NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4014-17T4

ESTATE OF RENEE M. 

BARBUTO,

Plaintiff-Appellant,

v.

BOYD & BOYD, also known

as BOYD & BOYD, PC, and 

WILLIAM L. BOYD, ESQUIRE,

Defendants,

and 

BARBARA J. BOYD, ESQUIRE,

Defendant-Respondent.

_______________________________

Submitted December 16, 2019 – Decided 

Before Judges Messano, Ostrer and Vernoia. 

On appeal from the Superior Court of New Jersey, 

Law Division, Mercer County, Docket No. L-0171-16.

Indik, McNamara & Dallarda, PC, attorneys for 

appellant (Martin K. Indik and Carl J. Dallarda, on the 

briefs).

Maselli Warren, PC, attorneys for respondent (Shawn 

D. Edwards, of counsel and on the brief).

APPROVED FOR PUBLICATION

February 27, 2020

APPELLATE DIVISION

February 27, 2020
A-4014-17T4 2

The opinion of the court was delivered by

VERNOIA, J.A.D.

After presentation of the evidence, the trial court granted defendant 

Barbara Boyd's motion for a directed verdict. The court dismissed the claim of

plaintiff, the Estate of Renee Barbuto, that defendant is liable for a judgment 

rendered on a malpractice cause of action against a law firm, Boyd & Boyd, 

and attorney William L. Boyd.

1

 Based on our review of the record, we find the 

court correctly determined the evidence did not permit a rational juror to 

conclude plaintiff is liable for the judgment, and affirm.

I.

Plaintiff's complaint alleged a common law legal malpractice cause of 

action and a claim under N.J.S.A. 2A:13-4 against defendants.

2

 See N.J.S.A. 

2A:13-4 (stating an attorney "shall be liable for all damages sustained by [a] 

client" resulting from the attorney's "neglect or mismanage[ment] [of] any 

cause in which [the attorney] is employed"). More particularly, the complaint 

averred that "[i]n or around September 2010," the decedent, Renee Barbuto 

1

 For purposes of clarity, we refer to Barbara Boyd as "defendant"; her 

husband William as "W. Boyd"; and the two of them and the law firm 

collectively as "defendants."

2

 We refer to plaintiff's amended complaint, which was the operable complaint 

at trial.
A-4014-17T4 3

(Barbuto), retained defendants to represent her in an Internal Revenue Service 

matter, and they "committed malpractice in the course of representing" her. 

Plaintiff further alleged defendant and W. Boyd were partners in Boyd & 

Boyd, and they were therefore "jointly and severally liable for debts incurred 

as a result of [the] actionable conduct of either partner . . . pursuant to N.J.S.A. 

42:1A-17 and N.J.S.A. 42:1A-18(a)."3 A responsive pleading to the complaint 

was not timely filed, and the court entered a default judgment for $127,277.05 

against defendants. 

W. Boyd filed a motion on defendants' behalf to vacate the default 

judgment and for leave to file an answer to the complaint out of time. Plaintiff 

opposed the motion, and defendants retained new counsel to represent them. 

The parties subsequently entered into a consent order vacating the default 

judgment against defendant and allowing her to file an answer. The default 

judgment against W. Boyd and Boyd & Boyd was not vacated. Defendant 

subsequently filed an answer denying she was a partner in Boyd & Boyd and 

3

 The complaint also alleged defendant and W. Boyd sometimes practiced law 

under the firm name, Boyd & Boyd, PC, but they were not entitled to the 

statutory protections for shareholders of a professional corporation under the 

New Jersey Professional Services Corporation Act, N.J.S.A. 14A:17-1 to -18,

because the firm did not satisfy the statutory requirements for a professional 

corporation. We do not address the allegation because defendant does not 

claim she is entitled to the protections of the Act, and the court's decision 

granting defendant's motion for a directed verdict is not based on application 

of the Act.
A-4014-17T4 4

disclaiming liability for the amount due under the malpractice default 

judgment against W. Boyd and Boyd & Boyd. 

After discovery and defendant's unsuccessful summary judgment 

motion, the matter proceeded to trial on the issue of whether defendant was 

liable, as a partner in Boyd & Boyd, for the malpractice default judgment. At 

trial, plaintiff conceded it lacked evidence establishing defendant was an actual 

partner in Boyd & Boyd when the malpractice occurred. Instead, plaintiff 

asserted defendant was liable as a partner by estoppel under N.J.S.A. 42:1A-20 

and as otherwise provided under Rule of Professional Conduct (RPC) 7.5(d).

The evidence at trial established defendant and W. Boyd are married. 

Defendant graduated from law school in 1986 and worked for a law firm as an 

associate until approximately 1991 or 1992. She left the law firm after her 

second child was born to care for her children. After a short period, she joined 

W. Boyd's firm, "William L. Boyd, Attorney at Law." She thereafter worked 

part-time at the firm, three days each week. She never worked full-time at the 

firm.4

4

 Defendant testified she worked full-time only during her participation in a 

jury trial that she handled with W. Boyd.
A-4014-17T4 5

During her employment at the firm, its name changed to Boyd & Boyd, 

and later to Boyd & Boyd, PC.

5

 Defendant explained the purpose of the name 

change was to take advantage of the good will she generated from her work at 

her previous employer. She testified that, although she was associated with 

the firm after its name changed to Boyd & Boyd, PC, "it was always a 

professional corporation."

Defendant and W. Boyd did not have a partnership agreement and never 

intended to be in a partnership. Defendant did not receive any stock 

certificates, did not share in the firm's profits, and was not involved in the 

firm's management. 

Defendant said she left the firm at "the end of the 90's to early 2000's" to 

start an event planning business. She removed her business cards and took her 

diplomas off the firm's walls, and her full name was removed from the firm 

letterhead. She had no intention of ever practicing law again, and she never 

again met with any of the firm's clients or performed legal services on the 

firm's behalf. Defendant stopped taking the continuing legal education courses 

required to maintain her New Jersey law license, which lapsed in 2004. The 

5

 It appears the professional corporation, Boyd & Boyd, PC, was formed in 

1997. Defendant testified that after she joined W. Boyd's firm, but prior to the 

formation of the professional corporation, the name of the firm "probably" had 

been Boyd & Boyd.
A-4014-17T4 6

New Jersey Lawyer's Fund for Client Protection's records showed defendant 

claimed a "retired exemption for 2004 through . . . July 29, 2016."6 During the 

period of defendant's retirement from the practice of law, she "did not practice 

law in any capacity[,] anywhere." 

Defendant was aware that, following her departure from the firm and 

retirement from the practice of law, the firm's name continued to include both 

her and her husband's last names.7 She understood it was appropriate that her 

last name remain included in the firm's name because she retired from the firm 

and the practice of law. 

Defendant never met or spoke with the decedent, Barbuto, and never 

performed any legal services on her behalf. W. Boyd provided legal services 

to the decedent from 2010 through September 2015. In providing those 

services, W. Boyd variously referred to the firm as "Boyd & Boyd" and "Boyd 

& Boyd, P.C." The evidence shows Boyd & Boyd, PC's status as a 

professional corporation was revoked by the State in 2005. 

Following the parties' presentation of evidence, plaintiff moved, and 

defendant cross-moved, for judgment under Rule 4:40-1. The court denied the 

6

 Defendant's license to practice law in New Jersey was reinstated in 2017.

7

 Defendant testified during her deposition that she was unaware whether 

Boyd continued to practice law under the name "Boyd & Boyd" or "Boyd & 

Boyd, P.C."
A-4014-17T4 7

motions, finding "there are issues of fact that . . . need to be decided by the 

jury." 

During the subsequent charge conference, the court determined N.J.S.A. 

42:1A-20, which defines the standard for a purported partner's liability, 

governed plaintiff's claim that defendant was liable for the malpractice 

judgment against W. Boyd and the law firm. Defendant moved for 

reconsideration of the court's denial of her motion for judgment under Rule 

4:40-1, arguing plaintiff failed to present any evidence establishing an 

essential element of liability under the statute — that Barbuto relied on a 

representation defendant was a partner in Boyd & Boyd in retaining the firm to 

provide the services that gave rise to the malpractice judgment. Plaintiff 

acknowledged Barbuto's death rendered it unable to establish she relied on any 

representation defendant was a partner. The court granted defendant's motion 

for reconsideration and entered a judgment of dismissal in her favor on 

plaintiff's claim under N.J.S.A. 42:1A-20. 

Plaintiff conceded it did not present any "proofs of . . . [an] actual 

[p]artnership" between defendant and W. Boyd, but argued it presented "proofs 

of name liability under [RPC] 7.5(d)." Rejecting plaintiff's argument, the court 

granted defendant judgment on that claim as well and entered a final judgment 

dismissing the complaint with prejudice. This appeal followed.
A-4014-17T4 8

II.

We review de novo an order granting a motion for judgment under Rule

4:40-1. Lechler v. 303 Sunset Ave. Condo. Ass'n, 452 N.J. Super. 574, 582 

(App. Div. 2017). We accept as true all evidence supporting the position of 

the party opposing the motion and accord that party the benefit of all 

inferences that can reasonably and legitimately be deduced therefrom. Smith 

v. Millville Rescue Squad, 225 N.J. 373, 379-80 (2016) (citing Verdicchio v. 

Ricca, 179 N.J. 1, 30 (2004)). If, in doing so, reasonable minds could differ, 

the motion must be denied. Ibid. A motion for judgment of dismissal under 

Rule 4:40-1 "should only 'be granted where no rational juror could conclude 

that the plaintiff marshaled sufficient evidence to satisfy each prima facie 

element of a cause of action.'" Ibid. (quoting Godfrey v. Princeton 

Theological Seminary, 196 N.J. 178, 197 (2008)).

Plaintiff contends that the court erred by granting judgment dismissing 

plaintiff's claims that: (1) RPC 7.5(d) imposed liability on defendant for Boyd 

& Boyd's malpractice, and (2) defendant was otherwise liable for the firm's 

malpractice under what it characterizes as the partnership-by-estoppel statute, 

N.J.S.A. 42:1A-20. Plaintiff asserts that defendant's last name was included in 

the firm's name as a marketing tool, and that, after defendant left the firm, she 

and W. Boyd decided to continue the firm as Boyd & Boyd "for the good will 
A-4014-17T4 9

it would generate." Plaintiff also argues the firm's advertising indicated 

defendant continued to practice law with the firm after she otherwise retired 

and her license to practice law lapsed.

"[G]enerally, . . . partners are jointly and severally liable for all 

obligations of the partnership." Whitfield v. Bonanno Real Estate Grp., 419 

N.J. Super. 547, 555 (App. Div. 2011); see also Falzarano v. Leo, 269 N.J. 

Super. 315, 320 (App. Div. 1993) ("It is fundamental that every member of a 

partnership is jointly and severally liable for torts committed by other 

members of the partnership acting within the scope of the firm business . . . ."); 

N.J.S.A. 42:1A-18 (providing, subject to certain exceptions, "all partners are 

liable jointly and severally for all obligations of the partnership unless 

otherwise agreed by the claimant or provided by law"). Here, plaintiff 

conceded at trial it failed to present evidence establishing defendant was 

actually a partner in Boyd & Boyd when the legal malpractice occurred. 

Plaintiff's claim is founded on the premise that defendant is liable under 

N.J.S.A. 42:1A-20 as W. Boyd's purported partner in the firm during its 

representation of Barbuto. However, the statute requires proof of reliance on 

representations as to the purported partnership relationship. In pertinent part, 

the statute provides:

a. If a person, by words or conduct, purports to be a 

partner, or consents to being represented by another as 
A-4014-17T4 10

a partner, in a partnership or with one or more persons 

not partners, the purported partner is liable to a person 

to whom the representation is made, if that person, 

relying on the representation, enters into a transaction 

with the actual or purported partnership. If the 

representation, either by the purported partner or by a 

person with the purported partner's consent, is made in 

a public manner, the purported partner is liable to a 

person who relies upon the purported partnership even 

if the purported partner is not aware of being held out 

as a partner to the claimant. If partnership liability 

results, the purported partner is liable with respect to 

that liability as if the purported partner were a partner. 

If no partnership liability results, the purported partner 

is liable with respect to that liability jointly and 

severally with any other person consenting to the 

representation.

b. If a person is thus represented to be a partner in an 

existing partnership, or with one or more persons not 

partners, the purported partner is an agent of persons 

consenting to the representation to bind them to the 

same extent and in the same manner as if the 

purported partner were a partner, with respect to 

persons who enter into transactions in reliance upon 

the representation. If all of the partners of the existing 

partnership consent to the representation, a partnership 

act or obligation results. If fewer than all of the 

partners of the existing partnership consent to the 

representation, the person acting and the partners 

consenting to the representation are jointly and 

severally liable.

[N.J.S.A. 42:1A-20(a), (b) (emphasis added).]
A-4014-17T4 11

N.J.S.A. 42:1A-208 was enacted as part of the Uniform Partnership Act 

(UPA) (1996), N.J.S.A. 42:1A-1 to -56, and it replaced N.J.S.A. 42:1-16, 

which was repealed.9 In pertinent part, N.J.S.A. 42:1-16 provided that a 

person who represented, or consented to a representation, "in a public manner" 

that he or she is a partner, was liable as a partner "to any such person to whom 

such representation has been made, who has, on the faith of such 

representation, given credit to the actual or apparent partnership," N.J.S.A. 

