CSG Law Alert: Can a Legal Malpractice Defendant Seek Contribution from the Lawyer that Subsequently Took Over the Case?

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.

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