• A Claim For Legal Malpractice Accrues When An Attorney's Breach Of Professional Duty Proximately Causes A Plaintiff's Damages.
  • March 2, 2018
  • The plaintiffs appealed from an order dismissing their complaint against the defendant for legal malpractice based on the entire controversy doctrine. The Appellate Division held that the trial judge was correct that the plaintiffs had a full and fair opportunity to litigate the claim in the fee action, Obermayer Rebmann Maxwell & Hippel, LLP v. Brian Kleiman, et al., 2017 N.J. Super. Unpub. LEXIS 1229 (App. Div. May 19, 2017), but failed to do so. The trial judge concluded that the plaintiffs' legal malpractice claim should have been litigated in the fee action because the claim for fees and the claim for malpractice "could be most soundly and appropriately litigated and disposed of in a single comprehensive adjudication." The Appellate Division held that the plaintiffs were aware of their malpractice claim against the defendant following the suppression of their Answer in a prior fee suit and knew that the prior ruling had caused them to suffer damages. The Appellate Division held that the plaintiffs' malpractice suit was barred because of their awareness of their claim and their ability to have taken the steps to assert their malpractice claim before the trial date.

    This opinion notes the general rule that a claim for malpractice accrues when an attorney's breach of professional duty proximately causes damages. If a litigant was aware of the alleged malpractice committed and had a full and fair opportunity to assert a claim for malpractice in a prior lawsuit, but failed to do so, that claim is barred by the Entire Controversy Doctrine.