Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

Donnelly v. O'Malley & Langan. P.C., U.S. Court of Appeals, Third Circuit (March 16, 2010).

Facts: Donnelly filed an action for legal malpractice against his former attorneys who had represented him in a workers' compensation matter. He raised claims of invasion of privacy under state law, breach of contract, legal malpractice, and violation of his state and federal constitutional rights.

On Defendants' motion, the District Court dismissed Donnelly's breach of contract/legal malpractice claim, holding that he failed to submit a Certificate of Merit, which is required under Rule 1042.3(a) of the Pennsylvania Rules of Civil Procedure, absent a reasonable explanation or legitimate excuse.

Donnelly filed an appeal arguing that he did not need a Certificate of Merit, since his claim sounded in breach of contract.  Further, he argued, the allegation that employment law was beyond the expertise of the Defendants was easy for an ordinary person to understand.

Issues: Did Donnelly need to submit a Certificate of Merit to continue with his legal malpractice action? 

Ruling: Yes.

Regardless of how he chooses to characterize his claim, however, Donnelly's allegations pertain to the quality of the O'Malley defendants' professional representation of him, and thus a [Certificate of Merit] is required.

The Court noted, however, that involuntary dismissal under Pennsylvania's Certificate of Merit Rule is not dismissal with prejudice.

Lesson: Err on the side of obtaining a Certificate of Merit in Pennsylvania for any claim which sounds in legal malpractice, no matter how it is characterized, or risk dismissal.

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Prosser v. Zeldin, NJ App. Div., December 30, 2010.

Facts: Plaintiff filed suit against his attorney in the underlying divorce action.  Plaintiff alleged he was "coerced into agreeing" to the divorce settlement and that "[d]uring the entire divorce process [he told Zeldin] that there was nothing in [a] public record that served as a legal document to confirm that there was a legal marriage."

Issue: Was an Affidavit of Merit necessary to proceed with the legal malpractice claim?

Ruling: Yes. The Appellate Division first explained: 

A condition precedent to maintaining a claim for legal malpractice against an attorney licensed to practice law in this state is the requirement that a plaintiff file an affidavit of merit in accordance with N.J.S.A. 2A:53A-27, which provides in pertinent part:

In any action for damages for personal injuries . . . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall . . . provide each defendant with an affidavit of an appropriate licensed person 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.

The Court then held that  in the context of a divorce proceeding, the fact of a marriage between parties may be established by testimony of the parties or other extrinsic evidence.  Further, knowledge and understanding of the proofs necessary to substantiate allegations in a divorce complaint is not a matter of common knowledge to the average juror.  Accordingly, it affirmed the trial court's decision to dismiss with prejudice.

Lesson: Err on the side of obtaining an Affidavit of Merit, or risk dismissal with prejudice. 

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Guyton v. Hunt, Court of Civil Appeals of Alabama, July 23, 2010.

Facts:  Guyton was convicted of sexually abusing a minor.  After his conviction, he retained Hunt to prepare and file a motion for new trial, and if that was denied, file an appeal.  Hunt's motion for a new trial was denied, but he never advised Guyton or Guyton's family members.  Shortly thereafter, Guyton filed an action against Hunt alleging fraud and legal malpractice, arguing that the delay in learning his motion had been denied caused a delay in filing his notice of appeal.  Guyton further argued that he incurred damages by paying another attorney to handle his appeal even though Hunt had already been paid to do so.  

The lower court dismissed the complaint against Hunt for failure to produce an expert report. Guyton appealed.

Issue:  

1. Could Hunt pursue a fraud claim separate and apart from a legal malpractice claim against Guyton?
2. Was Hunt's negligence a blatant error, or was expert testimony necessary to establish a breach of the duty of care? 
3. Was Hunt's negligence the proximate cause of any damage sustained by Guyton? 

Ruling: 

Alabama's Legal Services Liability Act provides, in pertinent part, as follows: 

(1) Legal service liability action. Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider's violation of the standard of care applicable to a legal service provider. A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.

