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Cherry Hill Legal Malpractice Lawyers discuss Affidavit of Merit Statute and Attorney Malpractice

First enacted in 1995 by the New Jersey Legislature, the Affidavit of Merit Statute (the “AOM Statute”) imposes a special requirement upon plaintiffs bringing lawsuits claiming malpractice or negligence by certain enumerated professionals. See N.J.S.A. 2A:53A-26 to -29. The New Jersey Supreme Court has explained that the basic objective of the AOM 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.” In re Hall by and Through Hall, 147 N.J. 379, 391 (1997). The AOM Statute’s “essential goal is to put to rest unmeritorious and frivolous malpractice lawsuits at an early stage of litigation while allowing worthy claims to proceed through discovery and, if warranted, to trial.” Knorr v. Smeal, 178 N.J. 169, 176 (2003) (citation omitted).

To satisfy these policy objectives, “a plaintiff must file an affidavit of merit within 120 days of the filing of the answer or face dismissal of the complaint with prejudice, absent some equitable justification.” Knorr, 178 N.J. at 176 (citation omitted). “The salutary benefit to both sides in eliminating a non-genuine malpractice claim early on [by requiring an affidavit of merit] is the conservation of resources. Plaintiffs and defendants should not be dragged through an expensive and burdensome discovery process … if the plaintiffs cannot produce an expert to support their claims.” Id. “In this way, the resources and time of the parties will not be wasted by the continuation of unnecessary litigation.” Id.

The AOM Statute applies to actions alleging attorney malpractice. See N.J.S.A. 2A:53A-26(c) (including “any person who is licensed as … an attorney admitted to practice law in New Jersey” among enumerated professionals). Thus, if a plaintiff alleging attorney malpractice fails to file an affidavit of merit as required under the AOM Statute, the court can dismiss the plaintiff’s case. See N.J.S.A. 2A:53A-29.

However, not all affidavits of merit are equal. The AOM Statute specifically provides that, in medical malpractice cases, the person executing the affidavit must “have particular expertise in the general area or specialty involved in the action.” N.J.S.A. 2A:53A-27. But the AOM Statute is silent as to other professionals, such as attorneys. Thus, the question in attorney malpractice cases can become: Does the attorney executing the affidavit need to “specialize” in the same area of law as the defendant attorney.

While there is a dearth of case law in this area, there are two unpublished trial court-level decisions dealing with this very issue. The first, Manger v. Veisblatt, Docket No. HNT-L-76-11, 2011 N.J. Super. Unpub. LEXIS 2639 (Law Div. Oct. 2011), a law firm sued its client for unpaid legal fees in a matrimonial case, and the client counterclaimed that the law firm committed legal malpractice in the matrimonial case. In support of her counterclaim, the client submitted an affidavit of merit from a civil trial attorney. The law firm sought to dismiss, arguing that a personal injury attorney did not have the requisite experience in matrimonial litigation, and therefore could not opine as to whether the law firm’s representation fell below acceptable professional standards. The trial court disagreed and found that the client’s allegations against the law firm involved general litigation, rather than issues specific to matrimonial law, to which the personal injury lawyer was familiar.

On the other hand, in Trenk, DiPasquale, Della Fera & Sodono, P.C. v. Industrial Urban Corp., Docket No. ESX-L-1657-15 (Law Div. Feb. 19, 2016), a law firm was retained to provide legal services to a construction company in connection with various lawsuits arising out of a complex loan transaction. The client became dissatisfied with the law firm and stopped paying legal fees. The law firm then filed suit for unpaid fees, and the client counterclaimed for legal malpractice. The gist of the counterclaims was that the law firm erred by advising the client that it qualified for reorganization under Chapter 11 of the Bankruptcy Code. In support of their counterclaims, the client submitted an affidavit executed by a commercial litigation attorney. The law firm objected, arguing the commercial litigator had no experience with the field of bankruptcy law. The trial court agreed, finding that the commercial litigation did not have the requisite familiarity with the Bankruptcy Code to opine as to whether the law firm’s advice fell below the acceptable professional standards.

In sum, while there is no published case law settling this issue, it is clear that trial courts will determine the adequacy of an affidavit of merit in the legal malpractice context on a case-by-case basis. “That determination will require an examination of whether the allegations in the complaint involve an area of overlap between the practices of the affiant and the defendant, or whether the allegations arise from the defendant’s deviation from accepted standards of care that apply to the particular specialty practiced by the defendant.” Id. (slip op. at 10).

If you have a potential legal malpractice involving an attorney licensed to practice law in New Jersey or Pennsylvania, contact the Cherry Hill legal malpractice lawyers at Folkman Law today. For a free case review call 856-354-9444.