A New York attorney and his firm are facing the heat of a New Jersey law establishing civil damages for the unauthorized practice of law.

Davidson, Dawson & Clark and attorney P. Gregory Hess are defendants in a civil suit filed by the estate of a New Jersey woman who retained Hess to draft her will. The suit seeks damages from Hess, who is not admitted in New Jersey, for his $675-per-hour production of a will that  was successfully contested by the deceased woman's husband.

The case is apparently the first to apply N.J.S.A. 2C:21-22a, a little-known 2012 statute that established civil penalties for the unauthorized practice of law. The law allows any person who suffers a loss as a result of unauthorized practice to bring a civil action for an amount three times the costs incurred by the victim, including fees paid to the defendant for services, as well as for attorney fees and costs of bring a suit.

The suit was brought by attorney Brooks Banker on behalf of the estate of his mother, Caryle Billings Banker. The elder Banker was living in New York in 1999 when she first engaged Hess to draft her will. In 2007, after Banker married Lewis Goodfriend and moved to New Jersey, she continued to rely on Hess to handle her estate matters. In 2015, while Banker was suffering from cancer, Hess twice visited her at Morristown Memorial Hospital to supervise signing of a revised will. Those trips were billed to the estate for $3,375 each—five hours of professional time—most of which was for driving, Banker said.

After Caryle Banker's death in March 2015, Hess prepared a probate petition. In September of that year, Goodfriend brought an action against the estate seeking a one-third share. When Hess wrote the will, he incorporated a waiver of the right of election, in which the surviving spouse waives the right to a one-third share of the estate. But the waiver was void because it failed to comply with a New Jersey law requiring full disclosure of the amount of assets in the estate to the surviving spouse, said Brooks Banker. New York, unlike New Jersey, has no such requirement, said Banker.

Goodfriend sought $265,000 but he later agreed with the estate to settle his claim for $55,000, Banker said.

"Had a New Jersey lawyer prepared my mother's will, this lawsuit would not have happened," Banker said.

The settlement paid to Goodfriend, plus $62,500 in counsel fees for defending that case, court costs for the suit against Hess and his firm, and fees for an affidavit of merit add up to $200,000 in damages, which are subject to trebling, Banker said. In an ordinary malpractice suit, counsel fees can be recovered by a prevailing plaintiff but are not subject to trebling, Banker said.

New Jersey's court rules allow out-of-state practitioners to perform occasional work in the state without being admitted if they register with the clerk of the Supreme Court, and pay various fees, but Hess did not do that, Banker said. Banker says his mother is not the only client Hess had in New Jersey. An ongoing malpractice suit in Bergen County Superior Court claims Hess made regular trips to visit another New Jersey client to provide legal services, Banker said.

"I think other people should not be in the position that I'm in, which is finding that a New York lawyer drove into New Jersey to render bad advice. My effort is to wake up New York lawyers and stop what is a rampant practice," Banker said.

Although the suit cites the unauthorized practice of law statute, it brings claims of legal malpractice. In their answer, Hess and his firm argue the complaint fails to state claims upon which relief may be granted. They argue the plaintiffs sustained no damages or that damages are not recoverable.

Hess and his firm have moved for summary judgment, claiming it was reasonable for Hess to represent Caryle Banker in New Jersey because that practice arose out of his representation of the client in a jurisdiction where he is admitted. When he was asked to represent her in 2015, she was confined to a hospital bed due to cancer, and it would have been nearly impossible for her to engage new counsel at that point, Hess and the firm said in a court filing. In addition, they argue that the estate cannot show the defendants were aware that their alleged conduct constituted the unauthorized practice of law in New Jersey.

The lawyers representing Hess and Davidson Dawson, Jeffrey Spiegel and David Tango of Lewis Brisbois Bisgaard & Smith in New York, did not respond to requests for comment. Hess could not be reached for comment. The managing partner of Davidson Dawson, James Kelly, did not return a call about the case.