42:1-16, and created what has been characterized as a partnership by estoppel, 

Falzarano, 269 N.J. Super. at 321. To establish liability under the statute, a 

plaintiff was required to demonstrate reliance on the partnership 

representation. See Nat'l Premium Budget Plan Corp. v. Nat'l Fire Ins. Co. of 

Hartford, 106 N.J. Super. 238, 247 (App. Div. 1969) (finding "that a proper 

construction of" N.J.S.A. 42:1-16 requires a showing of reliance upon the 

representation of the partnership to impose liability upon a putative partner); 

Reisen Lumber & Millwork Co. v. Simonelli, 98 N.J. Super. 335, 340-41 (Law 

Div. 1967) (finding same). 

8

 L. 2000, c. 161, §60, effective Dec. 8, 2000.

9

 N.J.S.A. 42:1-16 was repealed effective December 8, 2000. L. 2000, c. 161, 

§ 59, effective Dec. 8, 2000. 
A-4014-17T4 12

The repeal of N.J.S.A. 42:1-6, and adoption of the UPA, did not change 

the requirement that liability for a partnership by estoppel may only be 

imposed where the plaintiff demonstrates reasonable reliance on the 

partnership representation. The plain language of N.J.S.A. 42:1A-20(a) makes 

a purported partner liable only to an individual who "relies upon the purported 

partnership" or "upon the representation" of the purported partnership in 

entering into the transaction with the partnership. See DiProspero v. Penn, 183 

N.J. 477, 492 (2005) (explaining we should "ascribe to the statutory words 

their ordinary meaning"). Moreover, § 308(a) of the UPA, which the 

Legislature adopted as N.J.S.A. 42:1A-20(a), "continued the basic principles of 

partnership by estoppel" by requiring a showing the defendant was presented 

to be a partner and the plaintiff reasonably relied on the representation the 

defendant was a partner. Unif. P'ship Act Ann. (last Amended 2013) § 308,

cmt. (West 2018); see, e.g., Equitas Disability Advocates, LLC v. Bryant, 134 

F. Supp. 3d 209, 215-16 (D.D.C. 2015). 

We have scoured the record and agree with the trial court's finding that 

plaintiff failed to present any evidence establishing defendant's liability as a 

purported partner under N.J.S.A. 42:1A-20. Plaintiff conceded at trial there is 

no evidence Barbuto relied on a representation defendant was a partner in 

Boyd & Boyd when Barbuto employed the law firm to provide legal services. 
A-4014-17T4 13

Lacking any evidence Barbuto relied on an alleged representation defendant 

was a partner, the court correctly entered judgment in defendant's favor on 

plaintiff's N.J.S.A. 42:1A-20 claim defendant is liable as a purported partner in 

Boyd & Boyd.

Plaintiff also argues defendant is liable for the malpractice judgment 

under RPC 7.5(d), which provides: 

Lawyers may state or imply that they practice in a 

partnership only if the persons designated in the firm 

name and the principal members of the firm share in 

the responsibility and liability for the firm's 

performance of legal services.

[RPC 7.5(d).]

Plaintiff contends the inclusion of defendant's last name in the law firm's name 

after defendant left the firm and retired requires a finding of liability under 

RPC 7.5(d).

Plaintiff relies on Falzarano, where we considered a trial court's award 

of counsel fees under N.J.S.A. 2A:15-59.1 in a legal malpractice case against a 

law firm partnership and each of its partners. 269 N.J. Super. at 318-22. One 

of the firm's putative partners sought and obtained an attorney's fee award 

under N.J.S.A. 2A:15-59.1, after the malpractice case settled. Id. at 317-18. 

The putative partner argued that the malpractice claim, as asserted against him, 

was frivolous. Id. at 317. The trial court awarded the fees "without making a 
A-4014-17T4 14

specific finding that plaintiff's action against [the putative partner] was 

frivolous." Id. at 318. 

We reversed the fee award, finding the malpractice claim was not 

frivolous because the putative partner "held himself out to the public as a 

partner, and, thus, . . . could have been held liable for any partnership liability" 

under the then-extant partnership-by-estoppel provision of the "Uniform 

Partnership Law," N.J.S.A. 42:1-16. Id. at 320-21. In finding the claim was 

not frivolous, we noted that "apart from the creation of a partnership by 

estoppel under N.J.S.A. 42:1-16," the putative partner's last name was included 

in the firm's name, and that under RPC 7.5(d), "he shared in the responsibility 

and liability for the firm's performance of legal services." Id. at 321.

