(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 4, 1996 -- Decided December 16, 1996
PER CURIAM
The issue addressed in this appeal is whether a certified civil trial attorney is required to pay the
referring attorney the agreed upon referral fee if the matter handled by the certified attorney was
matrimonial in nature.
In October 1988, Ninette Hoff consulted Michael Tobin, Esq., of the law firm of Ravich, Koster,
Tobin, Oleckna & Greenstein, P.C. (Ravich), formerly Shevick, Ravich, Koster, Tobin, Oleckna and Reitman.
Hoff was seeking representation in a matrimonial action. Ravich chose not to represent Hoff but, instead,
referred her to Elliot Gourvitz, a certified civil trial attorney. When contacted by Tobin, Gourvitz, a member
of the law firm of Gourvitz & Braun, represented that a 25" referral fee would be paid to Ravich as the
money was received from the client.
On October 17, 1988, Gourvitz personally signed a letter acknowledging the referral and
memorializing the agreement between he and Ravich. The division of fees was to be governed by Rule 1:39-6(d), which provides that a certified civil or criminal trial attorney can forward a fee to a referring attorney
without regard to the services rendered to the client by the referring attorney.
As determined by the District Fee Arbitration Committee, Gourvitz earned a total fee in the Hoff
litigation of $29,271. Pursuant to the terms of the agreement, the referral fee to be paid Ravich was
$7,317.75. Gourvitz paid Ravich a total of $2,110.25, leaving a balance due of $5,207.50.
Ravich filed this lawsuit against Gourvitz to recover the $5,207.50 fee plus interest. Gourvitz filed
an answer; he did not allege an affirmative defense that the agreement was unenforceable. During a pretrial
conference, the parties stipulated to certain facts. Specifically, the parties agreed that the figures set forth in
Ravich's statement of facts were accurate and acceptable; at the time of the offer and acceptance of the
agreement, Gourvitz was a member of Gourvitz & Braun; and Gourvitz acknowledged his obligation up to
the amount that had been paid to him while a member of the Gourvitz & Braun partnership. At issue was
whether Gourvitz was personally liable for the balance due Ravich on the entire obligation or whether his
liability terminated after Gourvitz became a member of a professional association, a successor firm to
Gourvitz & Braun, which took over the representation of the client but has since dissolved and has no assets.
On May 17, 1995, the trial judge concluded that Rule 1:39-6(d) does not extend to Family Part
matters and that there was no authority in the rules to allow the payment of referral fees in matrimonial
matters. Based on its holding, the court dismissed Ravich's complaint with prejudice.
Ravich appealed to the Appellate Division, arguing that Rule 1:39-6(d) applies to the referral of a
matrimonial matter to a certified civil trial attorney and that Gourvitz is personally liable for the fees based
on the agreement he signed personally.
A majority of the Appellate Division reversed and remanded to the trial court to have a judgment entered in favor of Ravich in the amount of $5,207.50 plus interest. The majority concluded that the trial judge had interpreted Rule 1:39-6(d) too restrictively. The majority found that R. 1:39-6(d) does not prohibit
payment by a certified civil trial attorney, although solely a matrimonial practitioner, of a referral fee to the
referring attorney. According to the panel, Ravich justifiably believed that the agreement was enforceable
and would be honored by Gourvitz. Furthermore, the majority concluded that the fact that the Supreme
Court recently approved certification for matrimonial attorneys and prohibited referral fees in matrimonial
action in the future does not mean that the referral fee was prohibited when the Hoff case was litigated, nor
does it mean that Rule 1:39-6(d) should not be enforced according to its plain meaning. Further, the
majority held that Gourvitz is personally liable for the fee pursuant to the clear and unambiguous language
of the agreement that he signed.
Judge Michels dissented, finding that the trial judge properly held that Ravich was not entitled to the
referral fee in a matrimonial action. Judge Michels believed that Rule 1:39-6(d) should not be read or
construed to permit referral fees in matrimonial actions because such fees will not only increase the costs to
matrimonial litigants, but will undermine the dignity and erode public confidence in the legal profession.
HELD: Judgment of the Appellate Division is affirmed substantially for the reasons set forth in the written
opinion below. According to its plain meaning and prior to its recent amendments, Rule 1:39-6(d) did not
prohibit the forwarding of a referral fee by a certified civil trial attorney in a matrimonial action.
1. This holding has limited application because the recent amendments to Rule 1:39-6(d) expressly prohibit
the payment of referral fees in matrimonial matters. (p. 1)
2. The Court's disposition is also influenced by representations made by the parties during oral argument.
Gourvitz informed the Court that he wished to pay the referral fee provided its payment did not constitute
the unauthorized splitting of fees. Ravich informed the Court that it pursued this litigation as a matter of
principle and, if successful, would forward any payment to the client. Based on Ravich's representation,
Judge Michel's concern over the potential of increased fees to the matrimonial client has been obviated in
this case. (pp. 2-3)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN
and COLEMAN join in this per curiam opinion.
SUPREME COURT OF NEW JERSEY
A-
45 September Term 1996
RAVICH, KOSTER, TOBIN,
OLECKNA,REITMAN &
GREENSTEIN, P.C.,
Plaintiff-Respondent,
v.
ELLIOT H. GOURVITZ,
Defendant-Appellant.
Argued November 4, 1996 -- Decided December 16, 1996
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 287
N.J. Super. 533 (1996).
Elliot H. Gourvitz argued the cause pro se.
Michael N. Tobin argued the cause for
respondent (Ravich, Koster, Tobin, Oleckna,
Reitman & Greenstein, attorneys; Bruce W.
Radowitz, on the brief).
PER CURIAM
We affirm the judgment in favor of respondent substantially
for the reasons set forth in the Appellate Division opinion.
287 N.J. Super. 533 (1996). That court's holding has limited
application because, as it noted, id. at 538, the recent
amendment to Rule 1:39-6(d) expressly prohibits the payment of
referral fees in matrimonial matters.
Our disposition is also influenced by representations made
to the Court during oral argument. Appellant, appearing pro se,
informed the Court that he wished to pay the referral fee
provided that the payment did not constitute the unauthorized
splitting of fees. Respondent's counsel informed the Court that
his client was pursuing the litigation as a matter of principle
and, if successful, would remit any payment to the client.
One of the detrimental effects of fee splitting that
concerned the dissenting member of the Appellate Division was the
potential that fees to clients would be increased to cover the
cost of the referral fee. Id. at 543 (Michels, J., dissenting).
Based on the representation of respondent's counsel, that concern
has been substantially obviated in this case because the balance
of the referral fee will be remitted to the client.
Judgment affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN and COLEMAN join in this per curiam opinion.
NO. A-45 SEPTEMBER TERM 1996
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
RAVICH, KOSTER, TOBIN, OLECKNA, REITMAN &
GREENSTEIN, P.C.,
Plaintiff-Respondent,
v.
ELLIOT H. GOURVITZ,
Defendant-Appellant.
DECIDED December 16, 1996
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY