NJ: Underlying legal malpractice action
FACTS: Attorney Blum was sued by a former client in an underlying legal malpractice action, which was dismissed on summary judgment eventhough plaintiff had a legal malpractice expert report. Blum was represented by the Reilly Supple law firm, which now sues him for unpaid legal fees. Apparently seeking contribution from another source to help pay those outstanding legal fees in his successful defense, Blum filed a third party complaint alleging legal malpractice against the plaintiff’s legal malpractice expert in the unsuccessful underlying malpractice case– Michael P. Ambrosio, a law professor, who had issued the report which could not pass the muster of the summary judgment motion.
ISSUE: 1) Does the successful defendant in a legal malpractice case have a right to sue the opposing expert for legal malpractice where the opinions expressed by the expert were rejected by the Court?
1. Under NJ law, for a non-client to sue a lawyer, even when that lawyer is on the opposing side, there must be "an invitation to rely and reliance, [which] are the linchpins of attorney liability to third parties." Petrillo v. Bachenberg, 139 N.J.472, 483-4 (1995); Banco Popular, N.A. v. Gandi, 184 N.J. 161,181 (2005).
"Far from relying on Ambrosio, Blum successfully opposed Ambrosio’s opinion in the underlying malpractice case."
2. In NJ, the expert witness is protected by the absolute litigation privilege and cannot be sued for the opinions expressed in his expert report.
The court based its decision on Hawkins v. Harris, 141 N.J. 207 (1995), which adopted California’s formulation of the litigation privilege, where "the undelrying principles are substantially the same as those underlying the New Jersey privilege":
The absolute privilege applies to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Id. at 369. Whether a defendant is entitled to the privilege is a question of law.
LESSON: The absolute privilege now applies to the expert witness in legal malpractice cases. Although there are a few cases in other states that appear to offer a different view, the Court pointed out that there are controls that justify granting the expert witness the absolute privilege which are germane to the legal malpractice expert. Here’s what the Hawkins decision also said:
Because of their extraordinary scope, absolute privileges "have been limited to situations in which authorities have the power both to discipline persons whose statements exceed the bounds of permissible conduct and to strike such statements from… the record." … The absolute privilege "does not extend to statements made in situations for which there are no safeguards against abuse." … ("[I]n strictly judicial proceedings the potential harm which may result from the absolute privilege is somewhat mitigated by the formal requirements such as notice and hearing, the comprehensive control exercised by the trial judge whose action is reviewable on appeal, and the availability of retarding influences such as false swearing and perjury prosecutions * * *.");
Editor’s Note: For examples of where the Court remedied the broad scope of the absolute privilege of a legal malpractice expert by striking the expert’s report or testimony as a "net opinion" see: Celucci v. Bronstein, 277 NJ Super 506 (1994) and Kaplan v. Skoloff & Wolfe, 339 N.J. Super. 97 (2001).