Nostrame v. Santiago, 420 N.J. Super. 427 (App. Div. 2011). Many attorneys have seen a potentially lucrative case walk out the door because the client has decided to switch attorneys. The temptation is to sue someone, perhaps the successor counsel. That is what plaintiff did here, suing for tortious interference. The trial court denied the successor’s motion to dismiss the case. The Appellate Division, however, granted leave to appeal and held that no suit could lie against the new attorney because there were no allegations that the new attorney had acted wrongfully. Judge Skillman wrote the opinion.
A medical malpractice client, Santiago, had retained plaintiff to bring suit. Plaintiff had “performed certain preliminary work,” and had filed a complaint. Eight days after the complaint was filed, Santiago signed a retainer letter with new counsel and sent plaintiff a letter discharging him as counsel. Successor counsel ultimately settled the case for $1.2 million. Pursuant to the successor’s fee agreement, that settlement gave rise to a fee of over $358,000. Plaintiff asserted a lien in the amount of $11,623.75 on that fee. He was eventually paid that sum by the successor. But plaintiff also alleged that the successor had induced Santiago to discharge him in favor of the successor, which plaintiff claimed constituted tortious interference with contract. The Appellate Division disagreed.
Judge Skillman began by noting that a client is free to terminate a contract with an attorney at any time without risking suit for breach of contract. The issue, however, was whether the successor counsel could be sued for tortious interference. The panel observed that New Jersey follows the Restatement (Second) of Torts in evaluating tortious interference claims. Section 768(1) of the Restatement addresses the case of alleged tortious interference by a competitor. That section states that there is no tortious interference if the competitor “does not employ wrongful means,” does not “create or continue an unlawful restraint of trade,” and has the purpose, “at least in part, to advance his interest in competing with the [tortious interference plaintiff].”
Applying this test, Judge Skillman found that plaintiff had no right of action. He had not alleged wrongful means or restraint of trade, and it was undisputed that the successor counsel’s actions were motivated, at least in part, to advance the successor’s own legitimate economic interests. Moreover, the client, Santiago, was free to change counsel without penalty. Judge Skillman noted that cases in other jurisdictions agreed with the Appellate Division’s result here, except for one “but see” reference.
Plaintiff admitted that he had not alleged wrongful means, but demanded the right to take discovery to see whether wrongful means might be revealed. Judge Skillman rejected that idea. “New Jersey is a ‘fact’ rather than a ‘notice’ pleading jurisdiction, which means that a plaintiff must allege facts to support his or her claim rather than merely reciting the elements of a cause of action.” Having failed to allege wrongful means in the complaint, plaintiff could not demand discovery in the hopes of “dredg[ing] up” that essential element.
This was the right result. Allowing suits over a client’s legitimate decision to change counsel would burden that right, and would discourage attorneys from accepting clients who already have counsel but want to switch.
This case represents a rare instance in which the Appellate Division ruled summarily on an aspect of the case in granting leave to appeal. The court summarily reversed an order of the court below that had denied plaintiff recovery on his $11,000 lien. The Appellate Division has the power to rule summarily on a motion for leave to appeal, under Rule 2:11-2, but that does not happen often.