Can an attorney who is discharged by his client maintain a tortious interference with contract claim against the attorney who replaces him? In Nostrame v. Santiago, ___ N.J. Super. ___ (App. Div. 2011), the Appellate Division answered that question “no,” holding that “in the absence of any allegation that the successor attorney used wrongful means, such as fraud or defamation, to induce the client to discharge the original attorney, such an action is not maintainable.”
The plaintiff, Frank Nostrame (“Nostrame”), was a New Jersey attorney. On January 18, 2007, he was hired by defendant Natividad Santiago (“Santiago”) to represent her in a medical malpractice action. Nostrame did some preliminary work on the case and filed a complaint on May 23, 2007. Eight days later, Santiago entered into a contingent fee agreement with defendant law firm Mazie, Slater, Katz and Freeman (“Mazie Slater”) to represent her in the medical malpractice case. That same day, Santiago sent Nostrame a letter in which she discharged him and directed him to turn over his file to Mazie Slater.
Mazie Slater engaged in significant discovery and ultimately settled the case for $1,200,000. Pursuant to the contingent fee arrangement Mazie Slater had with Santiago, the attorneys’ fee was $358,396.31. For the legal work he performed, Nostrame asserted a $11,623.75 lien against that fee. The trial court agreed with Nostrame’s position on that issue and Mazie Slater paid him that amount.
In addition to the lien, Nostrame filed a tortious interference with contract action against Mazie Slater. In his complaint he asserted that Santiago “‘was induced to discharge [him] and dissolve the contingent fee contract between them by [Mazie Slater].’” The complaint also named Santiago and her daughter as defendants. Mazie Slater filed a motion to dismiss on behalf of both itself and the Santiagos. The trial court denied that motion. The Appellate Division granted the defendants’ motion for leave to appeal and reversed.
The court began its analysis by reviewing well-established caselaw concerning a client’s freedom to terminate the attorney-client relationship. Turning to the tortious interference with contract claim, the Appellate Division noted that New Jersey courts follow the principles contained in the Restatement (Second) of Torts (1979). The court reviewed the Restatement’s treatment of the tortious interference with contract cause of action and the elements that make up that claim. Applying the facts of the case to the test outlined in the Restatement for the tortious interference claim, the Appellate Division concluded that “plaintiff’s complaint does not state a cause of action against Mazie Slater for tortious interference with contract.”
The court buttressed that conclusion by emphasizing that the contract at issue was between a lawyer and his client. In that regard, the Appellate Division reasoned that “[w]hatever interest [Nostrame] may have had in maintaining his contract with Santiago was outweighed by her interest in exercising her right to select counsel of her own choosing, including her right to discharge [Nostrame], and to retain new counsel who she believed could better represent her in the medical malpractice action. … [T]he courts should not recognize a cause of action against for tortious interference with a contract between an attorney and a client that could impede the freedom of choice unless the alleged interference involves wrongful means, such as fraud or defamation.”
After pointing out that its conclusion was consistent with that of other jurisdictions, the Appellate Division addressed Nostrame’s argument that he should be permitted to conduct discovery to find out whether Mazie Slater utilized improper means. The court rejected that argument, pointing out that neither Nostrame’s complaint nor the certifications he provided in opposition to Mazie Slater’s motion to dismiss contained any such allegations. Moreover, the Appellate Division outlined its concern “that permitting discovery to proceed based on the kind of conclusionary allegations contained in plaintiff’s complaint could have a chilling effect upon a client’s exercise of the right to select counsel of his or her own choosing.” Furthermore, the court explained that Nostrame’s complaints against his former client and her daughter also failed; thus, it reversed the trial court’s order that denied the defendants’ motion to dismiss.