NJ When Does Legal Malpractice "Occur" under the Affidavit of Merit Statute?
Christie v. Jeney, 167 N.J. 509 (2001)
Student Contributor: Daniel Schick
NJ Underlying Civil/Commercial Litigation
Facts: Christie retained Jeney to pursue three claims on his behalf. Christie then alleged that in the course of the representation, Jeney failed to answer discovery requests in a contract claim, failed to properly serve and plead a civil-rights claim, and negligently allowed the statute of limitations to run on a defamation claim.
Plaintiff subsequently retained new counsel (Lucas) and filed a three-count malpractice complaint against Jeney. Jeney answered the complaint and demanded that Christie serve an affidavit of merit pursuant to the New Jersey Affidavit of Merit statute (“AMS”). Upon Plaintiff’s failure to do so, Jeney moved to dismiss the action for failing to satisfy the AMS. Christie then submitted the requisite Affidavit of Merit. Since dimissals under the AMS were without prejudice, and Christie could simply re-file the malpractice action, the Law Division denied Jeney's motion to dismiss, despite the fact that Christie’s Affidavit of Merit had not been submitted within the time limits set forth under the AMS.
Thereafter, the Supreme Court of New Jersey affirmed a portion of Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998), an earlier case, holding that dismissals under the AMS were to be with prejudice. In light of this decision, Jeney moved for reconsideration. The Law Division concluded that Christie's claims against Jeney accrued after the effective date of the AMS, and therefore, Christie's failure to provide a timely affidavit of merit required dismissal of the claims with prejudice.
Christie then filed a second amended complaint adding Lucas as a defendant, alleging that Lucas negligently failed to provide an affidavit of merit, leading to the dismissal of the action against Jeney. Lucas challenged the Law Division order dismissing Christie's complaint against Jeney. The Law Division denied the motion and the Appellate Division denied leave to appeal. The Supreme Court granted Certification.
Issue: How do you determine whether a legal malpractice action is or is not subject to the requirements of the AMS?
Ruling: The critical inquiry under the AMS is whether the actual conduct underlying the legal malpractice claim took place before the effective date of the statute (June 29, 1995). As the Law Division recognized, the allegations of malpractice against Jeney almost entirely referenced his conduct prior to June 29, 1995. Therefore, the AMS did not apply to Christie's claims against Jeney. The lower court’s holding was reversed and the action was remanded for further proceedings.
Lesson: The AMS became effective June 29, 1995, and explicitly states that it would apply to causes of action which “occur” on or after that date. Accordingly, the statute applies only to cases where the acts constituting the alleged malpractice took place on or after the effective date of the statute. The “filing” date of the malpractice action is irrelevant.
So is it safe to say that today, attorneys don't have to worry about this date because the statute was enacted almost 15 years ago well beyond the statute of limitation in a legal malpractice action brought today? In other words, wouldn't cases having this question be beyond the statue of limitations for an act occurring prior to the enactment date?
I think Mr. Lieberman is right. Given the passage of time since the enactment date, this cases ruling is not particularly helpful in practice in New Jersey. However, I add that the case is valuable because it's useful for illustrating how the legislatures restrictions of legislative changes to the law to actions that occur after some selected date play out in practice.