Andrew Rubin, Esq.

Newark Litigation and Appeals Law Blog

Understanding Possible Changes to New Jersey Malpractice Law

It’s not your responsibility to know everything. That’s what professionals like dentists, CPAs and — of course — lawyers are for.

However, because of the need for these professionals it is important that the people working in these industries take care to do their jobs properly and ethically. If they do not meet that standard, they are then open to a malpractice lawsuit. New Jersey legislature is considering bill A-1982, which would make two important updates to the legal codes surrounding malpractice.

What should I do when my attorney doesn’t seem to know his job?

Question: My attorney has been representing me for about 6 months, and frankly, he doesn’t seem to know what he is doing. I am in the middle of trying to get divorced. My husband’s attorney is sending us inquiries about my income, bonuses, assets etc.

I’ve answered the questions as well as something called “admissions.” Not only has my attorney not sent them to the other side, he hasn’t bothered to ask for the same documents from my ex-husband. What should I do?

What happens when your attorney is missing in action?

Question: I hired my attorney over a year ago for my divorce. He filed the papers to begin the case, but has done nothing since that I am aware of. He hasn’t even served my ex with the papers. My ex could care less—he doesn’t have an attorney, is not paying child support and we rarely hear from him. I call my attorney’s office regularly and leave messages but I never hear back.

Answer: Your attorney owes you professional treatment and respect at a minimum. Under New Jersey Rules of Professional Conduct, he owes you communication in the following manner: A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

What do I need to prove negligence?

If you are considering a legal malpractice suit, the first thing to think about will probably be, "Which type of malpractice applies here?" There are several types of legal malpractice: breach of contract, breach of fiduciary duty and negligence. The first two may be simpler to prove - it's easy to see where a contract has not been fulfilled, or see a history of money spent to examine whether fiduciary duty has been upheld. Negligence, on the other hand, has a standard set of four points that you, as the plaintiff or injured party, must prove in order to be successful in your suit. 

My attorney told me he had a conflict of interest—now what?

Question: About 18 months ago, I was in a car accident. Immediately after the accident, I called an acquaintance who is a personal injury attorney. He took my case, but not much happened.

Finally, about 4 months ago, he called me into his office and told me that he could not represent me anymore because of a conflict of interest—it turns out the person who hit me is related to his assistant. What do I do now? Can he just quit like that?

What happens if my attorney misses a deadline?

I was the victim of an assault and the perpetrator was found guilty. I contacted a lawyer about pursuing monetary damages against the individual. The attorney determined that I had a valid legal claim and agreed to represent me.

Months passed and I heard very little from my attorney. When I called, I was informed that the case was moving ahead, but I have not been copied on any correspondence or been notified of any court hearings.

The duty of candor to the court and legal malpractice, P.3

We’ve been looking in recent posts at the duty of candor attorneys owe to the court, and the harm that can result from their failure to properly exercise their duties in this area. Last time, we mentioned several potential scenarios which could constitute an abuse of the duty of candor to the court. These scenarios involve harmful disclosures of information to the court or taking unnecessary or unreasonable remedial measures to correct the situation.

One scenario that could come up in this context is when the attorney discovers that evidence offered to the court is false and the attorney seeks to make disclosure to the court. If the disclosure is harmful to the client’s interests, this could potentially constitute an abuse of the duty of candor. 

The duty of candor to the court and legal malpractice, P.2

In our last post, we began looking at the duty of candor attorneys owe to the court, and how this duty can sometimes run counter to an attorney’s duty of confidentiality to the client and the attorney-client privilege. Confidentiality and privilege ordinarily are so ingrained in an attorney that the prospect of having an ethical obligation to inform the court of matters disclosed to the attorney in private is unnerving.

It is important to understand that, while attorneys do have a duty to be candid with the court and that this may, in some cases, require them to disclose information that harms the clients interests, attorneys must also act with due caution in doing so, otherwise they risk liability for legal malpractice. 

The duty of candor to the court and legal malpractice, P.1

At the heart of many legal malpractice claims is a lawyer’s violation of ethical duties as articulated in state rules of professional conduct. These duties include things like: handling a client’s case with competence and diligence; keeping clients updated about the status of their case; avoiding conflicts of interest; and handling client funds responsibly.

One of the fundamental duties an attorney has in any case is to zealously advocate for a client. This duty should prompt an attorney to vigorously pursue a client’s interests under the facts and circumstances of the case. There are limitations on this duty, though, because attorneys have duties not only to the client, but also to the court. An attorney’s duties to the court include the duty to be truthful with the court. 

Case highlights importance of navigating procedural barriers to legal malpractice litigation

Legal malpractice litigation can be an important avenue for holding a negligent attorney accountable for damages caused by poor representation. It is important, though, to work with experienced legal counsel to build a case that has legal merit and isn’t impeded by any procedural technicalities.

A good example of such a case is that of a broker-dealer for the financial services firm Investacorp Inc. When a client filed a claim against the firm with the agency that would become the Financial Industry Regulatory Authority (FINRA), the firm hired legal counsel to defend the company and the broker in arbitration proceedings. The broker later hired his own attorney when the firm decided to settle the case, though both ended up settling the claim. After settlement, the broker was fired and the firm filed regulatory forms reporting his contribution to the settlement with the client. 

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