SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1726-17T4

BRIAN DELANEY,

Plaintiff-Appellant,

v.

TRENT S. DICKEY and SILLS

CUMMIS & GROSS, PC,

Defendants-Respondents.

Argued January 30, 2019 – Decided August 23, 2019

Before Judges Alvarez, Nugent and Reisner.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Essex County, Docket No. C000214-17.

Glenn A. Bergenfield argued the cause for appellant. 

Richard H. Epstein argued the cause for respondent 

Trent S. Dickey, and for pro se respondent Sills 

Cummis & Gross, PC (Richard H. Epstein and Joshua 

N. Howley, of counsel and on the brief).

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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This is a legal malpractice action. Plaintiff, Brian Delaney, a former client 

of defendant Sills Cummis & Gross, PC (Sills), appeals from the order of 

dismissal entered after a judge upheld an arbitration clause in the parties' retainer 

agreement. The judge ruled that plaintiff must arbitrate not only his fee dispute 

with Sills, but also his legal malpractice claim against Sills. 

Otherwise enforceable agreements between attorneys and clients are 

unenforceable if they violate ethical rules governing the attorney-client 

relationship. The arbitration clause here incorporated by reference thirty-three 

pages of arbitration rules. Sills did not give plaintiff the rules when they 

presented him with the retainer agreement to sign, offered no explanation of the 

terms of either the retainer agreement or the extrinsic document, and watched 

plaintiff sign the retainer agreement knowing he had not read and therefore had 

not assented to the terms of the arbitration rules, some of which were material 

to the arbitration clause and the client's decision to retain Sills. Given those 

narrow circumstances, we conclude the arbitration clause violates the Rules of 

Professional Conduct (RPCs) and is unenforceable.1 Hence we reverse.

I.

 

1 Plaintiff has not argued that any other provision of the retainer is 

unenforceable. 
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A-1726-17T4

Plaintiff, a sophisticated businessman familiar with both complex legal 

matters and legal documents, became embroiled in a business dispute with his 

limited liability company partners in 2014. Two lawsuits ensued. Ten months 

after commencement of the first lawsuit, apparently dissatisfied with his 

attorneys, plaintiff retained Sills to represent him. In September 2015, he signed 

the retainer agreement that is the subject of this appeal. 

The retainer agreement is a three-page letter with an attachment entitled 

"Attachment 1 to Engagement Letter—Arbitration Provisions." Sills is 

referenced in the agreement as "we" or "the Firm." Plaintiff is referenced 

throughout the agreement as "you."2 The first paragraph summarizes the nature 

of plaintiff's dispute with his business partners, including his belief "that the 

other members may have defrauded you and/or diverted assets or taken loans for 

themselves at the expense of the Company." The terms on the remainder of page 

one through the first complete paragraph on page three delineate the agreement's 

monetary terms, the parties' rights and obligations concerning the agreement's 

termination, and plaintiff's waiver of prospective conflicts of interest on

 

2

 The retainer agreement appears to be a form agreement used for corporate 

clients as it sometimes refers to plaintiff as the "Company." 
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unrelated matters. The second paragraph on page three—and the last—is the 

arbitration clause.

The arbitration clause states:

If you have any issues or problems concerning the 

Firm's services or fees, we encourage you to notify me 

immediately so that we can attempt to promptly address 

the situation. Most issues or problems of this nature 

can be resolved quickly and amicably by the Firm and 

you. However, in the event that we and you are unable 

to come to amicable resolution with respect to any 

dispute (including, without limitation, any dispute with 

respect to the Firm's legal services and/or payment by 

you of amounts to the Firm), we and you agree that such 

dispute will be submitted to and finally determined by 

Arbitration in accordance with the provisions set forth 

on attachment 1 to this retainer letter. In such case, you 

would need to engage separate counsel to represent 

your interests and you would incur additional expense 

in connection with such arbitration. The decision of the 

Arbitrator will be final and binding and neither the Firm 

nor you will have the right to appeal such decision, 

whether in a court or in another arbitration proceeding. 

