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September 16, 2019

NJSBA to Supreme Court: Tort claims protections should extend to legal malpractice actions for all attorneys providing representation on behalf of the state

The New Jersey State Bar Association (NJSBA) urged the New Jersey Supreme Court to affirm an Appellate Division holding that individuals seeking to bring legal malpractice actions against attorneys employed by the state as public defenders to represent private clients must meet the procedural requirements of the Tort Claims Act. In its brief submitted  as amicus curiae in the matter of Chaparro v. Office of the Public Defender, Docket No. A-4475-17T4, the NJSBA urged the Supreme Court to extend the holding to include pool attorneys, attorneys assigned through the so-called Madden List and any attorney engaged by the government, for pay or pro bono, to provide constitutionally-mandated representation. NJSBA member George Conk authored the NJSBA’s brief.

“The scope of liability for breaches of professional duty like other tortious acts committed within the scope and course of professional employment may be substantial, as may the cost of defense,” the NJSBA brief said. “It is therefore noteworthy that state employees are guaranteed defense and indemnification for tort claims for the harmful consequences proximately caused by tortious acts or omissions within the scope of their State employment.”

The matter stems from an alleged legal malpractice claim and claim of a breach of the New Jersey Rules of Professional Conduct filed against the Office of the Public Defender and a public defender. ­Chapparo was incarcerated for 12 years on charges, including first-degree aggravated sexual assault, for which he served 12 years in prison. He was eventually released and the charges dismissed. The Appellate Division overturned the law division’s ruling, finding that OPD is a public entity and public defenders are public employees that come within the Tort Claims Act’s immunities and defenses. The Appellate Division concluded that Chaparro had not met the procedural requirements of the Tort Claims Act.

Chapparo says that the Tort Claims Act does not immunize defendants from legal malpractice actions. While Chapparo prevailed in his action under the Mistaken Imprisonment Act, for which he was awarded $608,333.33, he argued that litigation is irrelevant to his claim of legal malpractice. He contends that he would not have been convicted or incarcerated had he received adequate representation from his attorney.

The matter has not yet been scheduled for oral argument.

Duty to honor client’s wishes should not obligate attorneys to investigate competing claims for client’s funds

A lawyer’s duty to investigate the source of funds wired into a trust account was the focus of oral argument heard by the state Supreme Court last week in the matter of Meisels v. Fox Rothschild, where the NJSBA participated as amicus curiae. Arguing that the Rule of Professional Conduct 1.2 does not impose an obligation on an attorney beyond honoring a client’s wishes with respect to funds held for the client, NJSBA Trustee Diana Manning noted  that any other such reading would be  create an “undefined duty” to search out the existence of any competing claims and expose attorneys to malpractice claims for not following their wishes.

In Meisels, the law firm received $2.5 million in funds for its client from a nonparty company. Meisels alleged that the nonparty company wired the funds to be used as part of a real estate transaction to which Meisels was a party. Though Meisels admitted never having contacted Fox Rothschild or the attorney handling the matter, he alleged that Fox Rothschild disbursed the funds in accordance with its client. Five years later, Meisels and others affiliated with him sued Fox Rothschild, alleging multiple claims, including conversion and breach of fiduciary duty under RPC 1.15. The Appellate Division affirmed the trial court dismissing the breach of fiduciary duty claim, but ruled that Meisels could pursue a conversion claim based on the distribution of the $2.5 million at the client’s direction.

The Supreme Court reserved decision.

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