The New Jersey Appellate Division recently confirmed how important it is to comply with procedural court rules, especially when the Court has given guidance as to how to comply with them.  In Cuomo v. TSI Ridgewood, Docket No A-4898-17T4, Defendant’s attorneys failed to comply with the requirements of electronic filing, as well as the submission of a filing fee.

While Defendants claimed inadvertent error (their lawyer tried to pay the $200 fee by check) and substantial compliance, the Appellate Division affirmed the Trial Court’s refusal to accept the application, rendering Defendant’s counsel possibly subject to a six-figure malpractice claim.

The Appellate Division recently permitted a law firm to proceed with litigation against a former expert who had been poised to provide expert testimony on behalf of the law firm’s clients in a medical malpractice proceeding.  Prior to trial, the expert declined to participate, and the court denied the clients’ request for leave to seek another expert.  Thereafter, the action was dismissed.  Following the dismissal, the law firm filed an action against the expert on behalf of the clients, which was removed to federal court.  The expert sought to disqualify the law firm, who then withdrew as counsel in that litigation.

Subsequently, however, the law firm filed an action on its own behalf against the expert, claiming that the expert’s failure to participate at the trial of the medical malpractice action was, among other things, a breach of contract and negligence.  The law firm sought its own damages allegedly incurred as a result of the expert’s failure to participate.  The expert moved to dismiss the action, and that motion was granted in part and denied in part.  On a motion for leave to appeal, the Appellate Division considered the question of whether the law firm properly possessed a cause of action against the expert, and answered that question in the affirmative.  Specifically, the Appellate Division held: “[P]laintiffs were in large measure acting as the estate’s representative in their dealings with defendants, but that does not preclude either a derivative or independent right to relief if defendants’ negligence or breach of contract wrongly caused plaintiff[’]s injury beyond or different from the estate’s alleged injury.  The very nature of plaintiffs’ contingency fee arrangement with the estate reveals plaintiffs had a real stake in the outcome of the medical malpractice action because certain obligations incurred during the litigation would be solely borne by plaintiffs if no recovery was obtained and because a recovery in favor of the estate would also benefit plaintiffs.”  Joseph E. Collini, Esq. et al. v. National Medical Consultants, PC, et al., Docket No. A-2857-18T4 (App. Div. June 4, 2019) (emphasis added).  The court thus concluded that the trial court properly denied the motion to dismiss and negligence claims, although the court also concluded that the trial court should have stayed the action pending the disposition of the clients’ federal action against the expert, as the attorney’s claims were largely derivative of those of the clients.

The New Jersey Appellate Division recently said no.  The Client in that case hired Attorney 1 to pursue an employment claim under a contract of employment that contained an arbitration clause as well as a Delaware choice of law clause. Approximately three years later, Client fires Attorney 1 and hires Attorney 2.  Attorney 2 files an arbitration demand within one month of being retained.  Unfortunately, Delaware’s three year statute of limitations had already run, and the arbitrator dismissed the demand.  Client thereafter sued Attorney 1 for failing to file the arbitration demand within the three-year statute of limitations.  Attorney 1 then filed an action for contribution against Attorney 2 under the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-3. Attorney 1 claimed that Attorney 2 was the proximate cause of any injury to the Client because Attorney 2 failed to properly brief the statute of limitations arguments before the arbitrator.

The trial court granted Attorney 2’s motion to dismiss for failure to state a claim because Attorney 1’s acts of purported malpractice occurred before  Attorney 2’s purported acts of malpractice.  The Appellate Division agreed, finding that Attorney 1 and Attorney were not “joint tortfeasors” under applicable law.  In order to be jointly liable, the lawyers have to have caused a single injury to the client.  “[S]eparate acts of malpractice cannot constitute the joint liability required under the Joint Tortfeasors Contribution Law.” D’Elia v. Kelly Law, P.C., No. A-4301-17T2 at *9 (App. Div. May 30, 2019).  Because Attorney 1 was alleged to have committed different acts of malpractice (failing to file an arbitration) from Attorney 2 (failing to properly brief an issue), the Appellate Division ruled that the claim for contribution was properly dismissed.

A recent Appellate Division decision serves as a reminder to attorneys to ensure that they have received proper authorization from their clients to settle a matter.  In Jesus Gonzalez v. Electronic Integration Services, LLC t/a Panurgy OEM, Docket No. A-0251-18T3 (App. Div. May 30, 2019), the court considered an appeal of a trial court’s order enforcing a settlement made on the record.  Counsel – who had represented the defendant throughout the litigation – had appeared at a settlement conference without his client and ultimately placed a settlement on the record, which was later confirmed by the plaintiff.  However, the defendant later refused to sign the settlement agreement, claiming that counsel lacked authority to bind it to the settlement.  The trial court granted the plaintiff’s motion to enforce the agreement on the basis that counsel had apparent authority to bind the defendant, based on his representation of the defendant throughout the litigation.

The Appellate Division agreed, concluding that “[g]iven counsel’s continuous representation of [defendant] through the litigation, concluding with placing the settlement on the record after two consecutive days of settlement conferences, there was a clear demonstration to the judge and [plaintiff] that he had the authority to reach a settlement.”  This holding should remind attorneys that they should ensure that they have unequivocal authority to settle a matter on behalf of their clients, to avoid any potential of a later malpractice claim.