Malpractice in Disguise? Affidavit of Merit Requirement Tested

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As you are undoubtedly aware, Professional Liability Matters previously circulated this handy table addressing the various affidavit of merit requirements throughout the country. Generally, in jurisdictions that require it, an affidavit of merit is necessary in order to maintain a malpractice claim against specified professionals, often including attorneys. But what is a “malpractice claim”?  Suing a professional does not always equal malpractice.   For example, a claim for malicious use of process is based upon a different standard than negligence. So this raises the question, is an affidavit of merit still required?  In a case of first impression, a New Jersey Appeals Court recently ruled that it is not.

The case stems from a dispute over a liquor license renewal for a local bar.  A county resident spoke out against the application for renewal at a local council meeting, alleging that the bar served underage customers, bribed public officials and beat up patrons.   Following the meeting, the tavern retained a law firm to file a SLAPP (Strategic Lawsuit Against Public Participation) suit against the disgruntled resident.   The suit alleged defamation, commercial disparagement, trade libel, interference with business relations and civil conspiracy against the resident.

The resident responded by filing a SLAPP-back suit against the bar and its law firm alleging that they violated his civil rights and asserted a claim for malicious use of process.   The civil rights claim was eventually dismissed on other grounds.  The bar moved to dismiss the malicious use of process claim on the grounds that plaintiff did not provide an affidavit of merit.

On appeal the court stated “The issue before us is one of first impression as we are asked to determine if an affidavit of merit is required to support [plaintiff’s] malicious use of process claim against the attorneys who provided counsel to his adversary.”  The court found that because the complaint did not assert claims of negligence or malpractice but instead set forth a claim of intentional conduct and malice against the attorneys, that the statute requiring an affidavit of merit did not apply.  Despite the law firm’s claims that the case was really a malpractice suit in “disguise” the court rejected the argument and permitted the case to proceed without an affidavit of merit.

The case serves as a reminder of the importance of knowing when an affidavit of merit is required.  The difference can mean saving your client unnecessary costs for raising the defense when not warranted but can also potentially win the day when the defense has merit.