Infante v. Gottesman

• Decision Date: 16 May 1989
• Citation: 233 N.J.Super. 310,558 A.2d 1338
• Parties: Anthony F. INFANTE, Plaintiff-Appellant, v. Michael H. GOTTESMAN, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 310

233 N.J.Super. 310

558 A.2d 1338

Anthony F. INFANTE, Plaintiff-Appellant, v. Michael H. GOTTESMAN, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued March 14, 1989.

Decided May 16, 1989.

Robert M. Anderson, for plaintiff-appellant (Gertler & Hanna, Wall, attorneys).

Allan J. Shechet, Wanamassa, for defendant-respondent (Shechet & Spector, attorneys).

Before Judges MICHELS, LONG and KEEFE.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiff Anthony F. Infante appeals from a summary judgment of the Law Division entered in favor of defendant Michael H. Gottesman, an attorney-at-law licensed to practice in the State of New Jersey, in this action to recover damages on theories of breach of contract and quantum meruit arising out of the performance of investigative, paralegal and other services involving defendant's law practice.

Plaintiff, who ran an investigation service specializing in workers' compensation and personal injury litigation, entered into an agreement with defendant whereby plaintiff was to receive 50% of the legal fees generated by the matters that he brought into defendant's law office. This agreement was memorialized by a letter dated August 5, 1975, which reads as follows:

Dear Tony

I will give you 50% of everything you bring in. If you go into business with me we will draw the same money. I consider us full and equal partners.

/s/ Michael H. Gottesman

Subsequently, the agreement was modified to provide that one-third of the gross receipts from these matters would be allocated to overhead and the remaining two-thirds would be shared equally by plaintiff and defendant. From the record, it is difficult to determine with any certainty the intended scope of the parties' business relationship. Plaintiff indicates, however that his paralegal and investigative services, which included "reviewing files, contacting insurance companies and talking to witnesses," were performed "in addition to [his] duties pursuant to his written agreement with defendant." In any event, plaintiff asserts that his employment with defendant was terminated in November 1981, at which time defendant "stopped making any and all payments."

Plaintiff instituted this action to recover damages in the sum of $80,000. In the first count of the complaint, he charged defendant with breach of the August 5, 1975, contract and sought to recover, pursuant to the terms of the contract, his share of the gross receipts generated by the matters that he had originated. In the second count, plaintiff sought to recover on theories of quantum meruit and constructive contract for investigative and paralegal services that he had performed with respect to "approximately 40 investigations and other files." On July 8, 1986, the trial court granted summary judgment in defendant's favor on the first count of the complaint, reasoning essentially that defendant was prohibited from entering into an agreement by which a partnership was formed with a nonattorney for the purpose of practicing law. On the second count, the trial court granted partial summary judgment in defendant's favor, thereby barring plaintiff from recovering for any investigative or paralegal services performed with respect to all matters in which he had been the originating party. The trial court held, however, that plaintiff could pursue his claim for the reasonable value of the investigative and paralegal services performed with respect to all matters in which he had not been the originating party.

Thereafter, plaintiff furnished defendant with a list of the 40 matters for which he had allegedly performed services and served defendant with a subpoena ordering the production of all files dated from August 5, 1975, through November 30, 1981. On January 8, 1987, at a pretrial conference, the parties agreed that (1) defendant would make available to plaintiff his workers' compensation and personal injury-negligence files dated from January 1, 1975, through December 31, 1981; (2) plaintiff would identify and itemize any claims with respect to these matters, and (3) plaintiff would execute a consent judgment in defendant's favor with respect to the 40 matters referred to in the second count of the complaint. On March 12, 1987, the trial court entered a consent summary judgment order with respect to plaintiff's claims on the 40 matters.

