Your lawyer missed a deadline, or gave advice that cost you the case, and now you are wondering whether you can do anything about it. Being unhappy with the result is not enough: to recover against an attorney, you must prove specific legal elements. In New Jersey, the elements of a legal malpractice cause of action are well settled: (1) an attorney-client relationship that creates a duty of care; (2) the attorney's breach of that duty; and (3) proximate causation of the damages the client claims. Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996). Courts often describe the claim as having a fourth, separate requirement -- actual, ascertainable damages -- because a breach that causes no measurable loss does not support a recovery. This article explains each element under New Jersey law.
A New Jersey Attorney's Duty of Care
The first element is duty. A lawyer's duty of care arises from the attorney-client relationship and from the standards that govern the profession. Several recognized obligations make up that duty:
- Existence of an attorney-client relationship. There is no duty -- and no malpractice claim -- without an attorney-client relationship (or, in limited circumstances, a relationship in which the attorney knows the client intends a third party to rely on the work). That relationship is the source of the duty the lawyer owes. Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996).
- Reasonable diligence and promptness. New Jersey Rule of Professional Conduct (RPC) 1.3 requires that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." Missing a deadline or letting a matter sit can breach this duty.
- Competence. RPC 1.1 prohibits a lawyer from handling a matter in a manner that constitutes gross negligence or from exhibiting a pattern of negligence or neglect. The Rules of Professional Conduct do not by themselves create a cause of action, but they help define the standard of care a New Jersey jury applies.
- Loyalty and the fiduciary relationship. An attorney is a fiduciary and must act in the client's interests, including avoiding conflicts of interest. RPC 1.7 and RPC 1.8 govern conflicts. New Jersey courts treat the attorney-client relationship as fiduciary in nature. Packard-Bamberger & Co. v. Collier, 167 N.J. 427 (2001).
- The standard of care. The benchmark is the degree of care, skill, and diligence ordinarily exercised by attorneys handling similar matters. The question is not whether the lawyer made the best possible decision in hindsight, but whether the lawyer's conduct fell below that professional standard.
Breach of Duty
The second element is breach. A breach occurs when the attorney's conduct falls below the standard of care -- the skill and diligence ordinarily exercised by attorneys in similar matters. Common examples include missing a filing deadline or the statute of limitations, giving incorrect legal advice, failing to investigate or advise on a material risk, or breaching client confidentiality.
In most New Jersey legal malpractice cases the plaintiff must present expert testimony to establish the standard of care and how the attorney departed from it, because a jury usually cannot evaluate an attorney's professional judgment without it. There is a narrow "common knowledge" exception when the breach is so obvious that a jury can recognize it from ordinary experience -- for example, an attorney who lets the statute of limitations run on a viable claim. Even then, expert proof is the safer course.
Causation
The third element is causation. The client must show that the attorney's negligence -- not some other factor -- caused the loss. New Jersey does not apply a rigid "but for" test in every case. Because a client's harm often results from several causes, our courts ask whether the attorney's negligence was a "substantial factor" in bringing about the injury. Conklin v. Hannoch Weisman, 145 N.J. 395 (1996); see also Gilbert v. Stewart, 247 N.J. 421 (2021). To be a substantial factor, the lawyer's error must have played a role that was both relevant and significant in producing the harm; it need not have been the sole or even the primary cause.
In many cases the client also proves causation through a "suit within a suit": the client must show that, but for the attorney's negligence, the underlying claim or defense would have succeeded, and to what extent. Gautam v. De Luca, 215 N.J. Super. 388 (App. Div. 1987). A plaintiff who cannot establish the value and viability of the lost underlying matter cannot recover.
Damages
The fourth element is damages. The client must prove an actual, ascertainable loss; speculative or uncertain harm is not enough. Legal malpractice damages in New Jersey are primarily economic. The usual measure is the amount the client would have recovered or retained but for the attorney's negligence -- for example, the value of the claim that was lost, or the money the client paid out as a result of the error. Gautam v. De Luca, 215 N.J. Super. 388 (App. Div. 1987).
New Jersey also allows certain consequential damages. A client who prevails in a malpractice action may recover the reasonable attorney's fees and litigation expenses incurred in prosecuting that action against the negligent attorney. Saffer v. Willoughby, 143 N.J. 256 (1996). Where an attorney has intentionally breached a fiduciary duty arising from the attorney-client relationship, counsel fees may likewise be recoverable. Packard-Bamberger & Co. v. Collier, 167 N.J. 427 (2001).
Punitive damages are not available for ordinary negligence. Under New Jersey's Punitive Damages Act, a plaintiff must prove by clear and convincing evidence that the harm resulted from actual malice or a wanton and willful disregard of others; gross negligence is not enough. N.J.S.A. 2A:15-5.12. As a result, punitive damages are rare in a malpractice claim grounded in negligence.
Proving the Claim: Burden of Proof and the Affidavit of Merit
The plaintiff bears the burden of proving each element by a preponderance of the evidence -- that is, that it is more likely than not that the attorney breached the standard of care and that the breach caused the client's damages.
New Jersey adds a procedural requirement at the outset. Because legal malpractice is a claim against a licensed professional, the plaintiff must serve an affidavit of merit. Within 60 days after the defendant files an answer (extendable to 120 days for good cause), the plaintiff must provide an affidavit from an appropriate licensed professional stating that there is a reasonable probability that the attorney's work fell outside acceptable professional standards. N.J.S.A. 2A:53A-27. Failure to serve a timely affidavit generally results in dismissal of the claim with prejudice, so this step cannot be overlooked.
The Role of Expert Witnesses
Expert testimony is central to most legal malpractice cases. A qualified attorney expert explains the applicable standard of care, describes how the defendant's conduct departed from it, and connects that departure to the client's loss. As noted above, expert proof is generally required to establish the standard of care, subject to the narrow "common knowledge" exception for breaches so obvious a jury can recognize them without expert help.
Common Defenses
Attorneys defending malpractice claims commonly argue that no attorney-client relationship or duty existed, that the conduct met the standard of care, that the alleged error did not cause the client's loss (for example, the underlying claim would have failed anyway), that the client suffered no actual damages, or that the claim is time-barred. New Jersey applies a six-year statute of limitations to legal malpractice claims. N.J.S.A. 2A:14-1. Under the discovery rule, the limitations period generally runs from when the client suffered actual damage and knew or reasonably should have known that the damage was attributable to the attorney's conduct. Grunwald v. Bronkesh, 131 N.J. 483 (1993). A plaintiff meets these defenses with evidence on each element -- typically including expert testimony -- and by proving the value of the underlying matter that was lost.
The elements of a legal malpractice claim page organizes duty, breach, causation, and damages into the proof each element requires.