                        NOT FOR PUBLICATION WITHOUT THE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.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2392-15T2

ANTHONY ANGELO,

        Plaintiff-Appellant,

v.

JOEL I. BERGMAN,

        Defendant-Respondent.

________________________________

              Submitted March 14, 2017 – Decided July 28, 2017

              Before Judges Fisher and Leone (Judge Fisher
              concurring).

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-3937-
              13.

              Edward R. Grossi, attorney for appellant.

              Robert G. Ricco, attorney for respondent.

PER CURIAM

        Plaintiff Anthony Angelo appeals the trial court's January

8, 2016 order granting summary judgment in favor of defendant Joel

Bergman, his former attorney.            We affirm.
                                        I.

     The parties' statements of undisputed material facts include

the following.         Plaintiff brought a medical malpractice case

against a pain management doctor.              Plaintiff was represented by

Bergman during the trial, at which Dr. Antonio Aldrete testified

as plaintiff's expert witness. In 2011, after three days of trial,

plaintiff settled that case for $200,000.

     In 2013, plaintiff filed a lawsuit against Bergman, the

attorney who negotiated the settlement on his behalf.                Plaintiff

hired Anthony Ambrosio, an attorney, as an expert to write a report

on plaintiff's allegations of legal malpractice.             Ambrosio issued

his report in December 2014.        He was deposed in September 2015.

     Based on Ambrosio's deposition, Judge Vicki A. Citrino found

Ambrosio rendered a net opinion.             The court dismissed plaintiff's

legal malpractice claim on summary judgment.

                                        II.

     If    "a     trial   court    is    'confronted     with   an   evidence

determination precedent to ruling on a summary judgment motion,'

it 'squarely must address the evidence decision first.'              Appellate

review    of    the   trial   court's   decisions    proceeds   in   the   same

sequence[.]"      Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,

384-85 (2010)).        "On appeal, then, those rulings will be gauged

                                         2                             A-2392-15T2
separately: the evidentiary ruling under an abuse of discretion

standard,    and    the    legal    conclusions      undergirding        the    summary

judgment motion itself on a plenary de novo basis."                          Estate of

Hanges, supra, 202 N.J. at 385.                 We must hew to those standards

of review.

                                           III.

      "Legal-malpractice           suits    are    grounded      in    the     tort    of

negligence."       McGrogan v. Till, 167 N.J. 414, 425 (2001).                        "The

elements of a cause of action for legal malpractice are (1) the

existence of an attorney-client relationship creating a duty of

care by the defendant attorney, (2) the breach of that duty by the

defendant, and (3) proximate causation of the damages claimed by

the plaintiff."       Ibid.

      "As in nearly all malpractice cases, plaintiff needed to

produce     an    expert   regarding        deviation     from     the   appropriate

standard."       Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179

N.J. 343, 362 (2004).         "As 'the duties a lawyer owes to his client

are   not   known    by    the   average        juror,'   expert      testimony       must

necessarily set forth that duty and explain the breach."                       Buchanan

v. Leonard, 428 N.J. Super. 277, 288 (App. Div. 2012) (quoting

Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 78 (App. Div.

2007)), certif. denied, 213 N.J. 534 (2013).                     "[W]ithout expert

testimony, a jury simply does not have the knowledge, training,

                                            3                                   A-2392-15T2
or experience to decide the settlement value of plaintiff's claim."

Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 104 (App.

Div. 2001) (quoting Kelly v. Berlin, 300 N.J. Super. 256, 269

(App. Div. 1997)).

     "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . .

which     forbids     the    admission     into     evidence     of   an    expert's

conclusions that are not supported by factual evidence or other

data.'"     Townsend, supra, 221 N.J. at 53-54 (citation omitted).

"The net opinion rule is succinctly defined as 'a prohibition

against speculative testimony.'"                Harte v. Hand, 433 N.J. Super.

457, 465 (App. Div. 2013) (citation omitted).                         "That is, an

expert's bare opinion that has no support in factual evidence or

similar data is a mere net opinion which is not admissible and may

not be considered."         Pomerantz Paper Corp. v. New Cmty. Corp., 207

N.J. 344, 372 (2011); see Townsend, supra, 221 N.J. at 57-59.

