124 N.J.L.J. 1420 ( 1989)
modified, Matter of ACPE Opinion
635, 125 N.J. 181 (1991);superseded,
Notice to the Bar, 136 N.J.L.J. 1638
3 N.J.L. 852 (1994).
OPINION 635
Use of Authorization to Endorse
Forms in Personal Injury Matters
A law firm proposes to use an Authorization to Endorse form
which it has prepared. It is proposed to have the clients execute
the form when they come to the law firm's offices to execute a
release and disbursement statement, incident to the settlement of
litigation, in order to permit the attorneys to endorse for deposit
the settlement draft made payable to the client and to deposit the
proceeds in the attorneys' trust account following full disclosure
to the client. This is in response to a client's query as to
whether there is a method whereby the client may avoid the
inconvenience of returning to the law firm's office to endorse the
settlement draft or that of the time lag involved if such
instruments are sent to them by mail, and in that way expedite
disbursement of the settlement proceeds.
Our attention was directed to our Supreme Court's opinion, In
the Matter of John S. Conroy, III, 56 N.J. 279 (1970), in which the
attorney included in his retainer agreement a provision giving him
"full power...to execute any draft or check in (client's) behalf
and to make disbursements of the proceeds covering all medical and
hospital bills and to retain __% of the total received if settled,
and __ % if trial is had."
The Court decided at page 282 of its opinion as follows:
We pause at this point to make clear that we consider
employment by members of the bar of the type of retainer
and power of attorney described above to be highly
improper. The practice of insurance carriers or other
settlors in drawing settlement checks in the joint names
of the attorney and the claimants is to protect and
preserve the interests of all three parties to the
transaction. The form of retainer in question facilitates
the subversion of that purpose and is unqualifiedly
disapproved.
This inquiry presents a different factual situation than that
presented in the Conroy matter. Here, the inquirers propose to use
the power of attorney, at the request and with the consent of the
client, to permit them to endorse the client's name on the check or
draft for the amount of settlement and to deposit the check in the
attorneys' trust account to facilitate disbursement of the
proceeds. The power of attorney authorizing this procedure is to be
executed at the request and with the consent and knowledge of the
client after settlement has been consummated, and after the client
has signed the closing statement as required by R. 1:21-7 or RPC
1.5(c), as the case may be.
R. 1:21-7 relating to contingent fees requires that in matters
where the client's claim for damages is based upon the alleged
tortious conduct of another, contingent fee arrangements are
required to be in writing in the form prescribed by the
Administrative Director of the Courts and signed by both the
attorney and client. It also requires that upon the conclusion of
the matter, resulting in a recovery, the attorney shall prepare and
furnish the client with a signed closing statement, likewise in the
form prescribed by the Administrative Director of the Courts.
RPC 1.5(c) in effect extends the contingent fee rule to all
other matters with respect to which contingent fees are agreed
upon, except it does not provide for percentage limitations on the
attorney's fees.
RPC 1.5(b) provides:
When the lawyer has not regularly represented
the client, the basis or rate of the fee shall
be communicated in writing to the client
before or within a reasonable time after
commencing the representation.
In all litigated matters, the attorney who appears in the
cause for the party who institutes the action, or maintains the
third-party claim, or counterclaim or cross-claim, has a lien for
compensation upon his client's action which attaches to a verdict
or judgment in his client's favor, which lien is not affected by
any settlement between the parties before or after judgment or
final order. N.J.S.A. 2A:13-5.
It is because of the attorney's lien that checks or drafts
made to satisfy a judgment or to complete a settlement are made
jointly payable both to the clients and the attorney who handled
the matter. The payor includes the attorney's name on the draft or
check to insure that the attorney's lien is satisfied.
The requirements with respect to fee agreements and closing or
written statements showing the remittance to the client and the
method of its determination make the client aware of the amount of
the recovery which the client is entitled to receive. If after that
has been done, the client for his own convenience executes a
written authorization permitting his attorney to endorse the
settlement draft or check received in settlement of the matter or
in satisfaction of a judgment and to deposit same in the attorney's
trust account for the sole purpose of disbursing the funds in
accordance with the closing statements, we see nothing improper in
such a procedure.