NJ: Entire Controversy Doctrine Not a Bar to Separate Legal Malpractice Action
Donohue v. Kuhn, 696 A.2d 664 (N.J. 1997) (PDF)
Student Contributor: John Anzalone
Facts: Plaintiffs retained Defendant attorney to represent them in a wrongful death and survivorship suit. The attorney failed to file the cases before the applicable statute of limitations. The Plaintiffs secured another attorney after the statute of limitations passed, but the suit for wrongful death was dismissed for not being filed within the statute of limitations period. While the survivorship claim case was on going, the plaintiffs brought this malpractice suit.
Issue: Does the "entire controversy doctrine" prevent the Plaintiffs from suing Defendant attorney because they failed to add a legal malpractice claim against Defendant attorney in the survivorship case that was still before the trial court?
Ruling: In reversing the Appellate Division, the New Jersey Supreme Court held that the entire controversy doctrine did not require that the Plaintiffs had to amend their complaint to add an attorney that allegedly committed legal-malpractice claims in the survivorship suit to that case for their suit against the Defendant attorney to go forward.
Lesson: Legal malpractice claims are exempt from the entire controversy doctrine in NJ. A plaintiff's failure to add a claim against a malpracticing attorney to an ongoing case in which it is alleged that the attorney committed an act or acts of negligence that harmed the plaintiff is not grounds for dismissing the case.
Editor's Note: This case was one of three on this issue decided by the New Jersey Supreme Court on the same day. See Olds v. Donnelly, 150 N.J. 424 (PDF). See also, NJ Court Rule 4:30A.
I think this holding sets forth a good policy. An attorney who fails to file the suit before the statute of limitations is up is committing per se negligence. The attorney should not be able to escape liability due to the status of the underlying case. An attorney who commits such obvious negligence, like not filing suit by the time the statute of limitations is up, or doesn't even notify their client of when that will be, should be held liable because of their blatant failure. they should not "get away with it" because they got lucky and the underlying case was dismissed.
It makes sense that the New Jersey Supreme Court decided to implament an overhaul regarding the way legal malpractice claims are supposed to be heard when they relate to an ongoing matter. I do not see why the claim of malpractice against the plaintiff's prior attorney needs to be joined with the survivorship suit, despite the fact that the attorney's malpractice related to his (lack of) prior behavior regarding same. While I appreciate the entire controversy doctrine for its purposes of encouraging comprehensive litigation and promoting judicial economy, I do not think it is appropriate to join legal malpractice claims in most instances. The issues are so unrelated in this case that it does not seem that joining the malpractice claim would effectuate the stated purposes of the doctrine.
I agree with the holding of this case. Legal Malpractice may present itself after an ongoing case and thus, should not be banned.
I also agree with the holding of this case because the underlying action and a malpractice action are not one in the same. Therefore, just because the underlying action is dismissed should not automatically result in the dismissal of the malpractice claim. I think the entire controversy doctrine is useful in other contexts but agree that there should be this exemption for malpractice cases.
I also agree with Ms. Deaner. An attorney should not be able to get lucky just because an underlying case is dismissed. While a lay person may be able to get away with this, attorney's are held to a higher standard, and as such, should be able to be held liable without an underlying action surviving.