Where a plaintiff alleges substandard performance in a litigated matter, the client must demonstrate that he or she would have prevailed, or would have won materially more, in the "case within the case" but for the alleged substandard performance. Generally, the litigated matter complained of is over by way of a final judgment or settlement and relevant time frames for post-judgment proceedings have expired or such proceedings have concluded.
Plaintiff wife sued defendant attorney for malpractice alleging that he engaged in negotiations on her behalf and drafted contractual language detrimental to her interests. The wife hired the attorney before signing the property settlement agreement (PSA) reached in mediation. The attorney had expressly limited his services by letter. She sought compensatory, special, and consequential damages. The Superior Court granted summary judgment for the attorney, dismissing the complaint. On appeal, On appeal, the wife argued that the trial court ignored the report of the wife's legal expert and, in effect, permitted the attorney to assume the role of a "potted plant" in representing her, contrary to the general duty of a lawyer to act with reasonable knowledge, skill, and diligence. The appellate court held that, due to the limiting letter, the attorney did not breach a proved standard of care by performing no discovery or related investigatory services necessary to evaluate the merits of the mediated PSA.
May an attorney limit the scope of his representation of a matrimonial client in reviewing a mediated property settlement agreement (PSA)?
The attorney properly limited the scope of his representation of her under N.J. Ct. R. Prof. Conduct 1.2(c), to a review of the terms of the mediated agreement without going outside its four corners. No genuine issues of material fact raised a dispute relating to the wife's competence and knowledge to agree to the settlement. Further, the wife was unable to demonstrate that proximate cause existed between any malpractice on the attorney's part in the 1994 proceeding resulting in damages to her.