Scott v. Calpin, U.S. District Court, New Jersey, March 2, 2010

Facts:  The Defendant attorney moved to dismiss a professional negligence action against him for failure to submit an Affidavit of Merit pursuant to N.J.S.A. 2A:53A-27.  The New Jersey Affidavit of Merit Statute requires "an affidavit of appropriate licensed person stating that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices".  Plaintiff, thereafter, submitted an Affidavit from an attorney licensed in Pennsylvania. 

The Defendant attorney objected to the Affidavit, arguing that "pursuant to [the New Jersey Affidavit of Merit Statute] such an Affidavit for a legal malpractice matter must be from an attorney licensed to practice law in the State of New Jersey," since the New Jersey Affidavit of Merit statute defines "licensed persons" as "attorney[s] admitted to practice law in New Jersey".  

Plaintiff, however, pointed to the portion of the Statute which provides that "the person executing the Affidavit shall be licensed in this or any other State; have particular expertise in the general area of specialty involved in the action…for a period of at least five years".

Issue:  Can an attorney licensed in another state provide a valid New Jersey Affidavit of Merit? 

Ruling:  Yes.  The Court recognized that "the overall purpose of the [Affidavit of Merit] statute is `to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation."  The Court further noted that the Statute’s definition of "licensed person" applies to the class of persons for whom an Affidavit is required.  

Accordingly, it ruled: 

Plaintiff produced an affidavit from an appropriately licensed attorney with over thirty years of experience in the areas of family law and divorce proceedings and who has attested to the "reasonable probability" that Defendant’s representation of the Plaintiff fell below "the acceptable standard of care" required of attorneys in divorce proceedings.

Lesson:  An experienced attorney licensed in a state other than New Jersey can provide the affidavit required by N.J.S.A. 2A:53A-27 in legal malpractice actions.