Professional Liabilty

Appearance and Results Versus Merits

, The Legal Intelligencer


As attorneys, we have access to the entirety of the third branch of government — the judiciary. Our clients' problems turn on our attendant time for which we are compensated. Whether by filing or defending a lawsuit, drafting a document or counseling a prospective business deal, any slight deviation can have grave impact on our clients' emotional, financial, personal and even liberty concerns. Every day our reputations, integrity, finances and schedules can vary wildly — with even minor missteps having the potential to become liabilities.

When jurists are first appointed or elected, they are taught there is no such thing as a small case — every case is important to the litigants. Judges more than lawyers have the power to change lives.

Our profession is a serious one. It is stressful, demanding, exacting and unyielding.

With all this consequence at stake, attorneys work under tremendous pressure, often for disproportionate reward. It is no wonder our profession suffers from the highest rates of suicide, substance abuse, divorce and general unhappiness.

All of the above being a daily concern, isn't it time we cut ourselves (and each other) some slack? After all, not every error is dispositive. Contrary to what we may have been taught, not every case is truly of equal importance (a routine sprain-and-strain car accident doesn't compare to a U.S. Supreme Court opinion on a set of circumstances that would be hard to intentionally replicate, for example).

Not every client miscommunication is an ethical violation. Not every missed opportunity is cause for alarm. Not every judge is perfect. Not every trial is life or death (even in those rare capital trials, the facts are often the unalterable facts). Our clients do need to take personal responsibility for their own decisions. We are immune from our judgment calls.

Said differently, not every spelling mistake matters.

In Moran v. Constantine, plaintiffs Jennifer and Kiara Moran were involved in a New Jersey auto accident on August 14, 2009. The police report named the striking vehicle's driver as Nicholas Constantine, and the owner as ClearTone Communications Inc.

Almost two years thereafter, counsel for the plaintiffs mistakenly dropped the "t"; instead, the defendant was ClearOne Communications Inc.

ClearTone is a company in Staten Island, N.Y. ClearOne is a company based in Utah.

ClearOne's Utah counsel contacted the plaintiffs' counsel to immediately advise of the error by telephone. The same day, that Utah attorney wrote asking that ClearOne be voluntarily dismissed, threatening sanctions if dismissal was not effectuated by November 8, 2011.

On November 8, ClearOne retained New Jersey counsel, who spoke to the plaintiffs' counsel. The plaintiffs' counsel agreed that it was likely ClearOne was denominated in error, but requested more time to investigate.

On November 14, 2011, ClearOne filed motions for judgment and sanctions. ClearOne was awarded counsel fees of $15,107 and costs of $412 (totaling $15,520). The Superior Court (New Jersey's trial court) opined that the plaintiffs "had no rational argument for continuing to pursue this claim, and not entering a voluntary dismissal, for almost one month."

On appeal, the Appellate Division (New Jersey's intermediate court) held that "an honest attempt to pursue a perceived, though ill-founded, claim is not considered frivolous," and overturned the sanctions. In order for a claim to be frivolous, no rational argument can be advanced in its support, it is not supported by any credible evidence, no reasonable person could expect it to be successful, and it is "completely untenable."

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