Appeals Court Reinstates Ex-Client's Malpractice Case Against Archer & Greiner
But the appeals court panel found that collateral estoppel did not apply and that the Family Part judge did not adjudicate the conflict-of-interest issue,
July 01, 2020 at 04:10 PM
4 minute read
Screenshot of Archer's website.
A New Jersey appeals court has reinstated a legal malpractice case against Archer & Greiner over a suit it filed against an ex-client.
At issue is a potential conflict between Archer & Greiner's representation of Engine Distributors Inc. from 2005 to 2007 and its present representation of the wife of the company's former president and chief shareholder in divorce proceedings. Engine Distributors filed a malpractice suit against Archer & Greiner after a judge granted the law firm's motion to make that company a party in the divorce.
The case illustrates the hazards a law firm can face when it agrees to represent a party in a dispute with one of the firm's former clients.
An Atlantic County judge dismissed the malpractice suit based on Archer & Greiner's assertion that it was precluded under the doctrine of collateral estoppel. The firm cited a ruling by a Family Part judge in the divorce case, denying a motion to disqualify Archer & Greiner.
But the appeals court panel of Judges Ellen Koblitz, Mary Gibbons Whipple and Hany Mawla reversed, finding that collateral estoppel did not apply, that the Family Part judge did not adjudicate the conflict-of-interest issue, and that the judge left open the possibility that the Law Division could conclude there was a conflict of interest.
Starting in 2005, an attorney who represented EDI in an age discrimination suit, Alan Etish, joined Archer & Greiner. During the representation, Archer & Greiner obtained financial records from EDI concerning compensation, profit and losses, sales commission, expense reports and financial charts. Etish was assisted by another Archer attorney, Douglas Diaz. EDI terminated Archer & Greiner's representation in 2007.
During that representation, Archer received EDI's financial records regarding compensation, profit and loss, sales commission, expense reports and financial charts for the time period between 1999 and 2002. Archer later sued EDI for unpaid legal bills, and that matter was settled in 2010. Etish left the firm in July 2013.
In October 2013, Glenn Cummins, EDI's former president, was named in a divorce complaint filed by his wife, Lisa. Archer & Greiner attorney Stephanie Zane represents Lisa Cummins. Zane moved to join EDI as a party in the divorce case, claiming it was an alter ego of Glenn Cummins, and a judge agreed. EDI moved in October 2017 to disqualify Zane from representing Lisa Cummins, based on the firm's past representation of the company. The judge denied the motion, calling Glenn Cummins a "recalcitrant litigant" because he knew of the potential conflict for four years but took no steps to address it during that time.
Later, in May 2019, Judge Christine Smith granted Archer & Greiner's motion to dismiss the malpractice suit, concluding that the conflict issue was identical to the one addressed by the Family Part judge, and had already been litigated.
However, the appeals court said the Family Part judge did not adjudicate the conflict-of-interest issue. Indeed, the Family Part judge left open the possibility that the Law Division judge's adjudication of the issue could conclude there was a conflict of interest. For these reasons, collateral estoppel did not apply, the panel said.
"Whether Archer was disqualified on grounds of a conflict of interest was essential to address the claims in EDI's Law Division complaint because the conflict of interest was a condition precedent to finding a breach of contract and fiduciary duty. We cannot conclude the conflict of interest was waived where the issue was not actually adjudicated," the panel said.
The case was remanded to the Law Division to determine whether there is a conflict of interest and if further discovery is needed.
Allan Lee Frank and Robert Brookman, of Alan L. Frank Law Offices in Jenkintown, Pennsylvania, represented EDI at the Appellate Division. Frank said "EDI is looking forward to having its day in court and we assume that will be soon." Ellis Medoway and Edward Kelleher of Archer & Greiner represented their firm. Medoway declined to comment.
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All
Send Us Your New Partners for the NJ Law Journal's New Partners Yearbook
1 minute read
New Methods for Clients and Families to Have Their Estate and Legacy Planning Complete
5 minute readLaw Firms Mentioned
Trending Stories
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250