Accordingly, Guyton's claim for fraud was subsumed by his claim for legal malpractice.  

The Appellate Court, however, disagreed with the lower court and held that "failure to notify a client of a ruling on a motion in time for the client to timely file an appeal constitutes a breach of the standard of care that is so apparent that expert testimony is not required for a layperson to understand that breach."  Nevertheless, the Appellate Court affirmed the lower court's dismissal of the malpractice action, since: 

Any delay, if indeed there was a delay, in filing Guyton's notice of appeal that may have been caused by Hunt's failure to "timely" notify Guyton of the denial of his postjudgment motion obviously did not preclude Guyton from timely filing his notice of appeal or prevent the Court of Criminal Appeals from considering his appeal. Guyton has not demonstrated that Hunt's delay, if any, caused Guyton harm. Furthermore, we conclude that based upon the record before us, Guyton failed to demonstrate that the outcome of his criminal case, i.e., his conviction and sentence, would have been any different had Hunt notified him of the denial of his postjudgment motion.

Moreover, with regard to damages, the Appellate Court noted that there was no evidence "Guyton himself contributed to [attorneys' fees].  Because Guyton did not pay any portion of the attorneys' fees in the underlying criminal action, he cannot claim he was damaged as a result of any allegedly unnecessary payments incurred because of Hunt's conduct."

Lesson:  In Alabama, multiple claims against a legal services provider will be subsumed under the "legal malpractice" umbrella.  Even where an attorney commits blatant negligence, the claim will be dismissed unless the former client is able to establish that he sustained damages as a result of the attorney's errors and omissions. 

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Crosby v. Pittman, Court of Appeals of Georgia, August 20, 2010. 

Facts:  Crosby retained Pittman to represent him with respect to a traffic citation.  Pittman advised Crosby that he would need to pay $350 to resolve the citation.  Crosby gave Pittman $350, only to learn that the citation was for $300 and it had never actually been paid.  

Crosby then sued Pittman for fraud and breach of fiduciary duty.  The lower court dismissed Crosby's complaint for failure to file an affidavit of merit pursuant to OCGA Section 9-11-9.1.  Crosby appealed.

Issue:  Is an affidavit of merit necessary for claims against an attorney other than legal malpractice, ie. fraud and breach of fiduciary duty?

Ruling:  No.  

The applicable Georgia statute requires that any complaint alleging professional malpractice against an attorney be accompanied by an expert affidavit setting forth at least one negligent act or omission claimed to exist and the factual basis for each such claim.  The appellate court, therefore, held that by its very language, the statute was only applicable to professional malpractice actions. The Court further noted: 

Additionally, claims for breach of fiduciary duty do not require an expert affidavit as they are not based on negligence involving the performance of the professional's services.

Accordingly, the appellate court reversed the dismissal of Crosby's complaint. 

Lesson:  In Georgia, plaintiffs need not obtain an affidavit of merit to pursue claims of fraud or breach of fiduciary duty against their former attorney.

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Sabella v. Estate of Milides, 992 A.2d 180 (Pa. Superior March 25, 2010). 

Facts:  The representatives of the Estate of Milides commenced an action arguing that Sabella participated in a fraudulent transfer of property to avoid satisfaction of a substantial judgment. Sabella filed preliminary objections.  Shortly thereafter, the Estate, through its attorney, filed a praecipe (writ) for satisfaction and termination of the civil suit, indicating it was "settled, discontinued, ended with prejudice and costs paid".  Sabella then filed the instant action for abuse of process against the Estate and its attorney, alleging wrongful use of civil proceedings.  

The Estate's attorney argued that the instant action ought to be dismissed because of Sabella's failure to file a certificate of merit in a "professional liability" matter.  Sabella disagreed since he had no attorney-client relationship with the Estate's attorney, and characterized the matter as an "abuse of process" case, rather than professional malpractice.  Sabella appealed after the lower court dismissed his action for failure to file a certificate of merit against the Estate's attorney.