                                          A.

     Plaintiff        argued   Bergman     committed    legal     malpractice           in

valuing the case at $200,000.             Plaintiff retained Ambrosio as his

expert    to   show    a    breach   of   the    standard   of   care      for     legal

malpractice.     In his expert report, Ambrosio opined: "Bergman was

negligent in advising Plaintiff to settle his case for $200,000.

From a review of other jury verdicts and a reasonable assessment



                                           4                                     A-2392-15T2
of the case based on my experience, a reasonable settlement value

of this case was $500,000."

     However, in his deposition, Ambrosio conceded defendant's

considered opinion of "[$]200,000 and take this and go home is a

judgement call and is not malpractice."   He also agreed "the real

issue of this case" was not "whether [$]200,000 was fair or not."1

     Thus, Ambrosio "completely abandoned his original opinions

concerning [the] deviation from the . . . accepted standard of

care" on the valuation issue.   Ritondo by Ritondo v. Pekala, 275

N.J. Super. 109, 116 (App. Div.), certif. denied, 139 N.J. 186

(1994).   This case is similar to Ritondo.         In that medical

malpractice   action,   plaintiff's   medical   expert,    on      cross-

examination, "effectively retracted" his direct testimony as to

the doctor's deviations from the standard of care.        Ibid.     After

reaffirming his original opinions on redirect, the expert again

retracted that testimony on re-cross.       Id. at 115.         We were

persuaded "that the value of testimony given by a witness on direct

examination may be entirely nullified by admissions on cross-




1
  Ambrosio said that the real issue in this case was "whether or
not . . . [plaintiff] was somehow pressure[d] or misinformed into
settling."   Ambrosio agreed that was "a separate and distinct
issue from the monetary valuation of the case." We address that
issue in the next section.

                                 5                                A-2392-15T2
examination." Id. at 116. Similarly, Ambrosio's testimony negated

his opinions in his report.

      Plaintiff cites a portion of the deposition where Ambrosio

stated he was not "retracting that portion of [his] expert opinion

that alleges malpractice based on an improper valuation of the

case at $200,000."2       However, later in his deposition Ambrosio

conceded that "valuation is an art," that you "[c]an't fault"

Bergman for "giving his best judgment that this is [plaintiff's]

best chance to settle" if that was "his considered opinion," and

that his advice to settle for $200,000 was "not malpractice."

      Plaintiff argues Bergman recommended the $200,000 settlement

because he mistakenly believed the medical malpractice case would

be   dismissed   before   it   reached   the   jury.   Plaintiff     cites

Ambrosio's report which stated:

                A reasonably prudent and competent
           attorney   who   reviewed    Aldrete's  trial
           testimony would conclude that there was no
           question that this case would reach a jury.
           Thus, Bergman acted below the applicable
           standard of care in advising Angelo to settle
           the case for $200,000, as Bergman has
           indicated the only reason that he advised
           Angelo to settle the case [w]as the inability
           to prove the negligence and malpractice.



2
 Ambrosio explained that "if everything [plaintiff] says was true,
in terms of his complaints, it would be worth a lot more than
$500,000."   However, Ambrosio conceded that "maybe Mr. Angelo
won't be [b]elieved at trial."

                                    6                              A-2392-15T2
Nonetheless, Ambrosio abandoned the core of that opinion when he

admitted in his deposition that a $200,000 settlement was not

malpractice.

                                          B.

      In his report, Ambrosio stated "an additional element of the

Defendant's malpractice is the failure to adequately explain the

mechanics of the settlement."                  In open court in plaintiff's

presence, Bergman stated "there's been an agreement as to a

High/Low in this case," and "[$]200,000 is the low and [$]500,000

is the high."      He stated that he had spoken to plaintiff and gone

through the evidence and that they had decided not to proceed

further with the case.            Counsel and the trial court agreed to

enter a judgment of no cause dismissing the case with prejudice.

