New Jersey Appellate Court Overrules Dismissal of Legal Malpractice Case

A New Jersey appellate court has reversed an order, dismissing a legal malpractice action. In Swain v. Alterman, clients sued their former attorney for negligently representing them in a personal injury action.
The attorney never filed a complaint, thereby allowing the statute of limitations to expire.

The clients then sued the attorney for legal malpractice. The attorney responded, claiming that he had forwarded a letter to the clients terminating his representation before the statute of limitations had expired. The clients of course claimed that they never received the letter.

In New Jersey, a plaintiff in a legal malpractice action normally must submit an affidavit of a legal expert alleging that the attorney’s conduct fell below the standard of care. An affidavit is not required, however, if the breach can be proved without expert testimony. The clients had not filed an affidavit, believing that the failure to timely file the action fell within this exception. The trial court allowed the attorney’s motion to dismiss and the clients appealed.

The attorney took the position that the exception did not apply because there was no attorney-client relationship following his termination letter, and therefore expert testimony was required. The appellate court disagreed, finding that the failure to file within the statute of limitations could be decided without expert testimony. The court also reasoned that the complaint sufficiently alleged the existence of an attorney-client relationship, and that any discrepancy was for the fact-finder to determine. The case was remanded for further proceedings.

Decision: Swain v. Alterman


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