Issue:  Does Pennsylvania require a Certificate of Merit in a civil action against an attorney for abuse of process by a third-party? 

Ruling:  No. 

The Court noted that two factors determine whether a claim alleges ordinary negligence as opposed to professional negligence: 

• Whether the claim pertains to an action that has occurred within the course of a professional relationship; and 
• Whether the claim raises questions of professional judgment beyond the realm of common knowledge and experience.

The Court further provided: 

Our Supreme Court retained privity (an attorney-client or analogous professional relationship, or a specific undertaking) as an element of proof necessary to maintain an action in negligence for professional malpractice. The only exception being a narrow class of third party beneficiaries under Restatement (Second) of Contracts § 302 where the intent to benefit is clear and the promisee (testator) is unable to enforce the contract.

***

If a complaint does not set forth a cause of action for legal malpractice, a certificate of merit is not required.

The Court held that Sabella's cause of action did not arise from within the course of a professional relationship with the Estate's attorney, nor was Sabella a third-party beneficiary.  Consequently, the lower court erred in designating Sabella's case as one of professional liability and dismissing it for failure to file a certificate of merit.

Lesson:  In Pennsylvania, a third-party need not file a certificate of merit in an action against an attorney.  By definition, given the lack of privity between the attorney and the third-party plaintiff, the action cannot be one for "professional malpractice."

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Donnelly v. O'Malley & Langan, P.C., et al., United States Court of Appeals, Third Circuit, March 16, 2010

Facts:  Plaintiff, proceeding pro se, filed suit against his former attorneys who had represented him in his underlying workers compensation claim.  He alleged that his attorney has failed to adequately investigate his claim prior to negotiating a settlement, and tendered his letter of resignation to his employer before settlement.  Plaintiff raised breach of contract and legal malpractice amongst other claims.

The attorneys moved to dismiss based, in part, on Plaintiff's failure to produce a Certificate of Merit.  The District Court granted the attorneys' motion as to both the breach of contract and legal malpractice claims for failure to produce a Certificate of Merit.  It held that Plaintiff provided no reasonable explanation for failing to file the certificate, and his promise to produce a legal expert in the future did not satisfy the requirement.

Plaintiff appealed and argued that no certificate of merit was necessary as to his breach of contract claims, since that claim did "not call for expert testimony to explain the [attorney's] lapses in judgment or failures in performance."

Issue:  Can Plaintiff proceed with a breach of contract claim against his former attorney without an affidavit/certificate of merit?  

Ruling:  No.

Regardless of how [Plaintiff] chooses to characterize his claim...[his] allegations pertain to the quality of [his former attorney's] professional representation of him, and thus a [Certificate of Merit] is required. 

Since Plaintiff could offer no reasonable explanation or legitimate excuse for his failure to furnish the certificate of merit, the Court dismissed Plaintiff's claim without prejudice.  Unlike New Jersey, the Pennsylvania statute does not require dismissal with prejudice for failure to file the required certificate of merit.

Lesson:   A certificate of merit must be filed in Pennsylvania with regard to any claim that requires the analysis of whether or not an attorney breached the applicable standard of care.  Whether the claim is characterized as beach of contract or legal malpractice is of no consequence. 

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Chen v. LaRocca, Superior Court of New Jersey, Appellate Division, April 28, 2010

Facts:  Plaintiff was represented by the Defendant attorney in her underlying divorce action.  Prior to trial, Plaintiff and her husband entered into a settlement agreement that was incorporated in their dual final judgment of divorce.

After entering into the settlement, Plaintiff filed suit against her former attorney alleging that he failed to uncover her ex-husband income and pension resulting in a less than favorable settlement. 

The Defendant attorney moved to dismiss for failure to state a claim.  He later supplemented his motion with a letter advising the Court that Plaintiff had failed to submit the required affidavit of merit against him. 

The trial court dismissed Plaintiff's complaint for failure to state a claim and on the additional ground that Plaintiff had not complied with New Jersey's Affidavit of Merit Statute.  Plaintiff appealed. 

