This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.

Entire Controversy Doctrine Applies to Attorneys as Plaintiffs, Says NJSBA

The New Jersey State Bar Association urged the Supreme Court to affirm the decision of the Appellate Division barring an action for legal malpractice based on the entire controversy doctrine. “

Attorneys who comply with the rules should be afforded the same protections as all other litigants who seek payment for monies owed utilizing the court system,” said the NJSBA in its amicus curiae submission in the matter of Dimitrakopoulous, et al. v. Borrus, et al., Docket No. 080357. The brief was written by NJSBA member Peter J. Gallagher, of Porzio, Bromberg & Newman, and Trustee Diana C. Manning, of Bressler Amery Ross.

The heart of the matter is a collection dispute between the parties for representation in a prior business litigation. The attorneys were relieved from that litigation by the plaintiff once the matter went into binding arbitration. The attorneys then pursued the plaintiff for fees related to their work on the business litigation and ultimately won a default judgment. The plaintiff alleged malpractice against the attorneys in the business litigation, but three years after the attorneys undertook efforts to collect the judgment.

Evangelos and Matilde Dimitrakopoulous argued in the Appellate Division that Borrus Goldin Foley Vignuolo Hyman & Stahl PC committed malpractice in the underlying action and was, therefore, not entitled to fees. Borrus argued that Dimitrakopoulous was barred from raising the issue by the entire controversy doctrine and the doctrine of waiver because they should have raised these claims as a defense or counterclaim in the collection action. The Appellate Division opined that when the business litigation concluded, or within a reasonable time after, the plaintiffs knew, or should have known, that their alleged damages were attributable to Borrus's professional negligence. Under the entire controversy doctrine, they were required to plead this as a counterclaim or defense in the collection matter.

In the appeal, the plaintiffs allege that when the collection matter was filed, the business litigation was still pending and, therefore, the plaintiffs did not have a full and fair opportunity to establish damages until the arbitration proceeding concluded. They further argue that the doctrine does not bar legal malpractice claims.

The association argues the plaintiffs' reliance on Olds v. Donnely, 150 N.J. 424 (1997), for the premise that the entire controversy doctrine does not require a client to bring a legal malpractice claim in the underlying action is inapplicable here “because plaintiff's lawsuit to recover its fees did not give rise to the malpractice claim.” The association points out that “the 'underlying case' contemplated by 'Olds' is the Plaintiffs' arbitration in which defendants represented them, not the fee claim.”

“The goals of the entire controversy doctrine are 'to promote judicial efficiency, assure fairness to all parties with a material interest in an action, and encourage the conclusive determination of a legal controversy,'” said the NJSBA.

The matter has not yet been scheduled for oral argument.

NJSBA Annual Meeting to Host Legislators, Key Administration Officials

This year's Annual Meeting and Convention welcomes a fresh perspective on a new administration, new policy initiatives and a new mindset in Trenton.

Attendees will hear from legislators on what's going on in Trenton at the “Inside Trenton” program, which will feature Senator Patrick Diegnan, Assemblyman Anthony M. Bucco, Assemblyman Louis Greenwald, Assemblyman John F. McKeon, and Assemblywoman Holly T. Schepisi. Senator Loretta Weinberg will discuss the new realities of the media in a post-Trump digital world in “You are What You Tweet.” Assemblywoman Joann Downey will address “Women in Politics and the Law.” Assemblyman Raj Mukherji will lend his expertise on “Cannabis in New Jersey: Laws, Legislation, Legal Practice and Economics.” Senator Bob Smith will discuss the new administration and changes anticipated at the New Jersey Department of Environmental Protection. Assemblyman Jon Bramnick will discuss “Why People or Jurors Don't Like You: Interpersonal Skills Inside and Outside of the Courtroom.” Former Governor Jim McGreevey will address the Prisoner Reentry Program. And Chief Counsel Matthew Platkin will discuss voter suppression and the status of civil rights in 2018.

If you haven't registered, there's still time. Go to www.njsba.com.