Lerner v. Laufer

819 A.2d 471 (2003)

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Nature of the Case

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Facts

W was married to Michael H. Lerner on November 1969 and had been married to him 24 years when he filed an action for divorce in 1994. The couple had two children born in 1974 and 1976. Michael contacted a New York lawyer, Brett Meyer, who represented him and his company in New York, but who also was a friend of the family and trusted by W, to mediate a property settlement agreement (PSA). That mediation resulted in a comprehensive written PSA. Meyer then gave W a list of New Jersey attorneys to consult prior to signing the agreement. That list had been given to Meyer by James Andrews, a New Jersey attorney who would represent Michael in the divorce proceedings. Andrews did alert D, that Lynne might call, and on January 26, 1994, sent him a draft of the mediated PSA. D is an experienced matrimonial attorney and held himself out as a specialist in the field. W called D and they set a meeting. When they met for the first time D produced a two-page letter for W to consider. The letter confirmed that W retained D as her attorney and confirmed that D had not conducted any discovery in this matter nor reviewed income tax returns or other financial documentation to confirm or verify income and that D had no information concerning the gross and net values of the properties and stock at issue. D stated that he was not in a position to advise W as to whether or not the Agreement is fair and equitable and whether or not W should execute the Agreement as prepared. It stated that D made some suggestions for change and that after discussion it was W's opinion that the PSA was fair and equitable. The agreement provided W with a substantial amount of assets in excess of Three Million Dollars, and that she will be receiving alimony payments as well. The letter confirmed that W accepted D's services based upon the representations specifically set forth above and that under no circumstances will W now or in the future be asserting any claims against D arising from the negotiation or execution of the PSA. W read and signed the letter. Five days later, a standard retainer agreement was sent which W signed and returned. It provided in part: The legal services which I anticipate will be rendered to you will involve legal research and factual investigation as to (i) assets which you owned at the time you were married, assets which were acquired over the course of the marriage; (ii) income and your ability/need for support; (iii) grounds for divorce; (iv) custody and visitation, and (v) payment of counsel fees and costs. It also provided that P: will have the benefit of D's advice and my prediction of the likely results if the matter were not settled, and were instead submitted for judicial resolution. At an uncontested divorce proceeding, W took the stand and confirmed her complete understanding of the agreement when questioned by D including her waiver of full investigation into all aspects of the agreement. D also asked: 'And have you been satisfied with the services that I've rendered to you in this matter?' And P answered, 'Yes.' The divorce was granted, and the PSA was incorporated into the final judgment. During mediation, representations were made to W that a decision had been made not to take Marisa public. Within two months of the entry of the divorce, she discovered that Marisa Christina was about to proceed with an initial public offering. W became outraged. W engaged Bruce Nagel and moved to set aside the Judgment of Divorce as fraudulent. She also instituted a suit against Meyer. Judge Glickman, finding that both parties had lied about the cause of action, vacated the judgment of divorce and dismissed the complaint. The judge, however, 'took no position' with respect to the validity or enforceability of the PSA. A second amended PSA was agreed upon, a divorce action was re-filed, and the parties appeared for a second uncontested divorce proceeding. W commenced the present malpractice action against D. D moved for summary judgment. W's expert claimed that D breached his duties of competence, faithfulness and good judgment in failing to discuss the current state of the law with his client and in failing to advocate on her behalf for a truly 'equitable distribution' of the marital assets. A review of the original PSA would raise a red flag for the ordinary attorney representing someone in a marriage of over twenty years. The expert also found that D's asserted breaches were a proximate cause of damages to W. The judge granted D's motion for summary judgment dismissing the complaint. The judge upheld the limitations of representation in the initial retainer letter.