Issue:  Can Plaintiff agree to settle her claims and subsequently file suit against her attorney claiming that her settlement was inadequate?  Is her failure to timely submit an affidavit of merit excusable? 

Ruling:  Yes.

The appellate division held that the trial court erred by dismissing this complaint with prejudice for failure to comply with the affidavit of merit statute:

Because LaRocca did not seek dismissal on that ground in his moving papers and raised the issue only by way of letter to the judge submitted after plaintiff filed her opposition to the motion, plaintiff had insufficient notice and no reasonable opportunity to demonstrate either substantial compliance or other circumstances excusing non-compliance. In this circumstance, a dismissal with prejudice for failure to comply with the statute effectively deprived plaintiff of the process due under our Rules of Court.

With regard to whether or not Plaintiff's complaint stated a cause of action against her former attorney, the court noted that Plaintiff's allegation that LaRocca had information about her former husband's income that he did not share with her prior to her acceptance of the settlement agreement, suggests a breach of the attorney's duty.  Surprisingly, the Court's opinion did not address whether Plaintiff had represented, either in the settlement itself or in Court, that she was entering into the settlement knowingly and voluntarily. 

Lesson:  In instances where an attorney does not timely bring critical information to his client's attention, the client may be able to sue for professional negligence even after entering into a settlement of the underlying matter.  The attorney may not be able to dismiss the action for failure to file an affidavit of merit within the statutory time frame without formal motion practice.

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Thakar v. Tan, D.N.J., March 25, 2010

Facts:  Dr. Thakar sued four attorneys for alleged malpractice and conspiracy in representing him in state and federal actions against JFK Medical Group. The attorneys who were timely served with Thakar's summons and complaint eventually moved to dismiss for failure to provide an affidavit under N.J.S.A. 2A:53A-27.  Thakar argued that his claim against at least one of the attorneys, for failure to abide by the applicable statute of limitations, fell under the "common knowledge" exception, and therefore, no affidavit of merit was necessary.

Issue:  Does an attorney's alleged failure to abide by the statute of limitations fall into the common knowledge exception, or is an affidavit of merit necessary? 

Ruling:  An affidavit of merit is required.

The factual predicate for a common knowledge case is one where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.  If, however, the claim's underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession, an affidavit of merit is required.

Thakar's claim does not turn on common knowledge. Thakar challenges [the attorney's] alleged delay in filing suit in state court, which he claims resulted in dismissal of the suit as barred by the statute of limitations. As the District Court observed, understanding a lawyer's duties with regard to a statute of limitations depends on an industry standard of care, and is beyond the experience of the ordinary person. Expert testimony would be required to determine the duty of care owed, and whether [the attorney's] actions breached that duty.

Thakar then argued that if an affidavit of merit was necessary, he had "substantially complied."  The Court rejected this argument as well, holding that Thakar's unsatisfactory consultation with several attorneys in an effort to obtain an affidavit of merit did not meet the requirements for substantial compliance:

(1) the lack of prejudice to the defending party;

(2) a series of steps taken to comply with the statute involved;

(3) a general compliance with the purpose of the statute;

(4) a reasonable notice of petitioner's claim; and

(5) a reasonable explanation why there was not strict compliance with the statute.

Lesson:  Plaintiffs are well advised to err on the side of obtaining affidavits of merit in legal malpractice matters.  Failure to obtain an affidavit within the time limits set for by the statute will not be excused in all but the most compelling circumstances.  

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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.

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Paragon Contractors, Inc. v. Peachtree Condominium Association et al., New Jersey Supreme Court, June 28, 2010

Facts: Plaintiff Paragon Contractors, Inc. sued defendant Peachtree Condominium Association for payment for construction work it performed on Peachtree's premises. Peachtree answered and counterclaimed for damages for Paragon's failure to properly complete drainage work at the site. Peachtree also filed a third-party complaint against Key Engineers, Inc., an entity that was hired to inspect and supervise Paragon's performance. With its third-party complaint, Peachtree filed a Case Information Statement which identified the matter as a construction case and did not respond to the question: "Is this a professional malpractice case?"