You understand that, by agreeing to arbitrate disputes 

as provided in this retainer letter, you are waiving any

and all statutory and other rights that you may have to 

a trial by jury in connection with any such dispute, 

claim, or controversy. Notwithstanding the provisions 

of this paragraph and Attachment 1, the Company [sic],

will retain the Company's [sic] absolute right to proceed 

under the Fee Arbitration Rules set forth in New Jersey 

Court Rule 1:20A, which will take precedence. 

The attachment's first paragraph states:
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Any disputes arising out of or relating to this 

engagement agreement or the Firm's engagement by 

you will be conducted pursuant to the JAMS/Endispute 

Arbitration Rules and Procedures (the "JAMS Rules") 

then in effect (see http://www.jamsadr.com), except 

that, notwithstanding those rules, the following 

provisions will apply to the arbitration . . . . 

The additional "provisions" on the attachment contain several material 

terms. First, they mandate the arbitration be conducted by one impartial 

arbitrator who can be a judge, practicing attorney, or a person who is not an

attorney, selected by mutual consent, or if the parties cannot agree, in 

accordance with the JAMS Rules. Next, they include a waiver by the parties of

any claim for punitive damages and preclude the arbitrator from awarding 

punitive damages. They also provide, among other things, that the arbitration 

will be binding and non-appealable and the proceedings confidential. Last, they

require the parties to share the arbitrator's fees and expenses, "except that the 

award rendered by the arbitrator may include the costs and expenses of 

arbitration, reasonable attorneys' fees and reasonable costs for expert and other 

witnesses." 

Plaintiff signed the retainer agreement. Plaintiff intended that Dickey 

represent him. The retainer letter bears a handwritten signature that spells 

"Trent S. Dickey" followed by the parenthetical notation "(TADL)." Dickey 
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was not present when plaintiff signed the retainer. His partner, Thomas A. Della 

Croce, attended the meeting with plaintiff. In a certification, Della Croce 

explained what occurred:

I attended the initial intake meeting with [plaintiff] on 

September 16, 2015. During that meeting, I presented 

[plaintiff] with a proposed engagement letter. I told 

[plaintiff] that he should take his time reviewing the 

contents of the engagement letter. I also told [plaintiff]

that he should ask me any questions he had about the 

contents of the engagement letter. 

I observed [plaintiff] review the engagement letter. He 

then signed it in my presence without asking me any 

questions. . . . 

For his part, plaintiff averred in a verified complaint that no one from Sills 

"went over the arbitration provision with [him]." He also averred that no one 

from Sills explained the nature of the costs associated with the arbitration, 

including that they could "easily exceed $20,000" and could be awarded against 

him. Nor did anyone from Sills point out that the arbitration fees and costs 

"greatly exceeded" filing fees for a Superior Court action, or that under the 

retainer agreement plaintiff could be held liable for Sills' costs and attorneys' 

fees, depending on how the arbitrator ruled. Plaintiff asserted that had he been 

"made aware of the inequities and costs associated with proceeding with 

arbitration, as well as the fact that he was constitutionally entitled to have a jury 
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decide issues related to malpractice, he would have never signed the initial 

retainer agreement in the form presented by [Sills]," if he signed it at all. 

Plaintiff terminated Sills after Sills had represented him for ten months. 3 

Plaintiff refused to pay Sills approximately $400,000, the balance of the fees 

Sills had charged. A month after plaintiff terminated Sills, Sills initiated 

arbitration with JAMS in accordance with the parties' retainer agreement. 

During the ensuing year, the parties delayed arbitration in an unsuccessful 

attempt to mediate their fee dispute and then engaged in discovery in 

anticipation of the fee arbitration with JAMS. 

Before the JAMS arbitration hearing commenced, plaintiff filed a 

malpractice action against Sills and Dickey. Plaintiff was represented by a new 

attorney—not the attorney representing him in the fee dispute. Plaintiff alleged

in the malpractice action that Sills and Dickey failed to conduct certain 

discovery, failed to obtain documents that would have purportedly demonstrated 

his business associates' mismanagement of the limited liability companies, and 

failed to engage forensic experts to value one of the limited liability companies 

and analyze the practices of the company's members. When Dickey pressed for 

 

3

 One of the underlying lawsuits had apparently settled, though the parties to 

this appeal reference an appeal of the purported settlement. 