      On March 25, 2011, plaintiff and Bergman signed a General

Release explaining that plaintiff was releasing his claims against

the   doctor     and   in   return   he       would   "receive    the   amount    of

$200,000.00."      The signed release stated that "the terms of the

settlement and this Release have been completely read and explained

to [plaintiff] by [Bergman]," that plaintiff "fully understands

. . . the terms of the settlement and of this Release," and that

he    "entered    into      the   settlement      and    signed    this   Release

voluntarily" and "without any undue influence."



                                          7                                A-2392-15T2
    Ambrosio was unaware of this release when he wrote his report.

When confronted with the release in his deposition, Ambrosio

testified:

         Q.   What is the significance of [plaintiff]
              entering into a settlement agreement or
              in this case, a general release, a month
              after the settlement was entered into in
              open court?

         A.   Well, the only way he is going to get any
              money is to sign this release. So this
              is, again, an opportunity for him to
              reject the settlement.

         Q.   Now, is it significant that he didn't
              reject the settlement?

         A.   I am afraid it is. . . .     It sort of
              undercuts his credibility, frankly.

                   . . . .

         Q.   What would – how would his case in this
              case be different if he had refused to
              sign that release?

                   . . . .

         A.   He probably would be in a position to
              move to vacate the settlement, based upon
              he didn't give proper consent. But that
              [signature of the release] undercuts any
              ability to do that.

         Q.   Does that mean now that, in fact, in
              reality, he gave consent to Mr. Bergman
              and wanted to go forward with the
              settlement?
                   . . . .

         A.   Yes, that's what that means.


                               8                           A-2392-15T2
     Ambrosio conceded that plaintiff knew he would get $200,000

in the settlement, and that plaintiff knew the settlement would

end his medical malpractice case.     When asked about plaintiff's

claim "he didn't even know the amount of the settlement for six

months after it took place," Ambrosio testified he did not "find

it credible."3 Accordingly, Ambrosio in his deposition effectively

negated his prior opinion that plaintiff did not understand he was

settling his case for $200,000.

     Plaintiff argues that what Bergman referred to as "a high-

low agreement" was a fraud.    We agree the parties did not enter

into a true high-low agreement, which is designed to limit the

parties' risks from the jury's verdict.4      Rather, the parties

entered into the so-called high-low agreement at the same time as

they settled the case for $200,000, so there was no risk from a

jury verdict.   Despite counsel misrepresenting to the trial judge



3
  Ambrosio also admitted it was not malpractice to settle the case
in open court in plaintiff's presence without a voir dire of
plaintiff or a simultaneous written confirmation of the
settlement.
4
  "A high-low agreement is a device used in negligence cases in
which a defendant agrees to pay plaintiff a minimum recovery in
return for plaintiff's agreement to accept a maximum sum regardless
of the outcome of the trial." Benz v. Pires, 269 N.J. Super. 574,
578 (App. Div. 1994). "A high-low agreement protects a plaintiff
from the danger of receiving less than the floor amount and
protects a defendant from exposure to a judgment higher than the
agreed ceiling." Id. at 579.

                                  9                         A-2392-15T2
in the medical malpractice action that the parties had entered

into a "high-low agreement," it is undisputed the parties really

settled   the    case     for   $200,000.        It    appears    the   parties

characterized their $200,000 settlement as a "high-low agreement"

to allow the doctor to pay plaintiff the $200,000 without having

to report any malpractice.

     We do not endorse the parties' deliberate mislabeling of

their medical malpractice settlement.                 Nonetheless, plaintiff

failed to show it breached a duty to him or damaged him.                Ambrosio

testified there was no "impropriety in reaching a settlement . . .

in order to allow the doctor not to have to report" malpractice,

adding:   "It   happens    oftentimes.      It   is    a   big   incentive    for

settlement."    In any event, the so-called high-low agreement did

not change the essentials of the settlement                  for plaintiff       –

dismissal of his case in return for $200,000 – which Ambrosio

conceded plaintiff understood.

     Thus, Ambrosio's "negation" in his deposition testimony of

the key portions of his report "was a clear and unequivocal

withdrawal of his opinion.          As a result, [plaintiff was] left




                                     10                                  A-2392-15T2
without proof of any deviation of the standard of care, a necessary

element of [his] claim."    Ritondo, supra, 275 N.J. Super. at 116.5

      That rendered Ambrosio's report a net opinion which the trial

court properly precluded.    A reviewing court will overturn a trial

court's decision to preclude expert opinion only "'when a decision

is made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'"        U.S.

Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citation

omitted).    We find no abuse of discretion here.

      Thus, Ambrosio did not show a breach of the standard of care

in Bergman's advice to settle or his explanation of the mechanics

of   the   settlement.   Plaintiff    nonetheless   argues   Ambrosio's

references to the Rules of Professional Conduct were sufficient

to establish a standard of care.      Plaintiff notes that under the

ethics rules "[a] lawyer shall abide by a client's decision whether

to settle a matter."     R.P.C. 1.2(a).   Ambrosio also cited ethics


5
 Plaintiff notes that Ambrosio filed a certification in opposition
to summary judgment claiming that he "neither recanted nor
retracted anything."    However, "a trial court may reject an
affidavit as a sham when it 'contradict[s] patently and sharply'
earlier deposition testimony, there is no reasonable explanation
offered for the contradiction, and at the time the deposition
testimony was elicited, there was no confusion or lack of clarity
evident from the record." Hinton v. Meyers, 416 N.J. Super. 141,
150 (App. Div. 2010) (quoting Shelcusky v. Garjulio, 172 N.J. 185,
200-01 (2002)). In any event, the certification focused on the
claimed failure to explain how much plaintiff would "net" from the
settlement, a claim plaintiff does not renew on appeal.

                                 11                             A-2392-15T2
rules that "[a] lawyer shall keep a client reasonably informed

about the status of a matter," and "shall explain a matter to the

extent reasonably necessary to permit the client to make informed

decisions regarding the representation."        R.P.C. 1.4(b), (c).

However, particularly after being confronted with the release

signed by plaintiff, Ambrosio conceded that plaintiff was informed

of the status of the matter, was able to make informed decisions,

and decided to settle the case for $200,000.       Given Ambrosio's

concessions in his deposition, plaintiff could not show Bergman

violated the ethics rules.6

     In any event, "the assertion that an attorney has violated

one of our ethical rules does not give rise to a cause of action."

Green v. Morgan Props., 215 N.J. 431, 458 (2013).          "[S]tate

disciplinary codes are not designed to establish standards for

civil liability but, rather, to provide standards of professional

conduct by which lawyers may be disciplined."    Baxt v. Liloia, 155

N.J. 190, 202 (1998).   "Although the Rules of Professional Conduct

may inform the scope of an attorney's duties, those rules do not,



6
 Ambrosio's concessions similarly belied his report's citation of
ethics rules that a lawyer shall not engage in "gross negligence,"
and "shall act with reasonable diligence and promptness in
representing a client." R.P.C. 1.1, 1.3. Ambrosio's concession
regarding the high-low agreement also undermined his report's
citation of ethics rules concerning candor toward the tribunal,
R.P.C. 3.3, and conduct involving dishonesty, R.P.C. 8.4(c).

                                12                           A-2392-15T2
in themselves, create a duty, and a violation of those rules,

standing alone, does not form the basis of a cause of action."

Banco Popular N. Am. v. Gandi, 184 N.J. 161, 182 n.8 (2005).

     Ambrosio could cite the ethics rules to support his opinions

on the standards of care. Baxt, supra, 155 N.J. at 199-200; Carbis

Sales, supra, 397 N.J. Super. at 79.      However, those ethics rules

could not support a cause of action after his repudiation in his

deposition of any breach of those standards, and the resulting

exclusion of his net opinion.

     Accordingly, we agree with the trial court that Ambrosio's

report amounted to a net opinion and was properly excluded.

                                  IV.

     The   exclusion   of   Ambrosio's   net   opinion   left   plaintiff

without admissible expert testimony.           As expert testimony was

required to carry plaintiff's burden to show legal malpractice,

the trial court properly granted summary judgment.         See R. 4:46-

2(c) and Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995).

     Plaintiff's remaining arguments lack sufficient merit to

warrant discussion.     R. 2:11-3(e)(1)(E).       We need not address

Bergman's remaining arguments.

     Affirmed.