In its answer, Key raised the Affidavit of Merit statute as a separate defense. Further, in its Case Information Statement, Key characterized the case as one involving professional malpractice. Nevertheless, because the case originally was filed as a breach of contract action, the matter remained categorized by the civil case management staff as a construction case and was assigned to that track.

More than 120 days after Key filed its answer to Peachtree's third-party complaint and before Peachtree filed an affidavit of merit or a case management conference had been scheduled — Key filed a motion to dismiss the third-party action on the basis that Peachtree had failed to provide a timely affidavit of merit. In defense, Peachtree argued that the failure to schedule a Ferreira conference tolled the time frames in the Affidavit of Merit statute.

The trial judge rejected that argument and dismissed Peachtree's third-party complaint and all cross-claims against Key. The Appellate Division affirmed and Peachtree appealed to the New Jersey Supreme Court.

Issue: Whether the failure to hold a conference pursuant to Ferreira v. Rancocas Orthopedic Associates, tolls the filing period provided in the Affidavit of Merit statute?

Ruling: No. The Supreme Court held that the lack of a Ferreira conference would have no effect on plaintiff's responsibility to file an Affidavit of Merit within 120 days of the date of defendant's answer in a professional negligence action:

[P]arties are presumed to know the law and are obliged to follow it...Further, our creation of a tickler system to remind attorneys and their clients about critical filing dates plainly cannot trump the [Affidavit of Merit Statute].

The Court recognized the "confusion" over the issue and afforded relief to Peachtree. It warned, however, that "lawyers and litigants should understand that, going forward, reliance on the scheduling of a Ferreira conference to avoid the strictures of the Affidavit of Merit statute is entirely unwarranted and will not serve to toll the statutory time frames".

Lesson:  The lack of a Ferreira conference will no longer be a successful defense to the failure to timely comply with NJ's Affidavit of Merit statute.

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 Sharmrock Lacrosse, Inc. v. Klehr Harrison Harvey Bransburg & Ellers, et al (NJ App Div. 6-14-2010)

NJ underlying loss of patent due to alleged attorney negligence.

The Appellate Division has now ruled, in a case of first impression, that although New Jersey's Affidavit of Merit Statute does not list a Law Firm as a "licensed person" against whom an Affidavit of Merit is required in a legal malpractice suit, the law firm entity is to be considered a "licensed person" within the meaning of the statute. 

The facts are complex, the Judges tried to limit their holding to the unique facts of the case, but the Court's message--or at least the lesson for the practitioner seems  clear: 

1) Get an Affidavit of Merit for all defendants in a legal malpractice action in New Jersey, regardless of whether the defendant is admitted in NJ or not. 

2) Include in the Affidavit of Merit the law firm, as an entity, even though the law firm is a non-New Jersey based law firm.

The entire decision is worth reading.  Just click the case name above. 

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Salamoni v. Karoly, 2005 WL 3823056, 74 Pa. D. & C.4th 378 (Pa.Com.Pl. 2005)

PA Underlying personal injury claim

Student Contributor: Christopher S. Henn

Facts: Plaintiff suffered personal injuries after being struck by a car. Plaintiff engaged the Defendant attorney, Karoly, to seek recovery for his injuries in the accident. Defendants filed for issuance of a summons one day before the expiration of the applicable two-year statute of limitations. It was issued the same day but expired a month later because it was never delivered to the sheriff for service.

After the summons was reinstated, however, Plaintiff's case was dismissed on summary judgment because of the expiration of the statute of limitations. Subsequently, Plaintiff filed suit against Defendant Karoly and his associate for legal malpractice. Despite naming two Defendants, Plaintiff submitted a single certificate of merit as to both defendants. The Clerk of the Court, therefore, dismissed the malpractice action for failure to prosecute.

Issue: Is a single certificate of merit sufficient where there are multiple defendants?