 
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arbitration and JAMS refused to stay the arbitration proceedings, plaintiff, 

through his new attorney, filed a verified complaint and order to show cause. 

Initially believing the arbitration clause included only the fee dispute, plaintiff 

sought, among other relief, a declaratory judgment that the retainer agreement's 

arbitration provision was unenforceable or, alternatively, a stay of the JAMS 

arbitration of the fee dispute pending resolution of the malpractice action. 

The Chancery Division judge determined in an oral opinion that the fee 

agreement's arbitration clause was enforceable, it encompassed Sills' fee claim 

and plaintiff's malpractice claim, and both claims were subject to JAMS 

arbitration. The parties entered into consent orders dismissing the declaratory 

judgment and legal malpractice actions. This appeal followed.4 

II.

Plaintiff makes three arguments on appeal. Because his arguments require 

us to apply legal principles to undisputed facts, our review is de novo. 

 

4

 Generally, "[a]n order . . . consented to by the attorneys for each party . . . is 

not appealable." Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203, 207 (App. 

Div. 2009) (alterations in original) (quoting Winberry v. Salisbury, 5 N.J. 240, 

255 (1950). However, because the consent order was the result of a decision 

that in effect compelled arbitration, see R. 2:2-3(a)(3), and in the interest of 

judicial economy, we have decided to hear the appeal.
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Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 

(1995).

5

Plaintiff first contends the retainer agreement and the arbitration clause 

violate multiple RPCs and are therefore unenforceable. Next, he asserts all 

retainer agreements are unethical if they contain a mandatory arbitration clause 

that includes a future malpractice action. Last, he contends the Federal 

Arbitration Act (FAA), 9 U.S.C.A. §§1-16, does not preempt regulation of the 

practice of law by the New Jersey Supreme Court.

A.

Plaintiff's last argument requires little discussion. Indisputably, the New 

Jersey Supreme Court has the exclusive responsibility to regulate the conduct of 

attorneys. N.J. Const. art. VI, § II, ¶ 3 ("The Supreme Court shall make rules 

governing the administration of all courts in the State and, subject to the law, 

the practice and procedure in all such courts. The Supreme Court shall have 

jurisdiction over the admission to the practice of law and the discipline of 

persons admitted."); State v. Rush, 46 N.J. 399, 411 (1966). 

 

5

 Plaintiff's brief contains four point headings. The arguments under one point 

heading are not different from, but merely elaborate on, the other three.
10 A-1726-17T4

The Court's exclusive authority "extends to every aspect of the attorneyclient relationship, including agreements for fees." Cohen v. Radio-Elecs. 

Officers Union, Dist. 3, NMEBA, 146 N.J. 140, 155 (1996) (citing In re LiVolsi, 

85 N.J. 576, 585 (1981)). "[A]n attorney's freedom to contract with a client is 

[thus] subject to the constraints of ethical considerations and [the Court's]

supervision." Ibid. "An otherwise enforceable agreement between an attorney 

and client would be invalid if it runs afoul of ethical rules governing that 

relationship." Id. at 156.

Nothing in the FAA suggests otherwise. To the contrary, the FAA states 

expressly that arbitration agreements "shall be valid, irrevocable, and 

enforceable, save upon such grounds as exist at law or in equity for the 

revocation of any contract." 9 U.S.C.A. §2 (emphasis added). The exception is 

broad enough to include a retainer agreement that runs afoul of ethical rules 

governing the attorney-client relationship.

The question before us is not, as plaintiff suggests, whether the FAA 

preempts the regulation of the practice of law by the New Jersey Supreme Court. 

Rather, the question is whether the Sills retainer agreement runs afoul of the 

ethical rules governing the attorney-client relationship such that the retainer 

agreement—or the arbitration clause—is invalid. 
11 A-1726-17T4

B.

Thus, we turn next to plaintiff's first argument—that whether or not 

arbitration of legal malpractice claims are per se invalid, the Sills arbitration 

clause is nonetheless invalid because it violates RPC 1.4(c), 7.1(a), 1.7(a)(2), 

and 1.8(h)(1). 

