The New Jersey Supreme Court on Monday recognized for the first time that lawyers can sue other lawyers who try to poach their clients.
A tortious-interference suit may be brought if the lawyer with the existing client relationship alleges specific wrongful means — such as fraud, misrepresentation, deceit or defamation — were used to wrest a client away, the court said in Nostrame v. Santiago, A-40-11.
Notably, wrongful means may include violations of limits on attorney solicitation in the Rules of Professional Conduct, the justices said.
But Frank Nostrame’s suit failed to state a claim because it was "based on nothing more than his unsupported suspicion that his client would not have discharged him absent some wrongful or improper means," they found, affirming dismissal of the case.
Nostrame, a Jersey City solo whose medical-malpractice client told him to send her file to another firm, conceded he had no further evidence of wrongdoing to support his tortious-interference claim but sued in the hope he could uncover it through discovery.
Dismissal with prejudice "was entirely appropriate lest his former client and her newly-chosen attorney be subjected to a mere fishing expedition, a remedy that would raise the specter of chilling any client’s exercise of the free choice to select counsel," the court wrote.
Natividad Santiago signed a contingency fee retainer with Nostrame in January 2007 to handle a claim over cataract surgery that left her blind in her left eye. He obtained and reviewed her medical records, did some research, consulted with at least one expert and filed a complaint in Hudson County Superior Court that May.
On June 1, Santiago failed to keep an appointment with Nostrame. Instead, he received her letter discharging him and instructing him to turn over her file to Roseland’s Mazie Slater Katz & Freeman. It said not to call her because her decision was final.
Nostrame called her anyway, trying to get an explanation, and wrote her a few days letter, defending his handling of the case. Santiago forwarded that letter to Adam Slater of the new firm, who wrote to Nostrame directing him to cease further contact with Santiago and demanding he turn over her file.
Litigation ensued. Mazie Slater was ordered to reimburse Nostrame for $1,654 in expenses. Nostrame’s fee lien was preserved during the litigation of the medical-malpractice case, which settled in December 2009 for $1.2 million.
In February 2010, Nostrame filed the tortious-interference suit, seeking a share of the $358,396 contingency fee. Mazie Slater contended that Nostrame was entitled to nothing because he filed the complaint prematurely and did little to advance the litigation. Nostrame countered with a certification describing the work he did and asserting he was entitled to fees at an hourly rate equivalent to one Slater used in an earlier filing.
The court awarded Nostrame $11,624 on a quantum meruit basis and ordered the rest of the fees held in escrow until the tortious-interference claim was resolved.
Superior Court Judge Edward O’Connor denied Mazie Slater’s motion to dismiss without prejudice, finding the complaint alleged facts which, if proved, would establish Santiago was induced to discharge Nostrame and thus he should have a chance to conduct discovery.
The Appellate Division reversed in a published opinion on June 10, 2011, finding conclusory Nostrame’s allegations about Mazie Slater’s wrongful means. The panel said there should be no discovery because of the potentially chilling effect on clients’ right to counsel of their own choosing.
The Supreme Court on Monday agreed but took a broader view of the types of conduct that could serve as wrongful means in "the unique context of attorneys," noting that some of the Rules of Professional Conduct "bear directly on the behavior in which they may and may not engage when seeking to attract clients."
Justice Helen Hoens said that while communications with prospective clients are generally permitted, there are limits on their content and timing, such as RPC 7.3(b)(1), prohibiting contact with persons whose physical, mental or emotional state interferes with exercise of judgment, RPC 7.3(b)(3), prohibiting communications that involve "coercion, duress or harassment" and RPC 7.3(b)(4), governing timing of contact with victims of mass disasters.
"[O]ur supervisory authority over attorneys, as expressed in the RPCs, creates a further series of limitations that bear upon whether an attorney who approaches a client already represented might be found to have utilized improper or wrongful means," Hoens said.
"It is not simply that they are prohibited from making statements about another attorney that are defamatory or that amount to fraud. Rather, they may not make misrepresentations, may not use tactics to pressure or harass, may not, except in defined circumstances, make comparisons, may not disparage other attorneys, and may not offer promises about results," she added.
Though behavior that would violate one of the RPCs thus could amount to wrongful means in the competition between attorneys for clients, the court also recognized that the lawyer-client relationship is terminable at will in view of clients’ paramount right to counsel of their own choosing.
"In that context, we are confident that there will be only rare circumstances in which an attorney will behave in a manner that could translate into a claim by another attorney for tortious interference," Hoens said.
Slater says he had never heard of a lawyer suing another for tortious interference before and the decision "makes it clear you won’t see [it] unless something really outrageous happens."
Shalom Stone of Walder Hayden & Brogan in Roseland, who represented the amicus State Bar Association, says the court adopted the middle ground he urged: allowing suit for tortious interference only if based on a specifically pleaded claim of wrongful action.
The bottom line is that "those claims will be permitted but only rarely will pass muster," he says.
Allowing Nostrame the discovery he sought about how Santiago came to change lawyers would have intruded on attorney-client privilege, he adds.
Nostrame, who was out of the office, did not return a call.
Justice Anne Patterson did not participate in the decision.