mackiewicz did not have an attorney-client relationship in 2005 and that the jury charge erroneously applied RPC 1.9.
Judges Francine Axelrad, Paulette Sapp-Peterson and Mitchel Ostrer concluded that Sarkisian properly found that Abreu did not show an attorney-client relationship during the time at issue.
The contract from the 2005 transaction explicitly stated that Mackiewicz was representing Worthington and that Abreu was advised to find his own counsel, they said.
Further, they noted that the contract, prepared by Mackiewicz, contained a clause saying it would not be construed more strictly against Worthington by virtue of the fact that it was prepared by his attorney.
Abreu admitted that he looked for another attorney to represent him in the case but found none and that he paid nothing to Mackiewicz in connection with the transaction or anything else after 2002.
Abreu testified that Mackiewicz represented him extensively from the mid-1990s until 2001.
In 2001, Abreu confessed to Mackiewicz that he had begun kiting checks, the attorney claimed. Abreu disputed that claim.
Mackiewicz said that at that point, he began to distance himself from Abreu, who was found guilty in 2004 of mail fraud, mail fraud conspiracy, check-kiting conspiracy and structuring currency transactions.
He was sentenced to 87 months in jail.
Abreu relied on Froom v. Perel, 377 N.J. Super. 298 (2005), in which another panel held that existence of an attorney-client relationship was a jury question due to conflicting evidence.
But the Abreu panel said the evidence of a relationship between the malpractice plaintiff and defendant in Froom was “more balanced than the one-sided evidence before us.”
And the parties in Froom were not in apparent conflict, unlike in the case at hand, where Abreu and Worthington were on opposite sides of the deal, the panel said.
The panel also rejected Abreu’s claim that the judge improperly instructed the jury that Mackiewicz owed him a duty of care as a nonclient. He claimed that even if he were not a current client, the obligation to him was equivalent to one owed a current client.
“Were that so, an attorney could not accept a new client in a matter adverse to a former client — which our cases contemplate,” the panel said.
So long as the new client’s matter is not the same or substantially related to the one involving the former client, the attorney should be free to take on the new client’s case, the court said.
Abreu’s lawyer, Gerald Krovatin of Krovatin Klingeman in Newark, did not return a call. Mackiewicz’s lawyer, Douglas Motzenbecker of Gordon & Rees in Florham Park, declined to comment. •