We first consider RPC 1.7(a)(2), which prohibits an attorney from 

representing a client if the representation will be "materially limited . . . by a 

personal interest of the lawyer." Plaintiff contends retainer agreements 

requiring arbitration of malpractice claims create an inherent conflict that 

violates RPC 1.7(a)(2). However, his brief presents no empirical evidence to 

support his factual contentions in support of the argument, and in the absence of 

a proper record, the argument does not merit further discussion. R. 2:11-

3(e)(1)(E). 

Plaintiff next contends that by including the arbitration clause in the 

retainer agreement, Sills violated RPC 1.4(c), 1.8(h)(1), and 7.1(a). RPC 1.4(c) 

requires a lawyer to "explain a matter to the extent reasonably necessary to 

permit the client to make informed decisions regarding the representation." RPC

7.1(a) prohibits a lawyer from making "false or misleading communications 

about the lawyer, the lawyer's services, or any matter in which the lawyer has or 
12 A-1726-17T4

seeks a professional involvement." The RPC states "[a] communication is false 

or misleading if it . . . contains a material misrepresentation of fact or law, or 

omits a fact necessary to make the statement considered as a whole not 

materially misleading." Ibid. RPC 1.8(h)(1) prohibits a lawyer from making 

"an agreement prospectively limiting the lawyer's liability to a client for 

malpractice . . . unless permitted by law and the client is independently 

represented in making the agreement[.]"

Plaintiff emphasizes RPC 1.4(c)'s language that a lawyer "shall explain a 

matter to the extent reasonably necessary to permit the client to make informed 

decisions regarding the representation." He points out that Della Croce

explained nothing. He insists Sills, through Della Croce, had the duty to explain 

what parts of the arbitration agreement benefitted Sills and what parts benefitted 

him. 

According to plaintiff, Della Croce also violated RPC 7.1(a), because he 

neither attached nor explained the JAMS rules, which contained material terms 

of which plaintiff was unaware and to which plaintiff did not agree. Plaintiff 

cites as examples JAMS rules he interprets as permitting JAMS to reassign the 

matter to another office and to stop the arbitration if Sills decides not to pay its 

share of fees and expenses due the arbitrator. He notes that under the JAMS 
13 A-1726-17T4

rules, the rules of evidence are not followed and hearsay is allowed. He contends 

the JAMS rules permit the arbitrator to award legal fees to Sills. 

Last, plaintiff accuses Sills of violating RPC 1.8(h)(1) by requiring him 

to waive punitive damages.

Sills responds that plaintiff raised none of these issues before the trial 

court. Sills notes the court rules mandate disclosure in an appellate brief of 

issues not raised before the trial court. R. 2:6-2(a)(1) ("It is mandatory that for 

every point, the appellant shall include in parentheses at the end of the point 

heading the place in the record where the opinion or ruling in question is located 

or if the issue was not raised below a statement indicating that the issue was not 

raised below."). Sills argues that we should disregard plaintiff's arguments 

about the RPCs due to his failure to comply with the court rules.

Alternatively, Sills argues that it violated neither RPC 1.4(c) nor RPC

7.1(a). Sills points out that RPC 1.4(c) requires only that an attorney explain a 

matter "to the extent reasonably necessary" to permit a client to make an 

informed decision about retaining the firm. Sills contends that if a retainer 

agreement is clear on its face, no explanation is reasonably necessary for the 

client to make an informed decision, and therefore no explanation is necessary. 

Sills insists the agreement in this case is clear and unambiguous on its face.
14 A-1726-17T4

Addressing RPC 7.1(a), Sills argues it did not violate the RPC by 

incorporating by reference the JAMS rules. Specifically, Sills asserts that 

"nothing in the JAMS Rules allows for an award of attorney's fees to Sills." Sills 

contends the JAMS rules permit the arbitrator to award attorney's fees only if 

provided by the parties' agreement or applicable law. Sills insists that "neither 

the engagement letter nor applicable New Jersey law allows for fee shifting in 

this case, so [plaintiff's] argument is simply wrong." 

