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

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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Morris v. Brickfield & Donahue et al. (App. Div. April 14, 2010) (Unpublished)

Facts:  Vincent Morris retained Brickfield & Donahue to represent him on a direct appeal of his conviction of second-degree usury, bail motion, and the enforcement of a forfeiture settlement.  Morris did not prevail on the bail motion or appeal.  He then filed a civil action against Brickfield & Donahue for charging unreasonable fees under the parties' retainer agreement and failure "to perform in accordance with our agreement". 

Brickfield & Donahue successfully moved to dismiss for failure to file an Affidavit of Merit.  Morris appealed and argued that his cause of action for breach of contract does not require an Affidavit of Merit.  The Appellate Divison, however, affirmed the lower court's ruling.

Issue:  Is an Affidavit of Merit necessary in an action against an attorney for reimbursement of legal fees?

Ruling:  Yes.  The Appellate Division explained that an Affidavit of Merit is necessary because:

[T]he underlying allegations require proof of a deviation from a professional standard of care.  In order to establish that defendants charged him an unreasonable fee, plaintiff requires expert testimony.

Notably, Morris, a Pro Se Plaintiff, supplied the Court with a letter opinion from an attorney to the effect that the brief filed on the direct appeal should not have taken more than ten to fifteen hours to prepare, and that Brickfield & Donahue should have raised an ineffective assistance of counsel issue on direct appeal, not as a part of post-conviction relief.  The Appellate Division, however, held that the letter did not satisfy the form or substance of the New Jersey Affidavit of Merit Statute, since it was not an Affidavit and did not contain an opinion to the effect that there was a "reasonable probability of professional negligence". 

Further, the Court refused to grant Morris' a 60 day extension to file the requisite Affidavit of Merit:

That extension...requires a showing of good cause...Self-representation is not the equivalent of good cause...Plaintiff's ignorance of the law, if that is what occurred here, is neither an excuse for the omission nor good cause for an extension of time in which to comply with the statute.

Lesson:  An Affidavit of Merit is necessary even where Plaintiff seeks only reimbursement of legal fees under a breach of contract theory.  A Pro Se Plaintiff's ignorance of the law will not lead to an extension of the time within which the Affidavit of Merit must be supplied.

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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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