Ruling: The Court held:

It was not the clerk's function to evaluate the sufficiency of this certificate. The clerk was without authority to enter a judgment of non pros under these circumstances…Where several defendants acting together are responsible for the same negligent act or omission, a single certificate of merit naming both or all defendants [is sufficient].

Lesson: The purpose of filing a certificate of merit is to ensure that the Plaintiff has not asserted a frivolous claim against the Defendant for professional negligence. Although the Plaintiff here did not comply with the technical requirements of Pennsylvania’s Certificate of Merit rule for each separate Defendant, the Court found that the purpose of the requirement had been fulfilled “[w]here both parties [were] jointly responsible for the same negligent act or omission”.

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Levinson v. D'Alfonso & Stein, 320 N.J.Super. 312 (App. Div. 1999)

NJ Underlying personal injury action

Student Contributor: Michael Park

Facts: Plaintiff hired attorney to handle his personal injury/automobile negligence claim. Plaintiff and attorney entered into a written retainer agreement, which contained a clause that provided that any settlement would require plaintiff's authorization before being accepted. However, at some time during the case, the attorney accepted settlement on plaintiff's behalf, despite not having authorization. The client filed an action against the attorney alleging negligence-professional malpractice, fraud, and breach of contract, but failed to provide an affidavit of merit. The action was then dismissed for failure to provide the affidavit of merit.

Issue: Was an affidavit of merit required to file a complaint of negligence-professional malpractice?

Ruling: The Superior Court, Appellate Division affirmed in part, and reversed and remanded in part the decision by the Superior Court, Law Division for the following reasons:
1) The court affirmed that the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to 29, applied to the plaintiff's claims of malpractice because the legally significant facts that gave rise to the cause of action did not occur until after June 29, 1995, the effective date of the statute. The court deferred to the Supreme Court's interpretation in Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998), where an affidavit requirement was not applicable where the principal facts that gave rise to a cause of action that occurred before the statute's effective date. Therefore, the plaintiff should have provided an affidavit from an appropriate licensed person, which would state that there is a reasonable probability that a departure from acceptable standards occurred.
2) The fraud alleged by the plaintiff was simply a repeat of the malpractice charge with the word “fraud” tacked on, and should therefore be dismissed.
3) The court reversed and remanded the decision by the lower court to dismiss the breach of the retainer agreement's approval-of-settlement clause because an expert evaluation is not needed to see that a simple breach of contract had occurred.

Lesson: When a complaint against an attorney alleges legal malpractice, an affidavit of merit must be provided, with few exceptions. The only way for the court to know whether a standard of care has been deviated from is if an expert in that profession will attest to that possibility by affidavit. For matters that would be obvious to laymen or those which do not involve a deviation from a professional standard of care,  such as breach of a  clause in a contract, an affidavit of merit is not required.

Practice Note:  Play it safe. Get your expert's affidavit of merit before you file your Complaint. You might even attach the Affidavit to your Complaint and file and serve them together. That eliminates the chance of missing the time limitations for timely serving an affidavit of merit, which can then lead to a dismissal of an otherwise meritorious Complaint. 

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Joyce A. Popwell v Law Offices of Broome and Horn, 363 N.J. Super. 404 (App. Div. 2002)

NJ: Underlying Negligence Action for a Slip and Fall

Student Contributor: Candice L. Deaner

Facts: Plaintiff’s attorney failed to file for a trial de novo in the time frame set out by R. 4:21A-6(b)(1), after the court appointed arbitrator found that plaintiff had no cause of action for negligence against the underlying defendant. A trial de novo filing would have preserved plaintiff’s claim and would not have subjected it to dismissal. Defendants made a cross motion to dismiss, alleging that Plaintiff’s failure to submit an affidavit of merit as required by statute is enough to grant summary judgment and dismiss the complaint

Issue: Whether the Plaintiff’s failure to submit an affidavit of merit is enough to grant summary judgment in favor of the Defendants and dismiss the complaint, or if the failure to submit the application for a trial de novo within the statutory time limit is per se legal malpractice, and thus requires no affidavit of merit.

