A 27-page lawsuit filed Monday in Superior Court of New Jersey, Bergen County, [Docket No. Ber-L-4381-19] the Mazie Slater law firm alleges legal malpractice by six firms involved in pelvic mesh litigation in that state.
Women who had their cases settled in the New Jersey court have “paid improper and excessive attorney’s fees and expenses from their settlements,” and in doing so their lawyers have breached their fiduciary duty while enriching themselves.
If successful, it could mean the return of conservatively $15 million to about 1,450 plaintiffs filed in New Jersey who were represented by the named firms.
The Mazie Slater law firm has successfully represented pelvic mesh clients in the New Jersey litigation.
The action names Debbie Gore of Dickinson, Texas as head of the class action and is filed before Judge Rachelle Harz of Superior Court Bergen Co, New Jersey.
The women were implanted with Ethicon (Johnson & Johnson) pelvic mesh, or pelvic mesh made by C.R. Bard, their cases were consolidated in Bergen County and they were represented in the New Jersey courts by one or more of the defendant firms named.
For example, New Jersey court rules do not allow any personal injury law firm to take more than one-third (33.3%) contingency in a personal injury case.
In the case of pelvic mesh litigation, 40% was the standard fee charged by firms for representation and out-of-state law firms left that in their retainer contracts.
Some of the named firms failed to sign retainer agreements with their New Jersey partner as is required to file a lawsuit in that state. One Texas firm failed to file to make an appearance in New Jersey even though his name was on the complaint.
A failure to follow the New Jersey rules can mean you can’t take a percentage of the case but rather can recover at most attorney’s fees on a quantum meruit basis, which could mean a small fee of about $1,000 per case.
“…”these Defendants performed very little, if any, actual legal services on behalf of Plaintiff and the Proposed Class Members, thus entitling Defendants to little or no recovery in quantum meruit.”
The firms sued are Nagel Rice (a New Jersey Firm); Derek Potts (Texas firm); Bailey Peavy Bailey Cowan Heckaman (Houston firm); Mesh Litigation Center (Potts); Steelman McAdams (Houston); Junell & Associates (Houston); Burnett Law (Houston); as well as John Does 1-100 who are the various individuals presently unknown who were employees of the law firms.
In addition to the firms, individuals with the firms are named such as Bruce Nagel, Robert Solomon, Andrew O’Connor (all Nagel Rice); Derek Potts (and his subsidiary businesses Mesh Litigation Center); and Steelman McAdams partner Annie McAdams.
Also named in the action are ABC Corps 1-100, entities who might be middleman included in the alleged wrongdoing, whose identity is as yet unnamed.
One Houston law firm (Potts) had no retainer agreement with the New Jersey firm as is required by the court’s rules and Potts had not filed hac vice (Latin: “for this turn”) as required to appear on behalf of his client in New Jersey, even though his name was on the complaint.
The NJ Court Rules of Professional Conduct require attorneys to have a written retainer agreement with their client or another law firm.
O’Connor and Nagel Rice were hired by some of the out-of-state defendant law firms to be the local New Jersey counsel and to advise on state law. The filing alleges they were negligent in their conduct.
The six firms are accused of legal malpractice for violating New Jerseys’ strict rules of the courts concerning fees and retainer agreements. Examples of legal malpractice include:
* Invalid Retainer Agreements - The defendants either has not signed agreements with local counsel in New Jersey or the women
* Attorney’s Fees of 40% - NJ limits a firm’s percentage to 33.3% and defendants failed to disclose the availability of alternative fee arrangements.
* Improper Sharing of legal fees – Without the knowledge of the plaintiff and regardless of work performed by each law firm.
* Deducting attorney’s fees - Off the top from the gross recovery while deducting expenses from the plaintiff’s portion of recovery
* Paying settlement dollars - To law firms never authorized to receive any portion of the fees or provided no legal services
* Filings or appearances - As legal counsel when they were never retained or authorized by the client to act as legal counsel
* Legal fees and or expenses - Improperly deducted from their settlement of their pelvic mesh case pursuant to a non-compliant retainer agreement or in the absence of a retainer agreement
The action gives the named defendants 30 days to produce a full accounting of all of the cases - of the settlements reached and retainer agreements and of the attorney fees deducted from settlements, including fee sharing.
The complaint asks all fees obtained by legal malpractice to be returned back to the clients.
Conservatively, if there are 1,000 women who settled their pelvic mesh cases for an average of $40,000, the amount in question would be $40 million. Subtracting the 5% common benefit fee and the 40% that remains could amount to $15 million in allegedly excess fees the women paid to their law firms.
Most settlements were in excess of $40,000. ###