A Law Division judge has held that an Affidavit of Merit in a legal malpractice suit does not need to be issued by an attorney who practices in the same area as the lawyer being sued. In Manger,HNT-L-76-11, plaintiff sued her former divorce attorney alleging that proper discovery was not conducted with regard to her husband’s finances and that counsel failed to obtain a proper valuation of his business. Manger’s malpractice attorney asked 11 family law attorneys to issue an Affidavit of Merit in this case. These attorneys declined that request. Manger then obtained an Affidavit of Merit from an attorney whose practice did not include family law. That attorney found that Magner’s former attorney’s representation in the divorce matter “fell outside professional or occupational standards or treatment practices.”
Counsel for the former divorce attorney moved to strike the Affidavit of Merit and dismiss the suit due to the fact that the attorney issuing the Affidavit of Merit lacked experience in family law to issue such an opinion. Manger argued that a good-faith effort was made to obtain an Affidavit of Merit from a family law attorney. Further, Magner argued that the issuing attorney was a certified civil trial attorney which permitted him to opine on the former attorney”s representation as the allegations involved civil litigation (e.g. discovery issues and business evaluation).
The Court noted that in malpractice cases, other than involving medical providers, the individual issuing the affidavit “must have particular expertise in the general area or specialty involved in the action.” In this case, the Court found that while the attorney issuing the Affidavit of Merit was not a family law attorney, his experience in litigation can form the basis of his opinion. Accordingly, Magner’s former attorney’s motion was denied.