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A Philadelphia law professor is resisting efforts to collect a $156,436 judgment in New Jersey for receiving an improper referral fee and the unauthorized practice of law in a medical malpractice case.

Frank McClellan, professor emeritus at Temple University's Beasley School of Law, was ordered by Middlesex County Superior Court Judge Thomas McCloskey to pay that amount to Cindy Johnson, who consulted him about bringing a medical malpractice claim on behalf of her late husband. McClellan was also ordered on Jan. 3  to pay Johnson's legal bills for collection of the improper referral fees, an amount to be determined later. In addition, a separate legal malpractice claim brought by Johnson against McClellan is pending.

McClellan could be found in contempt of court after refusing to cooperate in a deposition tied to an effort to collect on the judgment. Johnson's lawyer sought to depose McClellan concerning his assets. The deposition notice instructed McClellan to bring statements for bank accounts, investments and other cash assets, as well as titles to any real property and automobiles.

But McClellan's counsel said his client would not attend the deposition because he intends to appeal. In response, Johnson's lawyer moved to find McClellan in contempt of court on Jan. 15.

McClellan received a $52,145 referral fee from Aaron Freiwald, a Philadelphia lawyer who represented Johnson in the medical malpractice case. But accepting that fee was improper because New Jersey ethics rules only allow payment of referral fees by a certified trial attorney, McCloskey ruled. Freiwald has not attained that status and was himself practicing pro hac vice in New Jersey. What's more, McCloskey found McClellan, who is not admitted in New Jersey, engaged in the unauthorized practice of law with his involvement in the Johnson case. On that basis, McCloskey found, the amount of the improper referral fee was subject to trebling.

McClellan is a founder of Temple's Center for Health Law Policy and Practice, and has taught courses on bioethics, medical malpractice, law and medicine, and torts. McClellan received his law degree from Duquesne University School of Law in 1970.

McClellan had an active role in Johnson's case, drafting documents, retaining experts and giving opinions about the law to Johnson and other attorneys working for her, McCloskey said. Fee-splitting is permitted under court rules, if the client is informed of the arrangement, and the split is proportionate to the amount of work performed by each attorney, which was not the case here, McCloskey said. But both McClellan and Freiwald characterized the payment as a referral fee, and not a split fee.

McClellan's referral fee was one-third of the $156,436 that Freiwald received after obtaining a $500,000 settlement in a medical malpractice suit on behalf of Johnson. When Johnson sought advice from McClellan about filing the suit, he referred her to Freiwald.

Johnson later determined that certain culpable parties were left out of the medical malpractice suit. She brought a malpractice suit against McClellan and Freiwald and others in Essex County. Freiwald assigned to Johnson the right to the return of the referral fee, according to a court document.

"Clearly, as established by the motion record, Mr. McClellan was interloping in the underlying medical malpractice matter and, as a consequence, was improperly compensated by Freiwald for doing so—without disclosure of the arrangement to the Plaintiff and her written consent to the same—to the detriment and loss to the Plaintiff's Estate," McCloskey said when he entered the judgment against McClellan.

Johnson is represented by William Gold of Bendit Weinstock in West Orange. Johnson is hoping her recovery from McClellan will help make up for a less-than-sufficient recovery in the medical malpractice suit, Gold said.

McClellan "doesn't understand the laws of New Jersey with respect to a medical malpractice case, doesn't understand he's practicing law in New Jersey and doesn't understand he was illegally, criminally practicing law in New Jersey, and doesn't understand he doesn't have the right to a fee," Gold said.

One attorney representing McClellan, John Slimm of Marshall, Dennehey, Warner, Coleman & Goggin in Mount Laurel, declined to comment on the litigation. Another attorney, Christopher Carey of McElroy, Deutsch, Mulvaney & Carpenter in Newark, said he is not authorized to discuss the litigation.