Ruling:  . The requirement of the filing of an affidavit of merit is not applicable in this matter because the malpractice plaintiff's  allegations do not require the testimony of an expert  to determine the issue of negligence. The jury can exercise its  own “common knowledge”  is such cases.  

Lesson: In some very clear cases, such as here with the violation of a statutory time limit,  the lawyer's failure constitutes per se legal malpractice and no expert’s affidavit of merit is necessary. An affidavit of merit is not required from an expert for this case because the jury can determine whether the Defendants should be held liable for the late filing of the application for a trial de novo by using common knowledge without the need for expert testimony.

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Jackson v. Gary L. Sweitzer Enterprises, Inc., 67 Pa. D. & C.4th 239 (York County 2004)

Student contributor: Justin Lieberman

PA: Underlying Real Estate Matter

Facts: Plaintiffs filed a complaint against multiple Defendants, including Attorney Sedor, in December 2003 for professional negligence, fraud, and violation of Pennsylvania’s Consumer Protection Law. The complaint alleged that their attorney was aware, or should have been aware, that appraisals of Plaintiffs’ properties were inflated. Plaintiffs were allegedly damaged as a result of this negligence in that they were unable to obtain mortgages due to these inaccurate appraisals.

Counsel for the Plaintiffs failed to file a certificate of merit against the defendnant attorney, within 60 days of filing the complaint, as required under Pennsylvania Law (Pa.R.C.P. 1042.3) in cases alleging a professional liability claim. Defendant Sedor, therefore, moved for judgment non pros. The trial court entered judgment  in favor of Defendant Sedor.

Issue: Will the failure to file a certificate of merit bar all causes of action against an attorney?

Ruling: The Court denied Plaintiffs’ petition with respect to their claim of professional negligence against the attorney, but granted it on the remaining fraud and consumer protection law violation claims. The Court reasoned that the certificate of merit requirement was created to prevent frivolous professional negligence claims, not to bar all other causes of action a plaintiff may have against his attorney.

Lesson: The failure to file the required certificate of merit in a professional negligence claim will not preclude plaintiff’s other causes of action which are not based on professional negligence, against the defendant-attorney:

When a plaintiff fails to file a certificate of merit in an action alleging professional negligence, only those claims based on professional negligence should be dismissed.

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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.

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Joyce A. Popwell v Law Offices of Broome and Horn, 363 N.J. Super. 404 (App. Div. 2002)

NJ Underlying  Personal Injury action

Student Contributor: Candice Deaner

Facts: After the court appointed arbitrator found that plaintiff had no cause of action for negligence against the underlying defendant plaintiff’s attorney failed to file for a trial de novo within the time limits set out by R. 4:21A-6(b)(1),  A trial de novo filing would have preserved plaintiff’s claim for trial and would not have subjected it to dismissal. Defendants made a cross motion to dismiss, alleging that Plaintiff’s failure to submit an affidavit of merit in the legal malpractice action,  as required by statute, required the  grant  of summary judgment  dismissing the malpractice complaint.

Issue: Does the Plaintiff’s failure to submit an expert's affidavit of merit  to support its allegation of legal malpractice when it was common knowledge that failure to file a timely application for a trial de novo amounts to negligence per se for which no expert affidavit or testimony would be necessary.

Ruling:   The requirement of the filing of an affidavit of merit is not applicable in this matter because Plaintiff's allegations do not require the testimony of an expert in order to permit the jury to determine the issue of negligence.  Affidavits of merit are not required where, as here, it was  “common knowledge” that the defendant attorney was negligent in blowing a time limit the consequences of which included the dismissal with prejudice of plaintiff's causes of action.

Lesson: In clear cases of attorney negligence, where it is common knowledge that the attorney was negligent by violating a statutory time limit  that caused plaintiff to forefeit her claim, no expert's affidavit is required,  because the jury can determine whether the Defendants is negligent based on "common knowledge" and without the need for expert testimony.

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