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Original WP 5.1 Version
(NOTE: This decision was approved by the court for publication.)
This case can also be found at 287 N.J. Super. 533.
SUPERIOR COURT OF NEW JERSEY
RAVICH, KOSTER, TOBIN, OLECKNA,
ELLIOT H. GOURVITZ,
Submitted December 19, 1995 - Decided February 29, 1996
Before Judges Michels, Villanueva and Kimmelman.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Union
Appellants Ravich, Koster, Tobin, Oleckna,
Reitman & Greenstein, submitted a pro se
brief (Bruce W. Radowitz, on the brief).
Elliot H. Gourvitz submitted a pro se brief.
The opinion of the court was delivered by
Plaintiff appeals from a Special Civil Part order,
purportedly based upon stipulated facts, that plaintiff is not
entitled to a referral fee under a written agreement with
defendant because the trial judge "found no authority to allow
the payment of referral fees in matrimonial actions." We reverse
and remand to the trial court to have judgment entered in favor
In October 1988 Michael N. Tobin, Esq., of the law firm of
Ravich, Koster, Tobin, Oleckna, Reitman and Greenstein, P.C.
(plaintiff), formerly Shevick, Ravich, Koster, Tobin, Oleckna and
Reitman, was consulted by Ninette Hoff who was seeking
representation in a matrimonial action. Plaintiff chose not to
undertake the representation but, instead, referred Hoff to
defendant Elliot H. Gourvitz, a certified civil trial attorney.
Tobin contacted defendant, then a member of the firm Gourvitz &
Braun, to discuss the referral. Gourvitz represented that a 25" referral fee would be paid to plaintiff as the money was received
from the client.
The total fee earned by defendant or his successors in the
Hoff matter as determined by the District Fee Arbitration
Committee was $29,271. The referral fee to be paid to plaintiff
according to the agreement was $7,317.75 or 25" of the total fee.
Defendant made payments totalling $2,110.25, which leaves a
balance allegedly due of $5,207.50.
Gourvitz & Braun, and all subsequent fees paid went into the
professional association which has since dissolved and has no
assets; Mr. Tobin referred the client to defendant's first firm,
Gourvitz & Braun, which engaged in her representation, and the
professional association took over that representation; there has
been no proof submitted of total fees received by the
professional association, only a statement that $14,271 was
previously paid and an Arbitration Determination which sets forth
the fact that an additional $15,000 was due by the client; there
is no proof before the court that any of those monies went
anywhere other than to the professional association; and at the
conference, it was stipulated that the Arbitration
Determination's figures were correct, but it was never stipulated
that these monies were received.
Plaintiff is a law firm with a
significant civil negligence practice.
Defendant is a matrimonial law specialist who
is coincidentally a certified civil trial
attorney. The New Jersey Supreme Court has
yet to establish a certification for
matrimonial trial attorneys. See
Certification Plan Vague, Says Family Bar,
138 N.J.L.J. 892 (Oct. 31, 1994).
Article 6, § 3, ¶ 3 of the New Jersey Constitution divides the Superior Court into different Parts. See generally D'Angelo v.
208 N.J. Super. 729, 732 (Ch. Div.
1986), which noted the jurisdictional limits
between the Superior Court Law
Division/Probate part and Chancery
This Court has found no authority to
allow the payment of referral fees in
matrimonial actions. The plaintiff's
complaint is therefore dismissed with
On appeal, plaintiff argues that R. 1:39-6(d) applies to the
referral of a matrimonial matter to a certified civil trial
attorney and defendant is personally liable for the fees based
upon the agreement he signed personally. The legal matter which
was referred to defendant, a certified civil trial attorney, was
the representation of a party in a matrimonial proceeding.