Sills insists that it did not violate RPC 1.8(h)(1) because this RPC only 

prohibits a lawyer from limiting the client's right to sue for malpractice, not from 

limiting damages.

We begin by exercising our discretion to consider plaintiff's arguments 

concerning the RPCs even though he did not squarely raise them before the trial 

court. That happened because plaintiff's malpractice attorney mistakenly 

interpreted the arbitration clause as referring to a dispute over fees only, not to 

a dispute over Sills' performance. Moreover, though plaintiff did not submit the 

JAMS rules to the trial court, they are referenced in the retainer agreement and 

Sills does not dispute that they formed part of that agreement.

We next turn to RPC 1.4(c). As previously noted, this RPC requires a 

lawyer to "explain a matter to the extent reasonably necessary to permit the 
15 A-1726-17T4

client to make informed decisions regarding the representation." Twelve years 

before the parties in this case signed the retainer agreement, we explained that

"[t]he potential effect of an agreement to arbitrate must be clear to the client to 

be binding upon him." Kamaratos v. Palias, 360 N.J. Super. 76, 87 (App. Div. 

2003) (citing Haynes v. Kuder, 591 A.2d 1286 (D.C. App. 1991)). We added, 

"[i]t is not sufficient, moreover, that the client have experience in business to 

permit a conclusion that the client made an informed decision to agree to proceed 

with arbitration in all instances." Ibid. 

In addition, nearly six years before the parties in this case signed the 

retainer agreement, we explained: "Full and complete disclosure of all charges 

which may be imposed upon the client is also necessitated by RPC 1.4(c)." 

Alpert, Goldberg, Butlter, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 

531 (App. Div. 2009). We asked, rhetorically, "[i]f the client does not know 

what charges and costs beyond the hourly rate he may be exposed to, how can 

the client be expected to make an informed decision regarding representation." 

Ibid. Consequently, we noted: 

Merely directing the client to ask for another document 

that is not directly presented and explained to the client 

but will bind him or her does not fulfill the lawyer's 

obligation pursuant to R.P.C. 1.4(c). This obligation to 

thoroughly explain all the terms of retention is 
16 A-1726-17T4

particularly appropriate, given that the lawyer has a 

unique and fiduciary relationship with the client.

[Ibid. Cf., F.G. v. MacDonell, 150 N.J. 550, 563-64 

(1997)]. 

The extent of the required disclosures will depend upon the case. 

Certainly, clients must be informed they are "giving up [their] right[s] to bring 

[their] claims in court or have a jury resolve the dispute." Atalese v. U.S. Legal 

Servs. Grp., L.P., 219 N.J. 430, 447 (2014). In addition, clients should be 

informed to some extent of the basis of the costs and charges they will incur by 

waiving their right to access the courts and agreeing to arbitration. Quinn, 410 

N.J. Super. at 531.

Here, the retainer agreement included an explanation that by agreeing to

arbitration the client was waiving his rights to seek relief in court. The 

attachment to the retainer agreement also informed the client he would be 

required to pay an equal share of all costs and expenses related to compensation 

of the arbitrator, the site and any administrative fees. These statements, 

however, provided the client with no information by which he could make any 

reasonable estimate of what the arbitration's cost would be. The JAMS rules, 

on the other hand, specify the administrative fee and provide a toll-free number 

a client can call for information about "individual neutrals' rates." But Sills did 
17 A-1726-17T4

not include the rules with the retainer agreement. Consequently, the client had 

no way of gauging whether the arbitrator's fee would be closer to $10,000, 

$50,000 or $100,000. 

Of equal concern, some of the JAMS rules implicate substantive, rather 

than merely procedural issues. For example, Rule 17(b) states that "[e]ach party 

may take one deposition of an opposing Party or of one individual under the 

control of the opposing Party." Thereafter, "[t]he necessity of additional 

depositions shall be determined by the Arbitrator based upon the reasonable 

need for the requested information, the availability of other discovery options 

and the burdensomeness of the request on the opposing Parties and the 

witnesses." That rule and the arbitrator's decision could affect the ability of a 

party to develop proofs in a complex case and could affect discovery and trial 

strategy. Additionally, because the arbitration clause did not specifically refer 

to "malpractice" or "professional negligence," a client reviewing the JAMS rules

might not appreciate the significance of the rules' limitations on discovery. 

