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DINTER v. SEARS, ROEBUCK & CO.
278 N.J. Super. 521 (1995)
651 A.2d 1033
RIKI DINTER AND ELLIOTT DINTER, PLAINTIFFS-APPELLANTS,
v.
SEARS, ROEBUCK & COMPANY, DEFENDANT, AND BERTRAM SIEGEL, AND SIEGEL & SIEGEL, INTERVENORS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued November 28, 1994.
Decided January 10, 1995.
Before Judges PETRELLA, HAVEY and BROCHIN.
Bennett J. Wasserman argued the cause for appellants.
Bertram Siegel argued the cause for respondents Bertram Siegel and Siegel & Siegel (Bertram Siegel, of counsel; Todd Siegel, on the brief).
Frank P. Addas appeared on behalf of defendant Sears, Roebuck & Company (Addas & Potenza, attorneys; Mr. Addas, on the briefs).
The opinion of the court was delivered by PETRELLA, P.J.A.D. On this appeal we decide what is in essence a fee dispute between successive trial attorneys, arising from an order of the trial court allocating fees following disposition of a negligence case. After a no cause of action in the first trial, and a reversal and remand following an appeal, the second trial attorney settled the underlying negligence action. The trial judge, over objection, awarded intervenor-respondent Bertram Siegel and his law firm of Siegel & Siegel a $45,000 quantum meruit fee, and $7,656.68 as reimbursement of costs and disbursements made by the Siegel firm prior to and during the trial on behalf of plaintiffs Riki and Elliott Dinter. This appeal has its origins in a slip and fall negligence case which Siegel tried to a no cause of action before a jury in 1990.1 The Dinters desired to appeal but Siegel would not proceed unless they forwarded the costs for appeal, particularly transcript costs,
despite Siegel's previous practice under the parties' contingent fee agreement of advancing costs at the trial level. The Dinters retained alternate counsel, appealed, and we reversed and remanded the case for another trial.2 The Dinters thereafter retained Bennett J. Wasserman as their trial attorney under a new contingent fee agreement with him. Sears settled with the Dinters for $850,000 before trial. Siegel then claimed entitlement to a portion of the $218,226.79 due Wasserman as fees under his contingent fee agreement with the Dinters.3 The Dinters argue the Siegel firm is not entitled to a fee or any portion of Wasserman's fee. They assert that their contingent fee agreement with Siegel ended upon entry of the adverse judgment or by mutual agreement when the Siegel firm refused to advance the funds for transcripts for an appeal and instructed the Dinters to obtain new attorneys. The Dinters essentially argue that a quantum meruit award cannot be sustained here, particularly when there was a valid contingent fee agreement in effect. In the alternative, they argue that the Siegel firm breached the retainer agreement and terminated it by refusing to proceed with the appeal, except on new terms, and by refusing to file a notice of appeal. Finally, they argue that the award of quantum meruit fees is contrary to public policy and New Jersey Court Rules. I.The Dinters retained the Siegel firm in connection with Riki Dinter's slip and fall on November 30, 1987. Riki Dinter and
Siegel signed a pre-printed form contingent fee agreement4 containing the following language: * * * * * * * *
1. We are informed that the Dinters turned down a $900,000 offer of settlement before or at the first trial. 2. The history of the matter and our reversal of the jury verdict on somewhat narrow grounds is recounted in Dinter v. Sears, Roebuck & Co.,252 N.J.Super. 84, 599 A.2d 528 (App.Div. 1991). 3. The Dinters have apparently received their portion of the settlement. The second trial attorney, Bennett J. Wasserman would receive $146,910.69 in attorney's fees and $18,659.42 for disbursements as a result of the order on appeal. 4. The fee agreement recited that Riki Dinter rejected an alternative legal fee plan and accepted the contingent fee arrangement. It also stated: "The Law Firm may ask that the Court require you to pay a greater legal fee, if the agreed upon fee is too low in light of the time and effort which the Law Firm exerts on your behalf...." 5. R. 1:21-7(d) states in relevant part:
The permissible fee shall include legal services rendered on any appeal or review proceeding or on any retrial, but this shall not be deemed to require an attorney to take an appeal. 6. See Dinter v. Sears, Roebuck & Co., supra (252 N.J. Super. at 95-96, 599 A.2d 528). 7. Of course, the pleadings were on file and were public records, and many of the documents had to be used in the appendix on the first appeal. At oral argument plaintiffs' attorney indicated in response to an inquiry from the court that new medical examinations and reports were needed to update Dinter's condition. 8. See infra note 9. 9. The philosophy set forth in RPC 1.8(e) is carried forward from the 1973 amendment of the predecessor Disciplinary Rules, specifically DR 5-103(B) as amended effective September 10, 1973. The RPC replaced the DRs effective September 10, 1984. The comment to the September 10, 1973 predecessor rule (DR 5-103(B)) stated the probable rationale for the change:
The substance of the change was the elimination of the requirement that the client remain ultimately liable for costs and litigation expenses. The change was apparently motivated by the universal practice by which an attorney, who represents a client on a contingent-fee basis, declines to sue his client for reimbursement of advanced expenses, or to take any other action to collect the litigation expenses from his client where there has been no recovery. The effect of the rule change, therefore, is to ensure that the prevailing practice of the bar will not constitute an ethical violation. [Pressler, 1984 N.J. Court Rules, comment R. 1:14.] 10. Cf. LaMantia v. Durst,234 N.J.Super. 534, 561 A.2d 275 (App.Div. 1989) (where attorney moved to different law firm during a case the firm was entitled to quantum meruit). 11. See R. 1:11-3 which provides in part:
The responsibility of an attorney of record in any trial court with respect to the further conduct of the proceeding shall terminate upon the expiration of the time for appeal from the final judgment or order entered therein. There can be little question that Siegel was not required to prosecute the appeal after the adverse jury verdict. It would thus be irrelevant whether prior practice would warrant the Dinters' belief that he would advance transcript costs for an appeal. Moreover, as noted, the client has the right to discharge the attorney at any time. See Cohen v. Radio-Electronics Officers,275 N.J.Super. 241, 252-253, 645 A.2d 1248 (App.Div. 1994).
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