The judge dismissed the complaint relying on R. 1:39-6(d) which he ruled does not apply to Family Part matters since only civil or criminal trial attorneys are certified. This is an unduly restrictive reading of the rule. The Family Part is in the Chancery Division which is a civil court. R. 5:1-1, governing practice in the Chancery Division, Family Part,
specifically states that "[t]he rules in Part V shall govern
family actions. All family actions shall also be governed by the
rules in Part I insofar as applicable. Civil family actions
shall also be governed by the rules in Part IV insofar as
applicable and except as otherwise provided by the rules in Part
V." Part IV contains the rules governing civil procedure. There
is no prohibition in any of the foregoing Parts of paying a
referral fee. R. 1:39-6(d) does not prohibit payment by a
certified civil trial attorney, although solely a matrimonial
practitioner, of a referral fee to the referring attorney.
does not mean that such practice was prohibited when this
matrimonial matter was started and concluded nor does it mean
that R. 1:39-6(d) should not be enforced according to its plain
We reverse and remand to the trial court to have judgment entered in favor of plaintiff against defendant in the amount of $5,207.50, together with interest from the date the moneys were received by defendant or his law firms.
SUPERIOR COURT OF NEW JERSEY
RAVICH, KOSTER, TOBIN, OLECKNA,
ELLIOT H. GOURVITZ,
MICHELS, P.J.A.D., dissenting
I dissent because I believe that Judge Dietz in the Law
Division, Special Civil Part, properly held that plaintiff
Ravich, Koster, Tobin, Oleckna, Reitman & Greenstein could not
collect a referral fee from defendant Elliot H. Gourvitz in a
matrimonial action where plaintiff neither performed any service
nor assumed any responsibility in the management of the case.
(1) the division is in proportion to the services performed by each lawyer, or, by written agreement with the client, each
lawyer assumes joint responsibility for the
(2) the client consents to the
participation of all the lawyers involved;
(3) the total fee is reasonable.
The one exception to this fundamentally sound rule is when
cases are referred to a certified civil or criminal trial
attorney. R. 1:39-6 of the Rules of General Application, which
deals with the certification of attorneys as civil or criminal
trial attorneys, explains the effect of such trial attorney
certification. R. 1:39-6(d), which deals with the division of
R. 1:39-6(d) is admittedly broad and read literally would appear to permit referral fees by a certified civil trial attorney regardless of any services performed or responsibility assumed in the management of a case by the referring attorney. However, I believe that this rule should not be read or construed to permit referral fees in matrimonial actions. To permit referral fees in such cases, where the fee is based on an hourly rate for the services performed as distinguished from personal
injury contingent fee cases, where the fee is based on the amount
of the recovery, will not only increase the costs to matrimonial
litigants, but will undermine the dignity of and erode public
confidence in the legal profession.
7 U. Fla. L. Rev. 433, 434 (1954).]
Professor Geoffrey C. Hazard, Jr., also a well respected
authority on legal ethics, has commented that:
. . . If the professional who makes the
referral cannot competently perform the
necessary professional service, ethical
tradition requires him simply to forward the
case to one who can. He should not exploit
his knowledge about competent specialists to
collect a fee from a client who happens to
have come his way.
[Geoffrey C. Hazard, Jr., Realities of
Referral Fees Here to Stay, Nat'l L. J., Nov.
16, 1987, at 13.]
Some courts have expressed the same concerns with respect to
the legality and ethical propriety of referral fees. For
example, in McFarland v. George,
316 S.W.2d 662 (Mo. Ct. App.
1958), the Missouri Court of Appeals reversed a judgment that
awarded the plaintiff-attorney a portion of a fee allowed to the
defendant-attorney in a will contest where the plaintiff-attorney
performed no services and assumed no responsibility for managing
the case, emphasizing:
[Id. at 670-71.]
In construing the applicable Missouri Supreme Court Rule
4.34 (which is the same as former Canon 34 of the American Bar
Association and similar to RPC 1.5(e) of the New Jersey Rules of
Professional Conduct), the Missouri Court held that:
. . . .
Merely recommending another lawyer to a client or referring a client to another lawyer is not the performance of a legal service or the discharge of responsibility. Such a practice if approved would make the lawyer a mere broker and would destroy the professional standing of lawyers as such and in time would tear down the wall that separates them from non-professional groups. Such a practice would make them tradesmen in the market place. As we pointed out herein it was the practice of the bar prior to the adoption of Rule 4.34 to charge and pay a
finder's or referral fee. However, such a
practice or custom is unavailing as a
justification for its continuance in the face
of the plain intent of the rule. It was the
purpose of Rule 4.34 to condemn this
practice. No other meaning can be reached.
