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Authored - NJ Contract Law Update - Another Contract-Substitute Claim: Legal Malpractice
SEPTEMBER 25, 2013 | Windels Marx - Commercial Litigation

DiFalco v. Merlino, __ N.J.Super. ____, 2013 WL 3940983 (App.Div. August 1, 2013), is an example of a well-known contract-substitute claim: legal malpractice. In general (and without regard to the DiFalco facts in particular), an unsuccessful contract negotiation or venture can sometimes give rise to a legal malpractice claim for inter alia a deal 'gone bad' as to which counsel may not have timely sued.

DiFalco thus highlights the fact that there may be an alternative or simultaneous claim, arising out of the same contract matter, against both (1) the adverse contracting parties, and (2) counsel who purportedly did not protect the plaintiff's rights. The specific substantive and procedural facts in DiFalco are of less significance to the contract practioner than recognition of the issues that revolve around the "entire controversy doctrine"; which governs how many lawsuits can be filed (and when) against various parties, and with what level of disclosure required in the pleadings.

The moral of the story is that legal malpractice is among the contract-substitute claims a practitioner must consider, when consulted regarding a contract matter.

Contact & Legal Disclaimer

Clark Alpert is the author of Guide to New Jersey Contract Law, published by the New Jersey Institute for Continuing Legal Education, originally published in 2007 and updated in November 2011. His updates on New Jersey contract law are based in recent issues and practical methods for addressing similar situations in your practice or business. They are not intended to serve as legal advice. Clark welcomes your questions and comments.

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