Attorney's Advice to Nonclient Leads to Malpractice Claim

• Pages: 9-9
• Date: 01 January 2023
• Author: Anthony R. McClure
• Subject Matter: Civil Law

state supreme court has

held that where an attorney

urged his client’s ex-wife to

plead guilty to trac cita-

tions, a jury could f‌ind

that conf‌licted advice was a proximate

cause of her demotion and suspen-

sion. In so holding, the court applied

the “substantial factor” test for

proximate cause and held that if the

plainti had been properly advised,

she would have been “deterred”

from entering the guilty plea. ABA

Litigation Section leaders say this case

highlights the importance of under-

standing who the client is.

In Gilbert v. Stewart, the plainti’s

ex-husband kept the family car post-

divorce, although it was still titled in

the plainti’s name. The ex-husband

incurred several trac tickets, which

were mailed to the plainti’s home,

but “she never learned of them

because [the ex-husband] removed

all mail related to the trac tickets

from her mailbox.” The plainti, an

employee at the local probation oce,

was summoned to the New Jersey

municipal court.

After the initial hearing was

adjourned, the ex-husband’s attorney

“indicated to plainti that the opti-

mal resolution would be for her to

plead guilty to the charges because

[the ex-husband] was at greater risk

of license suspension due to his poor

driving record.” It is “undisputed that

[the attorney] failed to advise plainti

of the impact that a guilty plea might

have on her public employment.”

At the next hearing, the attorney

entered an appearance on behalf of

both the plainti and the ex-husband.

After the plainti entered a guilty

plea, the judge imposed f‌ines and

community service against the plain-

ti and dismissed all charges against

the ex-husband. Two months later,

the plainti retained dierent counsel

and challenged her conviction; ulti-

mately, “the disposition against her

Attorney’s Advice to Nonclient Leads

to Malpractice Claim

was vacated, and her f‌ines were repaid

to her.”

In the meantime, however, the

plainti’s employer opened an inves-

tigation, revealing that the plainti

was also a defendant in another mat-

ter and that her driver’s license was

previously suspended. The plainti

ultimately entered into a settlement

agreement with her employer, which

included a suspension without pay and

a demotion.

The plainti sued the attorney for

legal malpractice in the New Jersey

Superior Court, Law Division. The

attorney moved for summary judg-

ment, arguing that his conduct did not

proximately cause the plainti’s harm.

The trial court agreed, observing that

“the only evidence in this case about

why the demotion took place along

with its resulting def‌iciencies . . . is

that [plainti’s] employer . . . says that

it was her lack of candor in report-

ing the charge and it had nothing to

do with the fact that she pled guilty

to it.” The plainti appealed to the

New Jersey Superior Court, Appellate

Division, which armed.

On appeal, the Supreme Court

of New Jersey applied the “substan-

tial factor” test, which is “well-suited

for legal malpractice cases in which

inadequate or inaccurate legal advice

is alleged to be a concurrent cause

of harm.” Under this test, “[a]ctions

taken by the client in reliance on the

attorney’s counsel will not be found to

sever the causal connection between

the breach and the harm suered[.]”

The court held that “a jury could

reasonably conclude that the defen-

dant’s legal advice was a substantial

factor in [the plainti’s] demotion and

suspension[.]” Specif‌ically, the attor-

ney “should have known that there

would be employment consequences

for a Judiciary employee who enters

a guilty plea, even if he was unaware

what other infractions plainti had.”

Thus, “had plainti been properly

By Anthony R. McClu re, Litigation News E xecutive E ditor

advised by counsel, she would have

been deterred from the undertaking of

the guilty plea and, by logical exten-

sion, its consequences—the subse-

quent investigation, suspension, and

demotion.” The court reversed sum-

mary judgment and remanded to the

trial court for further proceedings.

According to Litigation Section

leaders, this case highlights an impor-

tant question over who the client is.

For instance, “if [the plainti] was not

a client, then [the attorney] had no

business providing legal advice to [the

plainti] and recommending that she

plead guilty,” states Neil J. Wertlieb,

Pacif‌ic Palisades, CA, member of the

Attorneys’ Liability Subcommittee of

the Section’s Professional Liability

Litigation Committee. “On the other

hand, if [the plainti] was his client,

then [the attorney] had certain obliga-

tions that apparently were not satis-

f‌ied here.”

“To me the most outrageous thing

is the way he made her his client,

and in a situation where (a) he failed

to get any kind of retainer agree-

ment, and (b) he had a conf‌lict,” com-

ments Ronald C. Minko, New York,

NY, immediate past cochair of the

Attorneys’ Liability Subcommittee.

According to Minko, this was unnec-

essary because “the lawyer failed

to slow down the process.” “Instead

of slowing it down, making sure the

wife understood what his role was,

and making sure he thought through

whether there was a conf‌lict, he

moved ahead rapidly in a case that

seemed small,” Minko explains.

WINTER 202 3 • VOL. 48 NO. 2

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ETHICS STRU GGLES IN THE LEGAL WOR LD

Published in Litigation News Volume 48, Number 2, Winter 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or

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