By JODI SOKOLOWSKI
Buffalo Law Journal

A dispute over the recent departure of three associate attorneys from the Law Offices of William K. Mattar has been unfolding in court, and could spark investigations by a committee that oversees lawyer conduct in Western New York.

Dean Smith, Joseph Bergen and Todd Schiffmacher left Mattar's firm Oct. 15 - Mattar claims he locked the trio out of their offices - forming Smith Bergen & Schiffmacher LLP the next day, taking some of Mattar's clients with them.

Mattar said last week that the three lawyers have obtained 106 clients out of his 775 total active cases. He said clients contacted him in mid-October saying that his three associates called to say that they would now be handling the files.

"As soon as this happened, it was a major shock," he said.

Since then, Mattar and the Smith Bergen & Schiffmacher lawyers have been trading accusations regarding Mattar's policies on disposition of cases, on the one hand, and the timing and nature of the three associates' departure from his firm, on the other.

Bergen said the main reason he and his partners left their former firm was that Mattar enforced a weekly "quota" of cases that must be resolved by settlement, a practice Bergen said "wasn't ethical." He supplied memos, dated Jan. 2 and July 27, from Mattar to his staff stating, respectively, that two settlements per week "is a minimum number" and "each attorney need(s) to settle about 3 cases a week."

Mattar's attorney, Ralph Halpern of Jaeckle Fleischmann & Mugel LLP, said Oct. 31 that "goals" at a personal-injury firm are similar to billable hours at a commercial firm, and are in no way unethical.

"They can throw up smoke screens and try to divert attention," Mattar said in response to Bergen's accusations, "but if you look closely at what was done, I believe (that) trying to convince clients to leave a law firm while employed is wrong; it's dishonest, it's disloyal."

Bergen has also claimed that Mattar does not handle any litigation himself.

"In terms of taking a client's file, going to court with it, picking a jury, making an opening argument and presenting medical evidence - all the nitty gritty of personal-injury work - he has an understanding of it, but he's never done that," Bergen said. "The only thing he's mentioned to me is his depositions."

In a Nov. 1 e-mail to the Law Journal, Mattar addressed what he describes as a widely held misconception about his firm.

"For some reason, some members of the bar have the perception that this firm is referring out auto injury cases for litigation," he wrote. "This is not true."

In the e-mail, Mattar acknowledges that in the last four years, fewer than nine cases were referred to lawyers not affiliated with his firm - "NONE for the purpose of litigation," he wrote. Some cases were referred out because they involved accidents that occurred in Canada or Pennsylvania, he said.

Bergen maintains that at least 50 percent of the firm's cases were being referred out to other attorneys and firms until 2005, when more attorneys, including Smith and Schiffmacher, were hired at the firm.

Ethics investigations to follow?

State Supreme Court Justice Hon. Gerald Whalen recently heard arguments from both firms as to how the client files should be distributed, and will later determine payment of disbursements and division of fees. Both firms have provided affidavits from clients supporting some of their claims.

Meanwhile, Gregory Huether, chief counsel of the Attorney Grievance Committee for the 8th Judicial District said he can neither confirm an investigation nor comment on hypothetical situations.

His predecessor as chief counsel said that referring out cases and giving employees a baseline for progress are not necessarily improper or unethical.

However, said David Edmunds, now of counsel to Phillips Lytle LLP, it is possible that the Grievance Committee could investigate the attorneys involved in this dispute.

"A lawyer can never put his own personal or professional interests above those of a client," he said. "Settling a case because it is an administrative requirement or a goal would certainly raise questions," said Edmunds. "(The committee) would be looking to see if the clients are being harmed in any way before they take affirmative action," he said. The Grievance Committee typically does not get involved in separation of clients and division of fees, he noted.

Most business disputes between former law colleagues are resolved outside of court, said Edmunds.

"The threshold question must always be, ‘Who did the client belong to initially?' and if there were any arrangements in place between the departing attorney and the principal attorney in what would happen in those circumstances," he said.

Both firms say they want to focus on business. Mattar said he has hired one "experienced" trial attorney and plans to hire two or three more soon.

"At this point, I'm really focusing on this law firm and making sure that our work continues to be produced and done," said Mattar.