Appellate Court Gives Guidance for New Jersey Affidavit of
Merit in Legal Malpractice Claims

             In Davis v. Ellis, the Appellate Division of the New Jersey Superior Court provided guidance regarding affidavits of merits in cases against lawyers who are court certified specialists in a particular area.

             Attorney Davis is a court certified matrimony attorney who sued her former client for unpaid legal fees. The client filed a counterclaim asserting legal malpractice.   As required by New Jersey's affidavit of merit statute, N.J.S.A. 2A:53A-27, Ellis filed an affidavit of merit asserting there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The affiant was admitted to practice in New Jersey [for 14 years], served as corporation counsel to Jersey City and was engaged in private practice "as a sole general practitioner . . . currently involved in numerous active matters in litigation."

            At a case management conference, defendant Ellis was ordered to provide an affidavit of merit from a certified matrimonial attorney. After the deadline to file affidavit or merit expired, plaintiff Davis filed a motion to dismiss the counterclaim for legal malpractice for failure to file an affidavit of merit from an appropriate licensed professional.

            On appeal, Ellis conceded the affidavit of merit statute applied, but argued the trial court erred by requiring an affidavit from a certified matrimonial attorney. The appellate court reviewed the affidavit statute which requires:

[T]he person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years.

N.J.S.A. 2A:53A-27.

            The appellate court found the requirement of an affidavit from a certified matrimonial attorney was in error. However, the appellate court found the affidavit submitted by defendant Ellis from the sole general practitioner did not meet the statutory requirements because he did not have expertise in matrimonial law due to his lack of practice in the field.

            This ruling is instructive on all legal malpractice claims as it is clear plaintiff's affiant must have experience in the same specialty as the defendant lawyer. If the affiant lacks experience in the area of practice, a motion to dismiss for failure to comply with the affidavit of merit statute is appropriate.