NJ Supreme Court’s Parenting Coordinator issued an opinion today. Amy Wechsler and Hanan M. Isaacs represented the amicus curiae (“friend of the court”), Association of Family and Conciliation Courts (AFCC) – NJ Chapter, in the case.

Monday, August 2, 2010

Segal v. Lynch (NJ Supreme Court)

N.J. Supreme Court Defines Fees Due Attorneys Acting as Parenting Coordinators

An attorney appointed as a parenting coordinator can bill for time spent answering the grievances of an angry parent but not for time spent defending herself in court, the New Jersey Supreme Court rules.

Michael Booth

An attorney appointed as a parenting coordinator can bill for time spent answering the grievances of an angry parent but not for time spent defending herself in court, the New Jersey Supreme Court ruled on Thursday.
“We perceive in this record no basis on which to conclude that attorneys who represent themselves are entitled to be paid for their time when all other litigants who choose to represent themselves would be denied such compensation,” Justice Helen Hoens wrote for the court in Segal v. Lynch, A-127-10.
However, the court found that Rule of Professional Conduct 1.5 applies only to lawyers defending themselves against ethics grievances and not to parenting coordinators, as Linda Schofel was in this particular role.

“Although Schofel is an attorney whose conduct is generally governed by the RPCs, we do not extend that prohibition found in RPC 1.5 to an attorney, acting as a parenting coordinator, in the circumstances presented in this appeal,” she said.

“We decline to do so because the very nature of grievances against a parenting coordinator, and the mechanism for resolution of those grievances found in the [Parent Coordinator Pilot Program Implementation Guidelines], is fundamentally different from the ethics grievances against attorneys and the system we have created for raising and adjudicating them that is the focus of RPC 1.5.”

Since a retainer agreement between Schofel and the parents involved in the custody dispute, Moses Segal and Cynthia Lynch, called for her to be compensated for writing reports, and because Segal, the angry parent, seemingly agreed to pay for her to respond his grievances, she should be compensated for that, Hoens said.

Lynch and Segal, common law spouses in Canada who separated in 2001, had been litigating for years over their two children.
Schofel, of Newman, McDonough, Schofel & Giger in Roseland, who is also a licensed social worker, was named to the case shortly after the launch of the state’s parenting coordinator program.

A three-way retainer agreement made Segal and Lynch equally responsible for Schofel’s $325 hourly fee unless she determined one side was abusing the process.

Segal took issue with Schofel’s performance, demanded her recusal and later detailed 20 grievances against her. Schofel told him she would bill him for the time it took her to respond. She clocked 100 hours preparing an 89-page response with two volumes of exhibits, which came to $33,304.

In grievance cases involving parenting coordinators, the allegations are handled by the judge presiding over the underlying action.
Morris County Superior Court Judge Thomas Weisenbeck upheld the charges without a hearing, finding Segal’s grievances meritless and unreasonable.

The judge also ordered Segal to pay another $12,128 – his share of Schofel’s parenting coordinator fees – and $5,728 for Schofel’s time spent as an attorney representing herself and her firm pro se opposing his motions. The Appellate Division affirmed.

If the court had ruled in Schofel’s favor, the bill could have amounted to more than at least $85,000.

The Supreme Court found many of Segal’s allegations against Schofel problematic. “Some of them … were not only meritless, but bordered on the frivolous; some of them were baldy inaccurate,” Hoens said.

But the court ruled that Weisenbeck and the Appellate Division erred in finding Schofel should be awarded counsel fees under R. 4:23-1(c) for defending herself and her firm when Schofel unsuccessfully sought to subpoena records from Schofel’s firm or to depose other firm members.

“The Rule is not a source of authorization for courts to award fees as a sort of generally available sanction for discovery violations, but instead is confined by its terms to very specific kinds of discovery violations,” she said. Schofel could have been awarded fees if Segal lied during depositions, gave incomplete or evasive answers or failed to respond at all.

Schofel argued that given her role as an attorney defending her actions as a parenting coordinator and her firm, she was entitled to fees because she was reducing the filing of meritless grievances, which otherwise would require outside counsel.

“We find Schofel’s arguments on this point to be unpersuasive,” Hoens said. “[To] the extent that she asserts that she was acting as a parenting coordinator who was seeking to enforce a previously awarded fee, we see no reason to treat her any more indulgently than any other pro se litigant.

“Just as others who appear in our courts seeking justice are not compensated for the value of the time they expend in that effort, so too is Schofel prohibited from being paid for the time she spent appearing on her behalf,” Hoens continued. “Nothing about her status as a parenting coordinator entitled her to be compensated for her time arguing in court for her fees or defending against Segal’s appeal,” she said.

Lastly, the court agreed with the lower courts that Segal had no right to an evidentiary hearing on his grievances.

On that point, Justice Barry Albin dissented. Specifically, he said Schofel’s 89-page response to Segal’s list of grievances was “over the top,” and he described the dispute between the two as a “sideshow.”

“This appeal is a case study in the complete breakdown of the role of the parenting coordinator,” he said.

Segal’s lawyer, Steven Resnick, says it appears the court spent a great deal of time analyzing the factors involved.

“We would have been happier if they had completed what we had asked them to do,” says Resnick, of Short Hills’ Budd Larner.

“Litigants will have to be careful when they engage in a retainer with a parenting coordinator,” he says.

The New Jersey State Bar Association participated as amicus.

“The court struck an appropriate balance in recognizing that parenting coordinators have a role in the system and should be compensated when defending grievances,” says the bar’s attorney, Bonnie Frost.

“But there is no compensation when you are defending yourself as a pro se litigant,” adds Frost, of Denville’s Einhorn Harris Ascher Barbarito & Frost.

The New Jersey chapter of the Association of Family and Conciliation Courts also participated as amicus.

“The court’s majority sort of cut the baby in half,” says its attorney, Hanan Isaacs, of Kingston. “They were clearly unhappy with Mr. Segal and how he behaved himself. They had no trouble in finding Mr. Segal acted in such a way that required the trial court’s intervention.

“But they did not like the idea of the appellate fee,” says Isaacs. “That’s a huge deal. That’s basically telling attorneys who might represent themselves that they’d be better off hiring their own attorney rather than spending time in court and not getting paid.”
Schofel was away from her office and could not be reached.