Since the decision in Saffer v. Willoughby, 143 N.J. 256 (1996), plaintiffs in legal malpractice actions have generally been able to recover their attorney fees in the underlying matter, where the attorney committed negligence, as well as their attorney fees in pursuing the malpractice action.

With the award of fees in suits against attorneys again the subject of judicial interest, judging from the recent case law in New Jersey, it is fair to ask whether the Saffer rule should be revisited. Innes v. Marzano-Lesnevich, 435 N.J. Super. 198 (App. Div. 2014), certif. granted, 220 N.J. 37 (2014); Cf. Kaye v. Rosefielde, 223 N.J. 218 (2015).

While many states permit a client to avoid paying a fee or recover fees paid to her attorney where the attorney has negligently represented the client, none except New Jersey permits the plaintiff to recover her fees in pursuing the malpractice action based on negligence. Restatement (3rd) of Law Governing Lawyers, 353, comt. f at 392-93; 3 Legal Malpractice §21:24 (2015 Ed.). Instead, these other courts follow the American rule that parties bear their own costs of litigation, including attorney fees, in legal malpractice cases. The reasons for the American rule have traditionally been: to promote equal access to justice, to avoid penalizing someone for defending or pursuing a lawsuit, and to avoid burdening courts with the difficulty of calculating the fees of a prevailing party. In re Estate of Vayda, 184 N.J. 115, 120 (2004). And, for the most part, our Supreme Court has recognized this rule has merit and has limited the exceptions to the rule. Id. at 120-23.