Nostrame v. Santiago, 213 N.J. 109 (2013). When a personal injury plaintiff in a potentially big case switches attorneys, the attorney being replaced may see a potentially large fee disappearing. It is tempting for that attorney to believe that the new attorney tortiously interefered in order to get the client. This case involved just such allegations. The substituting law firm, Mazie Slater Katz & Freeman, LLC (“Mazie Slater”) filed a motion to dismiss the tortious interference claim that its predecessor, the plaintiff here, filed against it and the client. The Law Division denied the motion. The Appellate Division granted Mazie Slater’s motion for leave to appeal and reversed. Nostrame v. Santiago, 420 N.J. Super. 427 (App. Div. 2011), discussed here. Plaintiff sought review in the Supreme Court. In a unanimous opinion by Justice Hoens, the Court affirmed the dismissal of plaintiff’s case. [Disclosure: I have been, and currently am, co-counsel with Mazie Slater in unrelated matters].
Justice Hoens began by noting that a client is always free to discharge his or her attorney. Nonetheless, successor attorneys are not free to induce someone else’s client to change counsel by any means available. “There can be no doubt that inducing another to end a contractual relationship through acts that amount to fraud or defamation would be wrongful.” Such improper conduct would form a basis for a tortious intereference claims against an attorney just as it would in any other context. “In the unique context of attorneys, however, there are other acts that could also be considered to be wrongful means.” Among these are violations of certain Rules of Professional Conduct, such as those banning misrepresentations, pressure tactics, or promises of results.
With that standard in mind, Justice Hoens turned to the particular facts here. The only facts that plaintiff had alleged were that his client “had failed to appear for a meeting, discharged her attorney, asked that her file be transferred, and directed that the former lawyer not contact her.” Plaintiff admitted that he had no evidence of wrongful conduct, and that he had filed suit in hopes of discovering facts that would support his perception of tortious interference. Even under the very generous standard of review of motions to dismiss under Rule 4:6-2(e), plaintiff’s allegations were insufficient to state a claim. Nor, despite the Court’s general rule that dismissals under Rule 4:6-2(e) should normally be without prejudice to repleading, Justice Hoens found no reason to allow that here, since “plaintiff conceded that he had no further facts to plead.”
The Court ended its opinion by concluding that, under the legal test announced in this ruling, “there will be only rare circumstances in which an attorney will behave in a manner that could transalte into a claim by another attorney for tortious interference.” Since those circumstances are so limited, and because some of those circumstances entail fraud and other fact patterns that are already required to be pleaded with particularity under Rule 4:5-8(a), Justice Hoens stated that any future complaint based on a theory comparable to that of this case “plead the facts and circumstances that constitute the allegedly wrongful means with specificity and particularity.” The Court imposed that pleading standard in order to vindicate the “paramount … right of the client to choose counsel freely.”