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No Fees if Not Legal Malpractice

Monday, October 22, 2018   (0 Comments)
Posted by: Tom Jensen
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Agreement for provision of legal defense work in a criminal matter provided for a flat fee regardless of amount of time spent. Client contended he was only offered the flat fee, and was given no other option, contrary to counsel's testimony. After minimal work the state declined to prosecute client and he sued demanding an accounting and asserting legal malpractice. Client alleged entitlement to fees to prosecute the action. Trial court dismissed LPL claim and refused to award fees (to bring the fee disgorgement claim). Ruling was affirmed in Schildiner v. Toscano, 2018 WL 4904726 (N.J. App. Oct. 10, 2018). Client argued failure to return unearned fees per the ethics rules amounted to malpractice. Court noted a rule violation can inform the SOC issue but it cannot by itself sustain an LPL claim. The case involved a fee dispute, not a legal malpractice claim, and thus fees incurred in bringing the fee disgorgement claim were not recoverable. This was not a case in which fees were recoverable when incurred for incompetent representation.   


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