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Disagreement or Deviation?

What constitutes legal malpractice? While this seems like a simple question, it is not always simple to define. This is especially true when a client requests one action, but an attorney does not follow such a request. At what point does a disagreement between a client and attorney grow into a legally actionable wrong. McLaughlin v. Manos, A-2638-09T1, 2011 WL 4345814 ( N.J. Super. App. Div. 2011) is a case which acts as a limitation upon legal malpractice.

The lawsuit had roots in an action where Anna Manos was sued by her neighbors based on a property dispute. Initially, Manos retained a different law firm than that of McLaughlin. Shortly after retaining the first lawyer, Manos lost an initial court battle, and thus terminated the first relationship in order to hire the law firm Schepisi and McLaughlin.

Schepisi prepared for trial quite extensively leading up to the November, 2008 date. However, on the day of trial, the presiding Judge conducted a settlement conference. During the conference, the parties agreed on the terms of a proposed settlement. On the record, Schepisi asked Manos, if she accepted the settlement, at which point Manos responded affirmatively. The trial was then dismissed due to the settlement, and 2 days later, Schepisi sent Manos a questionnaire concerning the representation and settlement.

Schepisi later sent a bill for services to Manos, which she never responded to. Finally, Schepisi filed an action against Manos for payment of outstanding legal fees. Manos counterclaimed against Schepisi for legal malpractice based on her view of how Schepisi should have proceeded or on the fact that Schepisi did not always follow her directions. Along with the counterclaim, Manos filed the requisite expert opinion, stating that an attorney believed legal malpractice had been committed on the part of Schepisi.

Manos alleged that Schepisi should not have to pay for negligent legal representation, which the court interpreted as a legal malpractice case. They did not, however, rule that legal malpractice was committed. The elements of a legal malpractice action are the existence of an attorney-client relationship creating a duty of care by the defendant attorney, the breach of that duty by the defendant, and proximate causation of the damages claimed by the plaintiff. The court put it succinctly, in stating, that a claimant must establish the standard of conduct and then a deviation form that standard. To do this effectively requires expert testimony establishing the standard of care against which the defendant attorney's actions must be measured.

The court then concluded that based on this standard, Manos did not prove her case. She established the relationship, and the duty, but no deviation from the duty. The court did not believe that an attorney not following client directions reaches the level of actionable legal malpractice. The two biggest problems with the allegations were that an attorney is not required to follow a non-lawyer's legal strategy plan, and Manos was not harmed in the action. In reaching this conclusion, the court also dropped in a note that following a client's directions could be malpractice if it deviates from the accepted standard. It is interesting that the court gives an extreme amount of deference to an attorney's choices, even when measured against client demands.

Manos also attempted to argue that she did not agree to the settlement on the record, and that direct examination on the record of each clause of settlement did not comport with New Jersey law. The problem with advancing these arguments so late were mainly that in doing so; (1) Manos was prejudicing the rights of the other settling party; and (2) she was trying to use the malpractice suit to vacate the settlement, which is not allowed. She had also waited past the time when appeals are allowed.

This case is not important for its legal analysis but rather for the deference accorded to lawyers by Judges and the lack of control clients actually have. While this case is fairly straight forward in showing alleged facts, one must wonder if the situation changes when an attorney advises a client to settle. It seems there was little dispute on the record, but when does a disagreement concerning strategy breach duty of care for standards. As the Judges made clear, disagreements do not deviate from standards of care. Additionally, even if there is a deviation there still must be prejudice. Once again, the court shows how difficult legal malpractice is for clients to prove.

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