We are not suggesting an attorney must explain the JAMS rules to a 

prospective client. But the thirty-three pages of JAMS rules should at least be 

presented to clients with the retainer agreement. The mere number of rules, as 

well as their complexity to a lay person, could cause the potential client to ask 
18 A-1726-17T4

questions about the rules or seek advice elsewhere before signing a retainer 

agreement. 

We also note with interest the parties' dispute about whether the JAMS 

rules are against public policy because they permit fee shifting, that is, the award

of attorneys' fees to the prevailing party. Plaintiff says they do. Sills says they 

do not. Sills points out that JAMS Rule 24(g) permits an arbitrator to allocate 

attorneys' fees only if provided by the parties' agreement or applicable law. Sills 

insists that "neither the engagement letter nor applicable New Jersey law allows 

for fee shifting in this case, so [plaintiff's] argument is simply wrong." Sills' 

position appears to be inconsistent with the provision in its engagement letter's 

attachment:

The Firm and You will pay an equal share of all costs 

and expenses related to compensation of the arbitrator, 

the site and any administrative fees, except that the 

award rendered by the arbitrator may include the costs 

and expenses of arbitration, reasonable attorneys' fees 

and reasonable costs for expert and other witnesses. 

[(Emphasis added).]

It is difficult to reconcile Sills' argument with the emphasized language in the 

retainer agreement's attachment, a fact that perhaps suggests the retainer 

agreement is not as clear in some respects, as the trial court determined. 
19 A-1726-17T4

As previously noted, the Supreme Court has held that "[a]n otherwise 

enforceable agreement between an attorney and client would be invalid if it runs 

afoul of ethical rules governing that relationship." Cohen, 146 N.J. at 156. We 

conclude that because Sills gave plaintiff no explanation about the retainer 

agreement's or arbitration provision's terms, did not provide plaintiff with the 

JAMS rules, provided no explanation about the JAMS rules, and watched 

plaintiff sign the agreement knowing he had not assented to the JAMS rules, this 

otherwise enforceable agreement runs afoul of two of the ethical rules governing

the attorney-client relationship. Accordingly, we find the agreement invalid.

Although not determinative, we also find the agreement violates RPC

1.8(h)(1), which prohibits an attorney from making an agreement with a client 

that prospectively limits the attorney's liability to the client for malpractice. If 

accepted, Sills' argument—that an attorney cannot prospectively prevent a client 

from filing a malpractice action, but can limit the amount of damages the client 

can recover in such an action—would permit an attorney to restrict a client's 

recovery in a lawsuit to nominal damages. Moreover, we find some merit in 

plaintiff's claim that Sills' mutual waiver of its right to recover punitive damages 

from a client is largely illusory. Nonetheless, plaintiff's legal malpractice 
20 A-1726-17T4

complaint did not include a claim for punitive damages. We thus repeat that this 

RPC violation is not dispositive of whether the arbitration clause is valid.

In light of our holding, we need not address plaintiff's broader argument, 

that the RPCs prohibit all agreements to arbitrate malpractice claims.

III.

Our holding is narrow. We do not hold that all retainer agreement clauses that 

mandate arbitration of legal malpractice claims are per se invalid. Nor do we hold 

that the "reasonable explanation" required of an attorney by RPC 1.4(c) cannot be 

contained in the written retainer agreement. Rather, we hold that when an attorney 

incorporates by reference in a retainer agreement a document that contains material 

terms concerning mandatory arbitration of legal malpractice claims, does not 

provide the incorporated document to the client, gives the client no explanation 

about material terms contained in the document, and asks the client to sign the 

retainer agreement without reading the incorporated documents, the agreement runs 

afoul of the RPCs and is invalid. We have considered the parties' remaining 

arguments and found them to be without sufficient merit to warrant further 

discussion. R. 2:11-3(e)(1)(E). 

We thus vacate the trial court's order upholding the arbitration clause and 

remand the matter for further proceedings consistent with this opinion. 
21 A-1726-17T4

Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.