Plaintiff's reliance on our decision in Falzarano is misplaced. In 

Falzarano, we considered the putative partner's potential liability under 

N.J.S.A. 42:1-16 only for the purpose of determining whether the plaintiff's

malpractice claim against the putative partner was frivolous. Id. at 318-22.

We were not required to decide, and did not consider, whether the putative 

partner was actually liable as a partner for the malpractice claim under the 

partnership-by-estoppel statutory standard. 

Here, by contrast, we are required to determine whether plaintiff 

presented sufficient evidence at trial to establish defendant is liable as a 
A-4014-17T4 15

purported partner for the law firm's malpractice. As noted, under N.J.S.A. 

42:1A-20, defendant is not liable as a purported partner unless plaintiff 

established Barbuto relied on a representation defendant was a partner while 

she employed the law firm to provide legal services. Plaintiff concedes it

presented no evidence of such reliance. 

Plaintiff's reliance on Falzarano is also misplaced because, contrary to 

the suggestion contained in the decision, it is well-established that the RPCs

are not a source of civil causes of action. See Meisels v. Fox Rothschild LLP, 

__ N.J. __, __ (Jan. 9, 2020) (slip op. at 20) (noting "the RPCs guide 

attorneys . . . with regard to proper conduct and can be relevant to the standard 

of care in civil cases against attorneys" but "standing alone, a violation of the 

RPCs does not create a cause of action for damages"); Green v. Morgan 

Props., 215 N.J. 431, 458 (2013) ("First, we reject entirely plaintiffs' 

suggestion that they can maintain a cause of action based on an assertion that 

the attorney engaged in fee-sharing. As we have . . . held, the assertion that an 

attorney has violated one of our ethical rules does not give rise to a cause of 

action . . . ."); Camden Iron & Metal, Inc. v. Klehr, Harrison, Harvey, 

Branzberg & Ellers, LLP, 384 N.J. Super. 172, 178 (App. Div. 2006) ("[T]he 

[RPCs] do not provide an independent basis for a cause of action."); Davin, 

LLC v. Daham, 329 N.J. Super. 54, 74 n.3 (App. Div. 2000) ("While the 
A-4014-17T4 16

[RPCs] may provide guidance to the court in determining whether a duty 

exists, they do not provide an independent cause of action."). Thus, RPC 

7.5(d) does not support a cause of action for liability against defendant for the 

malpractice judgment, and the court correctly entered judgment on the claim in 

defendant's favor.10

Plaintiff also argues defendant is barred under the doctrine of equitable 

estoppel from disputing that she was a partner in Boyd & Boyd when it 

provided legal services to Barbuto. We do not address the issue because it was 

not raised before the trial court and does not go to the court's jurisdiction or 

present an issue of public concern. Nieder v. Royal Indem. Ins. Co., 62 N.J. 

10

 "The abiding concern animating the RPCs governing law firm names . . . is 

to ensure that the public is protected from deceptive or misleading 

communications by attorneys when advertising who they are . . . ." In re 

Comm. on Attorney Advert., 213 N.J. 171, 183 (2013). RPC 7.5(c) allows a 

law firm to include in its name the name of a "person not actively associated 

with the firm as an attorney . . . who [has] ceased to be associated with the 

firm through death or retirement." During Boyd & Boyd's representation of 

Barbuto, defendant's last name could have been properly included in the law 

firm's name during her retirement. However, "the Supreme Court's 

explanatory comments to RPC 7.5 indicate that when a firm retains the name 

of a deceased or retired partner, the 'status' of that attorney must be clearly set 

forth on the firm's letterhead." Kevin H. Michels, New Jersey Attorney Ethics, 

§6:2-5(a) at 86 (2020) (citing Rules of Professional Conduct, Rule 7.5 

comment, N.J.L.J., July 19, 1984, supp. at 16). In the law firm's letterhead and 

advertising materials introduced as evidence at trial, defendant's status as a 

retired partner was not "clearly set forth"; the letterhead and materials did not 

include defendant's full name or any indication that defendant, as one of the 

two Boyd's listed in the firm's name, was retired.
A-4014-17T4 17

229, 234 (1973); see also State v. Robinson, 200 N.J. 1, 19 (2009) ("Appellate 

review is not limitless. The jurisdiction of appellate courts rightly is bounded 

by the proofs and objections critically explored on the record before the trial 

court by the parties themselves."). 

Affirmed.