Ziegelheim v. Apollo, 607 A.2d 1298, 128 N.J. 250 (N.J. 1992)
NJ Underlying Divorce Action Settlement
Student Contributor: John Anzalone
Facts: Plaintiff discussed her concern with Defendant Attorney that her husband was concealing substantial assets and asked Attorney to make a thorough inquiry into her husband’s assets that attorney failed to undertake before negotiating the property settlement agreement. This resulted in the marital estate being undervalued. Plaintiff received 14 percent of the estate’s value in the settlement. Plaintiff signed the agreement after Attorney advised that she would receive no more than 10-20 percent of the estate’s value at trial. Plaintiff later filed a malpractice suit against Attorney and a suit to get the settlement set-aside that was rejected.
Issue: Did the lower court err in holding that there was only one factual dispute that Attorney had committed malpractice and that Plaintiff’s claims were estopped because the settlement was deemed fair?
Ruling: In partially reversing the lower court, the New Jersey Supreme Court held Plaintiff’s malpractice case could go forward, based on the following considerations:
1) A dissatisfied litigant does not have to prove that their attorney committed fraud in the settlement before they can sue the attorney for malpractice in settlement negotiations.
2) Litigants rely on attorney’s advice on whether to accept settlements and the law insists that their recommendation be made with the skill, diligence, and knowledge of a reasonably competent attorney. Attorneys are expected to know the reasonable probability of their case’s success and the range of potential outcomes. A lawyer must exercise reasonable care in negotiating a settlement for a client, just as he must exercise such care in all other aspects of the representation.
3) The doctrine of estoppel should not be applied here because the fact the court hearing on setting aside the settlement called the award "fair and equitable" does not mean that Plaintiff could not have secured a better award had Attorney not been negligent.
4) The prior ruling also did not touch on whether or not Plaintiff’s husband hid assets. Consequently, the ruling does not bar a claim that Attorney negligently failed to discover hidden marital assets.
5) Given the evidence, Plaintiff’s further claims that Attorney negligently failed to put agreed upon terms into writing and delayed in making the final settlement resulting in financial losses, should not have been disposed of with summary judgment.
Lesson: Rulings regarding the fairness of a settlement do not preclude suits against attorneys for malpractice in reaching that settlement. To avoid malpractice claims in settlement situations attorneys should explain the settlements as written to the consenting parties and their legitimate basis for believing that the client should accept the proposed agreement.
Editor’s Note: This case highlights the "settle and sue" syndrome in legal malpractice actions. At this posting, the NJ Supreme Court has heard oral argument in Guido v. Duane Morris, LLP and is taking a fresh look at the issue. Stand by for a decision in the near future.