The New Jersey Supreme Court ruled against expanding the duty of care owed to a non-client, aligning its opinion with the New Jersey State Bar Association’s amicus brief arguing that such a duty should be narrowly construed. The Court adopted as a test the provisions of Section 51 of the Restatement (Third) of the Law Governing Lawyers to determine whether a duty of care exists between an attorney and a non-client. NJSBA Second Vice President Diana Manning argued the matter of Christakos v. Boyadjis, Docket No. A-42-24), before the Court and authored the brief along with Benjamin J. DiLorenzo and Kyle A. Valente.
“In formally adopting Section 51(2) and (3) to assess non-client claims against attorneys” the Supreme Court rejected arguments to apply other tests because of the difficulty to consistently apply the factors contained in those tests and because the tests “introduce unnecessary uncertainty into a lawyer’s obligations to non-clients.”
The matter emanates from a challenge by the niece and sister-in-law of the deceased siblings (two brothers) to wills drafted by an attorney who admitted to both misinterpreting the terms of the initial will and drafting wills that did not carry out the intent of the deceased brothers. The plaintiffs alleged that the attorney breached a duty of care owed to them as beneficiaries under the brothers’ wills. The trial court denied a summary judgment motion by the defendant-attorney, who argued he did not owe a duty of care to either plaintiff. The Appellate Division affirmed the summary judgment denial in connection with the plaintiff sister-in-law, but reversed the trial court and granted summary judgment dismissing the claims of the plaintiff niece. The dismissal was ultimately considered by the Supreme Court, which held that under Section 51 of the Restatement, there was no duty of care to the plaintiff niece because there was no reliance by the niece on the attorney’s legal opinion and because there was no clear and convincing evidence that the attorney knew the brothers intended their wills to benefit the niece.
The NJSBA argued that a duty is created when there is “both the invitation and actual reliance” on an attorney’s representations to a non-client. In its analysis, the Court focused on its goal “to make certain that an advocate will be able to faithfully, fully and zealously represent his or her client without fear of reprisal from others.” (citation omitted). The Court concluded that the grounds on which a plaintiff may pursue a malpractice claim against an attorney with whom there was no attorney-client relationship “are exceedingly narrow” to avoid creating “a weapon used to chill the entirely appropriate zealous advocacy on which our system of justice depends.”
In a statement following the decision, NJSBA President Christine A. Amalfe commended the Court for reaffirming long-standing limits on attorney duties to non-clients.
"Malpractice claims carry serious professional consequences while serving as a vital remedy for clients who have suffered harm. The Court’s unanimous decision appropriately preserves this balance, protecting attorneys from unwarranted exposure and ensuring meaningful access to justice."
New Child Custody Law Places Child Squarely In Center of High Conflict Custody Battles, Says NJSBA
In a last minute flurry of activity on his last day as governor, Phil Murphy signed into law S4510 (Lagana)/A5761 (Carter, which amends New Jersey’s child custody statute to allow children to request interviews with judges in custody matters and restricts the court’s ability to order therapy to mend relationships between parents and children.
More than a dozen multidisciplinary entities called upon the sponsors and the Governor to oppose the bill, including the Hispanic Bar Association of NJ, APALA-NJ, American Academy of Matrimonial Lawyers-NJ, Association of Family and Conciliation Courts-NJ and several county bar associations.
“Child custody matters are complex, and there are often times when reunification, and other therapy, is considered by the court to benefit the family and the children,” said the NJSBA in its remarks to the Assembly Appropriations Committee. “The NJSBA has a number of concerns with the newly amended S4510/A5761, which essentially eliminates access to not just reunification therapy, but any type of therapy – and places the child squarely in the middle of a high conflict custody dispute.”
The NJSBA provided amendments to an early version of the bill, which was approved by the Senate last June. The bill underwent further amendments in the Assembly to combine this bill with Kayden’s Law, which restricts reunification therapy where there exists domestic violence convictions. The ensuing expansion of the bill misaligned with the initial aim of the bill, said the NJSBA, expanding its reach to create unintended consequences not just regarding therapies for children in high conflict custody matters, but also in domestic violence matters.
In expanding the bill’s reach to domestic violence, the bill has the potential to cause significant harm to a victim because the bill invokes protections upon mere allegations of abuse and not convictions. Practitioners pointed out during testimony before the Assembly Appropriations Committee that domestic violence abusers often manipulate the system by alleging abuse by the victim, which – if enacted – could invoke this revised statute and cause the court to cut off contact between the child and the victim.
The bill was amended once again on the Assembly floor, but without NJSBA input. The NJSBA provided further amendments for consideration, which were not incorporated into the bill that awaits the Governor’s signature. However, further amendments were urged and not incorporated into the new law.
For a full copy of the law, click here. A CLE will is scheduled for March 5th on the new law and tips for practitioners. To sign up, go to njsba.com.