Andrew Rubin, Esq.

Newark Litigation and Appeals Law Blog

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. 

The duties of competence, diligence and legal malpractice liability, P.2


Last time, we briefly looked at the duty of competence which attorneys owe to their clients, which obligates attorneys to avoid neglecting or grossly mishandling a client’s case. As we noted last time, there are a variety of ways the duty of competence can be violated. It doesn’t necessarily mean that attorneys have to have all the answers, but that they need to do what it takes to ensure the case is handled competently, whether on their own or by working with more experienced attorneys.

The duties of competence, diligence and legal malpractice liability

Attorneys play a critical role in the administration of justice in society, acting as gatekeepers to the legal system and ensuring the rights of their clients are protected and their interests advocated. While each attorney has his or her own unique background, characteristics, approach, strengths and weaknesses, clients should expect that their attorney will meet a minimum standard of care in handling their case.

Under the New Jersey Disciplinary Rules of Professional Conduct, two particularly important rules relating to a lawyer’s handling of a case are those relating to the duty of competence and the duty of diligence. Under these rules, attorneys are prohibited from handling or neglecting a case in a grossly negligent manner or from falling into a pattern of negligence or neglect in handling a case, and are required to act with “reasonable diligence and promptness” in representing a client. 

Establishing the proper standard of care in legal malpractice cases an important task, P.2

We previously began looking at a legal malpractice case in which a woman sued her lawyer for failing to take timely action in handling her divorce case, and whose legal malpractice claim was later dismissed because she failed to establish standard of care in the case, how the attorney breached that standard, and how the attorney’s conduct caused her harm.

An important takeaway from the case is that it those pursuing legal malpractice actions need to have a clear understanding and make a strong case for each and every element of a legal malpractice claim. Although it may seem obvious to a legal malpractice plaintiff how an attorney has failed, it cannot be taken for granted in the courtroom. 

Establishing the proper standard of care in legal malpractice cases an important task, P.1

Legal malpractice can be complex, not only because factual scenarios in legal representation can be complicated, but also because it isn’t always clear at the outset to what standard of care the accused attorney should be held.

In any legal malpractice case, plaintiffs have to be able to provide reliable, relevant evidence that there was an attorney-client relationship, that the attorney was bound by a duty of care but breached that duty, and that this caused harm to the plaintiff. Clearly establishing the proper standard of care, and distinguishing it from the actions taken by the accused attorney, is critical in these cases. 

Filing a complaint against a negligent attorney in NJ

When an attorney fails to fulfill his or her legal duties toward a client, legal malpractice litigation can ban an effective way to obtain compensation or relief from the consequences of the attorney’s substandard representation. Those who believe they may have suffered loss because of poor legal advocacy work should consult an experienced attorney to have their case evaluated and to determine their options for seeking relief.

Another avenue for holding a negligent attorney accountable is to file a complaint with the secretary of the district ethics committee for the district where the attorney has his or her primary law office. There are 17 district ethics committees throughout the state, and any member of the public may call a hotline to be transferred to their district committee to file a complaint about an attorney. Complaints that meet certain requirements are referred to the Supreme Court. 

Teresa Giudice legal malpractice claim allowed to move forward

Back in December, we wrote about a legal malpractice case filed by Teresa Giudice of Real Housewives of New Jersey fame. As we noted then, Giudice filed the malpractice case against her first bankruptcy attorney claiming that the outcome of her bankruptcy fraud case was the result of her attorney’s mishandling of the case.

Giudice spent almost a year in prison, though she was sentenced to 15 months, having been released early. Her husband Joe is currently serving a 41-month sentence in prison in connection, also for bankruptcy fraud. Giudice’s legal malpractice case was dismissed last year “without prejudice,” on the grounds that the Giudice’s bankruptcy case was still active. The judge apparently wanted to wait for the outcome of the bankruptcy case, so the case was dismissed without any affect on Giudice’s ability to proceed with the suit later on. 

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