After an inspection of defendant's files, plaintiff asserted a claim for services that he had performed on approximately 139 matters. On February 19, 1988, defendant moved for summary judgment with respect to these matters. In his papers in support of this motion, defendant separated the 139 matters into categories and argued that the claims on these matters were barred (1) by the six-year statute of limitations under N.J.S.A. 2A:14-1; (2) by the consent summary judgment order of March 12, 1987; (3) by the partial summary judgment order of July 8, 1986, or (4) because plaintiff had already been paid for his services. Plaintiff neither appeared at oral argument on defendant's motion nor submitted a certification, brief or any documents in opposition to the motion. In fact, plaintiff specifically indicated prior to the court's disposition on the motion that he would not oppose defendant's motion. In his brief on appeal, plaintiff asserts that his failure to offer any opposition to the motion was due to the fact that he had decided to appeal the summary judgments once they became final. On March 31, 1988, the trial court granted summary judgment in defendant's favor, reasoning that the claims were barred by the earlier summary judgment orders and the six-year statute of limitations. Plaintiff appeals.

Plaintiff acknowledges that the August 5, 1975, contract was void and unenforceable. He contends, however, that the trial court erred in granting summary judgment because it should have allowed plaintiff to pursue recovery on theories of quantum meruit and constructive contract for services rendered with respect to all matters that he had brought into the office. We disagree.

Rule 5.4 of the Rules of Professional Conduct, ¹ in pertinent part, provides:

(a) A lawyer or law firm shall not share legal fees with a nonlawyer....

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(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

RPC 5.5, which prohibits the unauthorized practice of law, in pertinent part, provides:

A lawyer shall not:

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(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

Furthermore, N.J.S.A. 2A:170-78 provides:

Any person not licensed as an attorney or counselor at law, and any corporation that:

a. Engages in this state in the practice of law; or

b. Holds himself or itself out to the public, either alone or together with, by or through any other person, whether such other person is so licensed or not, as engaging in or entitled to engage in the practice of law, or as rendering legal service or advice, or as furnishing attorneys or counsel in legal actions or proceedings of any nature; or

c. Assumes, uses or advertises the title of lawyer or attorney at law, or equivalent terms, in the English or any other language--Is a disorderly person.

N.J.S.A. 2A:170-83 provides:

Any person not licensed as an attorney or counselor at law who solicits, advises, requests or induces any person in this state to institute or prosecute any suit for damages in which the person soliciting, advising, requesting or inducing the institution of such suit by agreement or otherwise, directly or indirectly, receives from the persons solicited to institute or prosecute such suit, or his attorney, any compensation dependent upon the amount of the recovery in any such suit, or in which the compensation of any attorney for instituting or prosecuting such suit directly or indirectly depends upon the amount of the recovery therein, is a disorderly person.

N.J.S.A. 2A:170-85 provides:

Any person who, for pecuniary gain, solicits any person or corporation to engage, employ or retain either himself, any lawyer or any other person to manage, adjust or prosecute any claim, cause of action or action at law, against any person or corporation, for damages for negligence, or who, for pecuniary gain, directly or indirectly solicits other persons to begin actions at law to recover damages for personal injuries or death, is a disorderly person.

Thus, a lawyer is prohibited from entering into a partnership agreement with a nonlawyer where any of the partnership activities consist of the practice of law or where the lawyer shares legal fees with a nonlawyer. See RPC 5.4(a) and (b); Matter of Weinroth, 100 N.J. 343, 344, 495 A.2d 417 (1985); N.J. Advisory Committee on Professional Ethics, Opinion 56. Similarly, it is a disorderly persons offense for a nonlawyer to engage in the practice of law or to solicit legal work for or on behalf of a lawyer. See N.J.S.A. 2A:170-78; N.J.S.A. 2A:170-83; Ready v. National State Bank of Newark, 117 N.J.L. 554, 558, 190 A. 76 (E. & A.1937); Peraino v. De Mayo, 13 N.J.Misc. 233, 239, 177 A. 692 (C.P.1935). An agreement between a lawyer and a...