New Jersey Appellate Division rules prospective client’s correspondence with law office secretary who did not mention the matter to the attorney failed to establish an attorney-client relationship for purposes of a legal malpractice suit. Shapiro v. Rinaldi, Docket No. A-1753-14T4 (App. Div.,March 18, 2016)

After falling in a pot hole on a city street and injuring her shoulder, Barbara Shapiro called the office of Mark Rinaldi, Esq., a solo practitioner who had represented Shapiro’s companion the year before in a landlord-tenant matter.

When Shapiro called Rinaldi’s office, she spoke to his secretary, Nancy. Shapiro asked whether Rinaldi handled personal injury cases involving slip and falls in the street, and Nancy said, “absolutely.” Nancy asked Shapiro to email photos of the area where she fell; when Nancy received the emailed photos, she replied that she would print them and give them to Rinaldi, and that Rinaldi would “give [Shapiro] a call to discuss it.”

Shapiro heard nothing further from Rinaldi’s office, and claimed that she thought the firm was investigating the circumstances. After taking no further action for three months, Shapiro contacted another attorney, who advised her, for the first time, of the time limit for filing a notice of claim with the city. The time limit had expired, and a motion for permission to file a late notice of claim (filed on behalf of Shapiro by a new attorney) was denied. Shapiro then sued Rinaldi for legal malpractice.

Nancy was deposed. She testified that, after the email exchange with Shapiro, she had neglected to print the photos or advise Rinaldi of Shapiro’s claim. She testified that office procedure was for her to print such photos, type up the information, and give it to Rinaldi; however, Nancy had been working on something else at the time, and did not follow the office procedure.

Rinaldi testified that he never knew about Shapiro’s accident until he received notice of the legal malpractice action. He testified regarding the office procedure he had established for new personal injury cases, in which Nancy would take notes and provide him with a memo.

Following completion of discovery, Rinaldi filed a motion for summary judgment, which was granted. Shapiro appealed.

The Appellate Division noted that an attorney-client relationship arises when:

[A] person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either

  • the lawyer manifests to the person consent to do so; or
  • the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.

The lawyer-client relationship is typically established by an express agreement, but can also be inferred from the conduct of the parties, if there is (a) reliance by the client, coupled with (b) the attorney’s awareness and “tacit acceptance” of it. The appellate court concluded that both of these two elements were lacking. First, any reliance by Shapiro was not reasonable: Nancy had never stated that Rinaldi would take the case, and when plaintiff never heard back from the firm, she should have realized that Rinaldi was not pursuing her claim. Second, there was no awareness by Rinaldi, because Nancy had neglected to inform him of the case.

The Appellate Division also discussed RPC 5.3(b) of the Rules of Professional Conduct, which imposes a duty on lawyers with respect to their “non-lawyer assistants.” Shapiro claimed that Rinaldi was obligated to make reasonable efforts to ensure that Nancy’s conduct met the standards of the Rules of Professional Conduct, and that Nancy should have been trained to alert prospective clients of rights such as the impending expiration of a statute of limitations.

The Appellate Division rejected Shapiro’s contention because,

[Shapiro’s contention] ignores the fact that a lawyer may not employ a non-lawyer assistant to advise clients with respect to their legal rights…. Informing a potential client of deadlines to file a claim would clearly constitute “advising clients with respect to their legal rights.”

Instead, the Appellate Division agreed with the trial court’s finding that Rinaldi had made reasonable efforts to establish procedures to ensure that Nancy complied with Rinaldi’s professional obligations.

The Appellate Division concluded that there was no express or implied attorney-client relationship, so there was no basis for holding Rinaldi liable for malpractice. It also found that Shapiro and Rinaldi’s prior dealings in the unrelated landlord-tenant matter did not commit Rinaldi to represent Shapiro in the personal injury matter.

A copy of Shapiro v. Rinaldi can be found here – Shapiro v. Rinaldi

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