                                  13                              A-2392-15T2
FISHER, P.J.A.D., concurring.

     I agree with nearly all my colleague has said about this

case.   I   write   separately   to   offer    a   few   comments    about   one

particularly odd circumstance.

     Plaintiff's medical malpractice action, which lies at the

heart of this legal malpractice action against his attorney in

that case, was resolved when, at some point during the trial of

the former,1 plaintiff's then attorney (defendant Bergman) advised

the trial judge the matter had been settled. Here's the entire

agreement as then described by defendant Bergman:

            THE COURT: Okay, what could I do for you?

            MR. BERGMAN: If Your Honor pleases – first of
            all we need to state on the record that there's
            been an agreement as to a High/Low in this
            case.

            THE COURT: Okay. What are the parameters of
            that?

            MR. BERGMAN: The parameters are 200,000 is the
            low and 500,000 is the high.

            THE COURT: Is that correct . . . ?

            [DEFENSE   COUNSEL]:      That    is   correct,   Your
            Honor.

            THE COURT: Okay.




1
  We have only been provided with a few pages of the trial
transcript in that matter.
No one added anything further to this description of the settlement

and, immediately following the above colloquy, defendant Bergman

said he had "gone through all of the evidence [with plaintiff] and

[described] what I would be intending herein after [to prove] and

decided that . . . we're not going to proceed further with the

case." With that, defense counsel requested a dismissal with

prejudice, which the judge immediately granted. So ended the

medical malpractice action.

       Taken at face value, there can be no dispute about the nature

of the agreement defined, albeit briefly, by defendant Bergman.

He called it a high-low agreement and, when asked, he identified

the high and the low. What he described was entirely consistent

with   how   we've   defined   a   true   high-low   agreement,   i.e.,    an

arrangement by which "defendant agree[d] to pay plaintiff a minimum

recovery in return for plaintiff's agreement to accept a maximum

sum regardless of the outcome of the trial." Benz v. Pires, 269

N.J. Super. 574, 578 (App. Div. 1994); see also Serico v. Rothberg,

448 N.J. Super. 604, 613 (App. Div.), certif. granted, __ N.J. __

(2017); Malick v. Seaview Lincoln Mercury, 398 N.J. Super. 182,

184 n.1 (App. Div. 2008).

       If what was represented to the trial judge in the medical

malpractice action actually expressed the parties' true settlement

agreement, then, in my view, we would be required to reverse the

                                      2                             A-2392-15T2
summary    judgment       entered      in   Bergman's        favor     in   this     legal

malpractice action. If the parties to the medical malpractice

action entered into a true high-low agreement, there would be no

reason – having secured his adversary's agreement to pay his client

$200,000 no matter what thereafter occurred – for Bergman to

immediately volunteer that his client could not survive a motion

to dismiss, pack his bags, and walk away from a potentially greater

recovery.     A   legal     malpractice         claim    based    on   a    theory     that

defendant was negligent in failing to pursue the possibility of a

greater reward – with no downside risk – does not, in my view,

even require the support of expert testimony. Any juror could

understand,       without    the       assistance       of   an   expert,     that      the

plaintiff's attorney was negligent. Consequently, if the parties

actually      entered     into     a    high-low        agreement,     defendant        was

negligent in failing to take his free spin and proceed to a final

disposition of the trial even if a greater recovery seemed far out

of   reach.    Had   plaintiff         pursued     this      theory    in   this     legal

malpractice action, the motion judge would have been required to

deny Bergman's motion for summary judgment.

      Plaintiff, however, has not pursued that theory. Plaintiff's

argument on appeal and his expert's opinion are based on a premise

that the settlement agreement was a false or fraudulent high-low

agreement – that it wasn't a high-low agreement at all – that it

                                            3                                      A-2392-15T2
was simply a disguised agreement to settle for $200,000. In short,

plaintiff does not dispute that when Bergman said the parties

entered into a high-low agreement he really meant that plaintiff

agreed to accept $200,000 in exchange for a release of his claims.

     With these additional comments, and out of a concern that

what occurred when the medical malpractice action was settled is

not viewed as, and doesn't become, "business as usual" in our

trial courts, I join in affirming the summary judgment entered in

favor of defendant.




                                4                          A-2392-15T2
