Procanik v. Cillo
502 A.2d 94, 206 N.J. Super. 270 (1985)
Rule of Law:
A legal specialist has a pre-termination duty to provide a complete and informed judgment to clients, including an opinion that settled law is ripe for reconsideration, and if this duty is breached, a limited post-termination fiduciary duty to disclose subsequent, relevant changes in the law may continue.
Facts:
- On June 8, 1976, Rosemarie Procanik (Procanik) began receiving medical care from board-certified obstetricians and gynecologists, Dr. Joseph P. Cillo, Dr. Herbert Langer, and Dr. Ernest P. Greenberg.
- On June 9, 1977, during her pregnancy, Procanik reported to Dr. Cillo that she had recently been diagnosed with measles but did not know if it was rubella (German measles).
- Dr. Cillo ordered Rubella Titer Tests, and despite results 'indicative of past infection of Rubella,' he allegedly negligently interpreted them, assuring Procanik she had nothing to worry about.
- Ignorant of an accurate diagnosis, Procanik continued her pregnancy and gave birth to her son, Peter Procanik, on December 26, 1977, who was later diagnosed with congenital rubella Down's syndrome on January 16, 1978.
- On April 26, 1978, Rosemarie and Michael Procanik consulted Harold Sherman, a general practitioner, regarding a possible medical malpractice claim against the defendant-physicians.
- Sherman consulted Lee S. Goldsmith and the Greenstone, Greenstone & Naishuler firm, who specialized in medical malpractice, for an expert opinion on the Procaniks' case.
- In January 1979, Goldsmith expressed to Greenstone his opinion that the Procanik case was an appropriate one to reverse the existing precedent, Gleitman v. Cosgrove, stating, 'I think the time is right, and I think we have a good shot at reversal.'
- On April 26, 1979, Goldsmith and Greenstone sent a letter to Sherman declining the case, stating that Gleitman prohibited the action, but that it was 'possible that Gleitman could be reversed,' and that 'The law is dead against us in the State and the reversal would be necessary.'
- Sherman met with the Procaniks, discussed Goldsmith's letter, and on May 2, 1979, sent them a letter terminating his services, advising them to consult another attorney immediately and informing them of the applicable statute of limitations for their claims.
- On June 26, 1979, the New Jersey Supreme Court decided Berman v. Allan, which recognized that parents could recover for emotional distress in 'wrongful birth' actions, and this decision was published in the New Jersey Law Journal and advance sheets shortly thereafter.
- Defendant-attorneys Greenstone and Goldsmith never advised the Procaniks of the Berman decision, and the two-year statute of limitations for the parents' claims expired on January 16, 1980.
Procedural Posture:
- Rosemarie and Michael Procanik, individually and as guardians for Peter Procanik, filed a complaint against Dr. Joseph P. Cillo, Dr. Herbert Langer, and Dr. Ernest P. Greenberg for medical malpractice, and against Harold A. Sherman, Lee S. Goldsmith, and Greenstone, Greenstone & Naishuler for legal malpractice.
- Defendant-physicians filed an answer asserting that the parents' claim was barred by a two-year statute of limitations.
- The trial court (Judge Coleman) dismissed the parents' medical malpractice claim, finding it time-barred because the plaintiffs knew of their potential claim in January 1978.
- The Appellate Division denied the defendant-physicians' cross-motion to strike and denied defendant-attorney Sherman's motion for a stay and to consolidate, implicitly rejecting Sherman's statute of limitations theory.
- The Supreme Court of New Jersey, in Procanik By Procanik v. Cillo, 97 N.J. 339 (1984), held that the parents' wrongful birth claim was independent from the child's and was barred by N.J.S.A. 2A:14-2.
- The New Jersey Supreme Court remanded the case for further proceedings, implicitly on the attorney malpractice claims, leading to cross-motions for summary judgment being filed by all parties in the Law Division.
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Issue:
Does an attorney, particularly a specialist, have a duty to disclose to clients not only the settled law but also a professional opinion that the settled law is ripe for reconsideration, and does this duty extend post-termination if the initial advice was incomplete, potentially preventing the fulfillment of the purpose of retention?
Opinions:
Majority - Boyle, J.S.C.
Yes, a legal specialist has a duty to disclose to clients a complete opinion, including their full informed judgment that settled law is ripe for reconsideration, and if this duty is breached such that the purpose of retention is not fulfilled, a post-termination duty to advise of subsequent relevant legal developments may arise. The court established an attorney-client relationship existed between the Procaniks and the specialist attorneys, Greenstone and Goldsmith, based on the Procaniks' reliance on their judgment and advice, even though there was no formal contract or fee arrangement. While the certification of Berman v. Allan in the New Jersey Law Journal did not, by itself, render the law unsettled, the specialists' pre-termination advice was incomplete. Goldsmith and Greenstone correctly stated the settled law (Gleitman v. Cosgrove), but failed to convey to the Procaniks, via Sherman, Goldsmith's internal opinion that Gleitman was ripe for reconsideration with 'a good shot at reversal.' This omission meant their counsel was not a 'complete informed judgment.' The court held that a specialist's duty includes not only the skill of a general practitioner but also a heightened awareness in their specialty, including a realistic probability that settled law is likely to be reconsidered, even without being clairvoyant. Because the specialists' opinion lacked full disclosure and was an incomplete conveyance of their true judgment, the purpose for which they were retained — to provide complete, informed advice — was not fulfilled. Therefore, a jury could find that the fiduciary relationship, limited to full disclosure, continued after the formal termination, imposing a post-termination duty to advise the clients of the favorable Berman decision when it was officially reported in the advance sheets. The general practitioner, Sherman, was found not negligent, as he met the standard of reasonable care by relying on the specialists' advice and advising his clients to seek other counsel and be mindful of the statute of limitations. Finally, the court applied the 'law of the case' doctrine, holding that previous rulings by higher courts had already definitively established that the parents' original medical malpractice claim was time-barred, and thus, this issue could not be re-litigated.
Analysis:
This case significantly expands the scope of an attorney's duty, particularly for specialists, by establishing an obligation to disclose not just the current state of the law but also a candid assessment of its potential for change. It clarifies that such an assessment constitutes a 'complete informed judgment' and its absence can render pre-termination advice negligent. Furthermore, the ruling suggests that a fiduciary duty may persist post-termination if the original advice was flawed due to incomplete disclosure, emphasizing the paramount importance of thorough communication and informed client decision-making. This could lead to increased liability for specialists and require more extensive client counseling regarding unsettled or evolving areas of law.
