Lawyers

November 4, 2022

Attorney Agreement Barring Solicitation of Clients Enforceable

An agreement that barred a lawyer from soliciting clients within a geographic area was unenforceable after the lawyer left the firm under the rules governing the professional conduct of attorneys.
An agreement prohibiting a former associate attorney from soliciting clients of the firm after his resignation may be enforceable in New York, thus a case alleging a breach of that agreement could proceed to trial.
Attorney Rule of Professional Conduct 5.1 that prohibits restrictions on the practice of law is unlikely to shield non-attorneys who act on behalf of a lawyer from liability.

Can a lawyer be prohibited from soliciting the clients of his former firm? The general rule is that restrictions on the practice of law, including any non-competition agreements, are void and unenforceable.

It came as a surprise to me, therefore, that the appellate division in the first department in New York had affirmed the trial court’s decision that let a case go to trial alleging the breach of a non-solicitation agreement signed by a former lawyer.

The case is Feiner & Lavy v. Zohar. Here are the three most important holdings in the decision. First, an agreement prohibiting a former associate of a law firm from competing with his former employer within 90 miles of New York City was void and unenforceable. Continue reading

June 9, 2021

Non-Solicitation Agreement May Be Enforceable Against Former Attorney

by Jay R. McDaniel, Esq.

An agreement prohibiting a former associate of a law firm from competing with his former employer within 90 miles of New York City was void and unenforceable.
Solicitation of the clients of a law firm by a former associate may be actionable, even if a potential restriction on practice, in limited circumstances.
The rule of professional conduct that precludes restrictions on practice will not bar a claim against a former non-lawyer employee.

June 7, 2021

Charging Lien Claim Requires Trial by Jury

by Jay R. McDaniel, Esq.

A charging lien protects the interest of a lawyer in fee that is to be paid from a contingent-fee recovery. A statutory lien may be enforced through a petition filed in an underlying action.
The amount of a charging lien, and the lawyer’s compensation, is determined using principles of quantum meruit, or “so much as he deserves. Quantum meruit creates an implied contract to pay an amount based on the contribution of the former lawyer to the ultimate result.
A charging lien claim is subject to the general requirements for trial by jury. Once a jury trial is demanded by either party, it can be waived only with consent. Whether a party is entitled to trial by jury depends on whether a jury trial is available in the underlying action.

New Jersey’s attorney charging lien statute (N.J.S.A. 2A:13-5) permits a discharged attorney to file a lien petition in a matter makes clear that the trial court has the authority, in the first instance, to establish and enforce the charging lien, but it is silent on the issue of whether a jury trial is required to determine the ultimate outcome. jury-box

When is a Charing Lien Subject to Trial by Jury?

That question – jury trial or not – is likely to turn on where the case was pending at the time the lien was asserted, according to a decision of the Appellate Division of Superior Court in Toscano Law Firm v. Haroldson (opinion here). The appellate reversed the trial court’s decision in a long-running fee dispute, made without a jury, and remanded the dispute for a new trial.

Thus, although discharged attorneys in contingent-fee matters are generally compensated under principles of quantum meruit, an implied contractual theory that is equitable in nature, the parties may have a right to trial by jury. In the Toscano, litigation, the Appellate Division held, the trial court had confused the equitable nature of a quantum meruit claim with the fact that it is a legal remedy. (The quantum meruit claim is one that results in money damages payable to the successful charging lien petitioner.) Continue reading

An agreement that barred a lawyer from soliciting clients within a geographic area was unenforceable after the lawyer left the firm under the rules governing the professional conduct of attorneys.

An agreement prohibiting a former associate attorney from soliciting clients of the firm after his resignation may be enforceable in New York, thus a case alleging a breach of that agreement could proceed to trial.

Attorney Rule of Professional Conduct 5.1 that prohibits restrictions on the practice of law is unlikely to shield non-attorneys who act on behalf of a lawyer from liability.

An agreement prohibiting a former associate of a law firm from competing with his former employer within 90 miles of New York City was void and unenforceable.

Solicitation of the clients of a law firm by a former associate may be actionable, even if a potential restriction on practice, in limited circumstances.

The rule of professional conduct that precludes restrictions on practice will not bar a claim against a former non-lawyer employee.

A charging lien protects the interest of a lawyer in fee that is to be paid from a contingent-fee recovery. A statutory lien may be enforced through a petition filed in an underlying action.

The amount of a charging lien, and the lawyer’s compensation, is determined using principles of quantum meruit, or “so much as he deserves. Quantum meruit creates an implied contract to pay an amount based on the contribution of the former lawyer to the ultimate result.

A charging lien claim is subject to the general requirements for trial by jury. Once a jury trial is demanded by either party, it can be waived only with consent. Whether a party is entitled to trial by jury depends on whether a jury trial is available in the underlying action.

When is a Charing Lien Subject to Trial by Jury?