2d at 671-672 (emphasis in
Similarly, in Palmer v. Breyfogle,
535 P.2d 955 (Kan. 1975),
one attorney sued other attorneys to recover a forwarding or
referral fee of one-third of the total attorneys fee collected in
a divorce case. The plaintiff-attorney's claim was grounded on
DR 2-107, which differs from RPC 1.5(e), only in that it required
that any division of fees between attorneys be made in proportion
to the services performed and the responsibility assumed by each.
Model Code of Professional Responsibility DR 2-107 (1969). The
Supreme Court of Kansas reversed a judgment that awarded the
plaintiff-attorney a forwarding fee where he did not perform any
service or assume any responsibility in the divorce case, stating
[Id. at 965-66.]
The Kansas Supreme Court expressly "reject[ed] the concept
that `getting the client' is the performing of a legal service or
the assumption of a responsibility," id. at 969, and held that:
The plaintiff here should have been denied
relief for the simple reason that there was a
complete failure of proof by substantial
competent evidence that he performed any
services or assumed any responsibility
related to the divorce case where the
attorney fee was earned. It seems to us that
where a lawyer sues his client or anyone else
for services rendered, he should have some
reasonable idea and be able to state the
nature of the services which he performed and
the professional time and effort he expended
in rendering such services. We would require
no less of an artisan or a laboring man who
is seeking compensation on the basis of
In Moran v. Harris,
182 Cal. Rptr. 519 (Ct. App. 1982),
while the court upheld a forwarding fee arrangement under the
existing rules in California, it nonetheless observed that:
[Id. at 522 (citations omitted).]
More recently in New Jersey, in a notice to the bar, our
Supreme Court announced that it planned to adopt a separate
certification program for matrimonial law attorneys. See New
Jersey Law Journal, Nov. 27, 1995, p.2. The Court stated that
this program would be adopted without any referral fee provision
substantially for the reasons given by the Practice Committee on
General Procedures. Ibid.
In the Family Part Practice Committee Report, the
Subcommittee stated that:
[Supreme Court of New Jersey, Family Part
Practice Committee, General Procedures
Subcommittee, Report Concerning Family Lawyer
Certification and Referral Fees
("Subcommittee Report"), January 19, 1995, p.
5. (emphasis in original).]
The Subcommittee noted the comment in Carty, Note, Money for Nothing? Have the New Michigan Rules of Professional Conduct Gone Too Far in Liberalizing the Rules Governing Attorney
68 U. Det. L. Rev. 229, 250 (1991), in which the
author stated that:
[Id. at 29 (emphasis added).]
The Subcomittee concluded:
[T]he fee aspects of family law matters are,
in fact, different. They are almost
universally hour based. They are rarely
result oriented. They are almost never flat
Family law fees are treated differently by
the courts. In family law matters, counsel
fee applications are entertained pursuant to
R.4:42-9. Such applications are only
elsewhere permitted in a limited number of
cases, i.e. out of a fund in court; in
probate or foreclosure proceedings, or in an
action upon the liability or indemnification
policy of insurance in favor of a successful
claimant, among others. Matrimonial fees are
frequently involuntarily imposed upon the
opposing litigant. It is inconceivable that
the public would understand or accept a court
allowance of referral fees.
. . . The Subcommittee simply believes that referral fees in family actions are a bad idea, will not serve the public and, indeed, will increase the public's unfortunate perception about the family law practice, not
to mention cause a significant increase in
the costs of family law litigation.
[Id. at 30-31.]
In a subsequent report, the Subcommittee recommended that
"the certification program when approved should not contain
referral fees." Supreme Court of New Jersey, Family Part
Practice Committee, General Procedures Subcommittee, Addendum to
Report Concerning Family Lawyer Certification and Referral Fees
("Subcommittee Report Addendum"), July 10, 1995, p. 3.
Footnote: 1 The letter dated
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