Monday, June 9, 2014

New Jersey State Bar Opposes Counsel Fee Award in Breach of Fiduciary Duty Case

A Bergen County, New Jersey jury, in Innes v. Marzano-Lesnevich, awarded damages to a father who lost all contact with his child when his estranged wife took the child to Spain where courts refused to honor the custody order of the American courts.  The abduction was enabled by a lawyer who succeeded to custody of the child's passport but released it to the mother contrary to an escrow agreement.
The Appellate Division affirmed that Marzano-Lesnevich breached her duty as escrow agent, and awarded counsel fees to the plaintiff father, a beneficiary of the agreement.  Now the New Jersey State Bar Association has filed a brief protesting the extension of the fee shifting rule to a case in which the plaintiff in the legal malpractice case is not a client of the defendant lawyer.
I am the plaintiff's expert on liability whose qualifications are faulted by the NJSBA.  The brief, ironically, is signed ex officio by newly installed NJ State Bar President Paris Eliades, who recently appointed me to the Association's amicus committee.  I was not a member at the time this issue came up and would, in any event, have been recused. The NJSBA press release follows. - GWC
NJSBA amicus in case over use of American Rule 
New Jersey generally sticks to The American Rule controlling assessment of attorney fees, whereby litigants are expected to pay their own counsel fees. It’s prevailed since 1796, although the courts have permitted some exceptions.
But a recent ruling from the Appellate Division of the superior court has turned this philosophy on its head by permitting a client to sue his adversary’s attorney for legal malpractice. The April 7, 2014, decision – now before the New Jersey Supreme Court – is fundamentally unfair, inconsistent with the high court’s prior decisions and should be reversed, according to the friend-of-the-court brief filed last week by the New Jersey State Bar Association.
In Peter Innes v. Madeline Marzano-Lesnevich, Esq. and Lesnevich and Marzano-Lesnevich, a lawyer and her Hackensack firm were hit with a judgment for the role they played in the case. Circumstances resulted in international child abduction.
“The matter is of grave concern to the New Jersey State Bar Association as it, for the very first time in New Jersey jurisprudence, permits a party lacking privity to sue an opposing counsel in negligence theory, and thereafter, pursue an award of counsel fees under Saffer v. Willoughby, 143 N.J. 256 (1996), a result never addressed or intended by this Court,” wrote Dennis Drasco and Arthur M. Owens, of Lum, Drasco & Politan LLC, and Frugan Mouzon, of Gibbons P.C. NJSBA President Paris P. Eliades signed the amicus brief, which also asks the Supreme Court to express the degree of specialization necessary to serve as an expert witness in legal malpractice claims.
 “The court mistakenly allowed a law professor with little, if any, experience in matrimonial law to offer testimony against an experienced, practicing matrimonial attorney in a legal malpractice action alleging negligence in a family law matter,” the brief states. 
The case stems from the divorce between Peter Innes and Maria Jose Carrascosa, who married in 1999. Carrascosa, a native of Spain, is a lawyer admitted to practice in the European Union. Their daughter, Victoria, was born in Secaucus in 2000. In 2004, Carrascosa obtained a domestic violence temporary restraining order against Innes, after which Victoria flew to Spain in the custody of a maternal grandparent. She never returned, despite legal attempts by her father. At trial, Innes asserted the separation caused him emotional distress, and a jury awarded him nearly $1 million.
The appeal concerns the duty to safeguard the child’s passport, outlined in a 2004 parenting agreement when West Caldwell solo practitioner Mitchell Liebowitz represented Carrascosa. That agreement forbade either parent from traveling outside the U.S. without the other parent’s consent, and Liebowitz was to hold the child’s U.S. passport in trust. However, both parents repudiated the agreement, and the mother retained the Marzano-Lesnevich firm. An associate there requested the file, and Liebowitz responded by asking that a messenger pick it up. The passport arrived at the firm, but eventually went missing. Lesnevich later testified that she gave the passport to the child’s mother. 
In 2004 a New Jersey court granted Innes custody. When Victoria’s mother did not return the child, she was incarcerated after returning to New Jersey for the divorce trial.

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