In an interesting twist, the Appellate Division has decided that in legal malpractice cases, the person authoring the Affidavit of Merit, stating that the defendant attorney and/or firm has violated the standard of care, does not need to be certified, even if the attorney named is certified. What is most interesting about this decision is how different it is from medical malpractice decisions, which require that the author of the Affidavit of Merit have the same or similar qualifications, including board certifications and/or additional qualifications. In the particular matter, Davis v. Ellis, a certified matrimonial attorney had sued her former client for unpaid legal fees owed to her. The former client counterclaimed (asserted a claim against the attorney) alleging legal malpractice, and submitted an Affidavit of Merit from a general practitioner, rather than a certified matrimonial attorney. The trial court judge found this inadequate and dismissed the litigation. The Appellate Division disagreed, and found that even if the attorney involved is certified, the author of the Affidavit of Merit does not also have to be so certified, but instead will qualify if they have practiced for 5 years and have devoted a majority of their practice to the particular area or specialty involved.
The purpose of the Affidavit of Merit has been to require the Plaintiff to make an initial showing of merit to the claim, by having a person with the same or similar qualifications render an opinion. Failure to provide one within 120 days of the filed Answer (originally 60, and the Plaintiff may request a single 60 day extension) will in most cases, result in the case being dismissed. If you feel as though you have suffered damages as a result of the treatment by a doctor, or handling of a legal matter by an attorney, feel free to contact the Law Office of Drinkwater & Goldstein, LLP for a free initial consultation.