How to sue your lawyer in New Jersey.

Legal malpractice in New Jersey falls under the 6-year period in N.J.S.A. 2A:14-1, which covers tortious injury to property rights and contract claims. The New Jersey Supreme Court confirmed that legal malpractice claims get the 6-year period in McGrogan v. Till, 167 N.J. 414 (2001). In New Jersey, the statute of limitations for legal malpractice is 6 years from the date the claim accrues.

When the claim accrues

New Jersey applies the discovery rule. Under Grunwald v. Bronkesh, 131 N.J. 483 (1993), the 6 years begin when the client suffers actual damage and discovers, or through reasonable diligence should discover, that the damage is attributable to the attorney's negligence. In Grunwald, the clock started at an adverse ruling the client heard in court, not when his appeal ended, and his suit was late. An appeal of the underlying case does not by itself pause the malpractice clock; the court's suggested course is to file and ask for a stay.

In Vastano v. Algeier, 178 N.J. 230 (2003), the court held a claim accrued when the clients got their file back, because the key facts were then reasonably discoverable. If you receive your client file, have it reviewed promptly.

Continuous representation and repose

We did not find a New Jersey Supreme Court decision adopting a general continuous representation tolling rule for lawyers, so do not count on one. New Jersey has no separate statute of repose for legal malpractice. Bills to cut the period for claims against professionals to 2 years have been introduced but, as of this writing, have not become law. Compare states on our deadline table.

New Jersey courts, applying the framework in Conklin v. Hannoch Weisman, 145 N.J. 395 (1996), and McGrogan, require four things: an attorney-client relationship creating a duty of care, a breach of that duty, proximate cause, and actual damages. For litigation mistakes, that usually means the case within a case: proving you would have done better in the original matter. See the case within a case, explained.

The Affidavit of Merit

New Jersey's Affidavit of Merit statute applies to lawyers. N.J.S.A. 2A:53A-26 defines a "licensed person" to include an attorney admitted to practice in New Jersey, and N.J.S.A. 2A:53A-27 requires the plaintiff, within 60 days after the defendant files an answer, to provide an affidavit from an appropriate licensed person that there is a reasonable probability the defendant's work fell outside acceptable professional standards. In a New Jersey legal malpractice case, the Affidavit of Merit is due within 60 days of the lawyer's answer, and the court may grant only one extension of no more than 60 days. This is New Jersey's version of a certificate of merit, and missing it can be fatal to the case.

Experts

In nearly every case, breach must be proven through a qualified attorney expert witness. See our expert witness guide.

In McKnight v. Office of the Public Defender (N.J. 2008), the New Jersey Supreme Court adopted the view that a former criminal defendant's malpractice claim does not accrue until the defendant receives relief in the form of exoneration. Exoneration can include vacating a guilty plea and dismissing the charges, entry of judgment on a lesser offense after substantial time in custody for a greater one, or any disposition more beneficial than the original judgment. In Rogers v. Cape May County Office of the Public Defender (N.J. 2011), the court held the claim accrued when the indictment was finally dismissed.

In New Jersey, a criminal defendant's malpractice claim against defense counsel does not accrue until exoneration, such as dismissal of the charges. Read more about criminal defense malpractice and suing a public defender.

New Jersey's courts run a Fee Arbitration Program through District Fee Arbitration Committees in each county. A client files the Fee Arbitration Request Form with the district fee secretary where the lawyer practices, with a $50 fee (waivers are available). Unlike most states, the lawyer must take part once the client files, and the decision is binding. The program does not take disputes over $100,000, fees set by a court, or matters more than 6 years after the services. Before a New Jersey lawyer can sue a client for fees, the lawyer must send a pre-action notice of the right to fee arbitration, and the client then has 30 days to file. See fee dispute arbitration.

If a lawyer stole your money, the New Jersey Lawyers' Fund for Client Protection may reimburse you. New Jersey's Lawyers' Fund for Client Protection can reimburse up to $400,000 per client, and up to $1.5 million total for all claims against one lawyer. It does not pay for bad advice, lost cases, bad investments, fee disputes, or malpractice, and it does not pay interest or consequential damages. See our client protection fund guide.

Ethics grievances in New Jersey are reviewed by the Supreme Court's Office of Attorney Ethics and 18 volunteer District Ethics Committees. You can file online through the courts' JEDS system or by mailing a signed grievance form to the Office of Attorney Ethics in Trenton. The courts say initial review takes about 45 days.

The ethics system will not take grievances tied to pending civil or criminal litigation until the case ends, and it sends fee disputes to fee arbitration. A New Jersey ethics grievance can lead to discipline, but it does not award damages and does not pause the 6-year malpractice clock. See malpractice versus a bar complaint.

Individual New Jersey lawyers are not required to carry malpractice insurance, but firms organized as professional corporations, LLCs, or LLPs must maintain lawyers' professional liability coverage under Court Rules 1:21-1A through 1:21-1C.

1. Date the damage and the discovery. Your 6 years likely started when you were harmed and could see the lawyer's fault, such as an adverse ruling.
2. Get and review your file quickly. See how to get your case file.
3. Plan for the Affidavit of Merit. A lawyer handling your claim will need an attorney expert lined up early.
4. Use the right forum: fee arbitration for bills, the Lawyers' Fund for theft, the ethics system for misconduct, and a lawsuit for losses caused by negligence.

If you think your lawyer's mistake cost you, a free case review takes about two minutes and can connect you with an independent attorney in New Jersey who handles legal malpractice claims.