Sommers v. McKinney
670 A.2d 99, 287 N.J. Super. 1 (1996)
Rule of Law:
Expert testimony is not required to establish legal malpractice where an attorney's breach of basic professional duties, such as case preparation, client communication, or truthful representation, is within a layperson's common knowledge; additionally, a bank is liable for conversion if it negotiates a negotiable instrument payable to joint payees without all necessary endorsements.
Facts:
- Evelyn Sommers was appointed tax assessor of the Borough of Dumont for a four-year term in 1984.
- After her term expired in June 1988, Sommers continued to work, but disputes arose regarding her hours and rate of pay, leading her to commence a prerogative writ action against the Borough.
- Sommers' initial law firm recommended she accept a settlement offer from the Borough of Dumont that would acknowledge her tenured status and pay $19,375 in back pay.
- Sommers sought a second opinion from defendant Thomas A. McKinney, who advised her she was entitled to tenure as a matter of law and additional back pay, leading her to discharge her initial attorney and retain McKinney.
- Sommers paid McKinney a $3,500 retainer, claiming it was to be held in trust and drawn against only after she received and approved monthly itemized bills, but no bills were submitted.
- Approximately six months after retaining McKinney, Sommers settled her case against the Borough for $40,000, but in doing so, she surrendered her claim for tenure.
- Four days after the settlement was placed on the record, McKinney presented Sommers with a bill for services totaling $14,164, plus $2,544.30 for her former lawyer.
- On February 15, 1991, Sommers informed McKinney in writing that the bill was in dispute and directed him to contact her when the settlement funds were received.
- On February 21, 1991, McKinney received the settlement check, made payable to "E. Sommers and T.A. McKinney Attorney Trust Account," and deposited it with only his sole endorsement, which Citizens First National Bank of New Jersey accepted.
- McKinney withdrew his fee from the settlement funds and sent Sommers a check for $26,791.70.
Procedural Posture:
- Evelyn Sommers initiated a pro se complaint in the Law Division, asserting claims of legal malpractice and fraud against Thomas A. McKinney and his law partners (David Waldman and Michael O. Renda), and claims of negligence and fraud against Citizens First National Bank of New Jersey.
- The Law Division granted summary judgment to McKinney and his partners on the legal malpractice claim, concluding that Sommers failed to provide an expert report.
- Subsequently, the Law Division granted summary judgment to McKinney and his partners on the remaining counts which asserted intentional, unethical, criminal, and fraudulent conduct, characterizing them as 'a fee dispute and nothing more'.
- The Law Division also granted summary judgment in favor of Citizens First National Bank of New Jersey, finding Sommers failed to show the bank acted 'willfully, wantonly or intentionally ... to harm the plaintiff'.
- Evelyn Sommers, as plaintiff-appellant, appealed these dismissals to the Superior Court of New Jersey, Appellate Division.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
1. Does a plaintiff in a legal malpractice action always need expert testimony to establish a breach of the attorney's duty of care when the alleged misconduct involves basic professional obligations that are within the common knowledge of a layperson? 2. Is a bank liable for conversion when it accepts and deposits a settlement check made payable to joint payees, requiring both endorsements, with only one payee's endorsement?
Opinions:
Majority - Cuff, J.A.D.
No, a plaintiff in a legal malpractice action does not always need expert testimony when the alleged misconduct involves basic professional obligations that a layperson can understand. Yes, a bank is liable for conversion when it accepts a check made payable to joint payees without all necessary endorsements. The court reversed the summary judgments granted to McKinney and his partners. It affirmed that expert testimony is generally required in professional malpractice cases for matters 'so esoteric that the average juror could not form a valid judgment.' However, this requirement is waived when the duty of care is so basic that a layperson's common knowledge is sufficient to determine a breach, or when the court can determine the duty as a matter of law. The court found that Sommers' claims—that McKinney inadequately prepared her case, failed to cite legal authority for her tenure claim, misrepresented the strength of the Borough's defense to her back pay claim, and charged for work inadequately or never done—involved fundamental duties of an attorney and did not require expert opinion to establish a breach or proximate causation. These duties include careful investigation, legal strategy formulation, maintaining client communication, good faith and loyalty, preparing for trial, communicating all settlement offers, and providing accurate case assessments. While a violation of professional conduct rules does not automatically create a tort cause of action, it can be considered evidence of malpractice. Regarding Citizens First National Bank, the court reversed summary judgment on the negligence claim (count 15) but affirmed the dismissal of the punitive damages claim (count 16). Under N.J.S.A. 12A:3-116(b), a negotiable instrument payable to joint payees not in the alternative requires the endorsement of both payees for negotiation. The court held that payment of a check with a missing endorsement is equivalent to a forgery and constitutes conversion against the non-signing payee. The bank conceded its improper deposit of the check, establishing its liability. However, Sommers provided no facts to support a finding of intentional or malicious conduct by the bank, which would be necessary for punitive damages.
Analysis:
This case significantly clarifies the 'common knowledge' exception to the expert testimony requirement in legal malpractice claims, making it easier for clients to pursue claims against attorneys for fundamental breaches of duty without the prohibitive cost of expert reports. It reinforces the principle that basic attorney responsibilities, such as diligent preparation, honest communication, and ethical handling of funds, are within the ordinary understanding of jurors. Furthermore, the decision underscores the strict liability of banks under the Uniform Commercial Code for improperly negotiating checks requiring multiple endorsements, providing robust protection for payees against unauthorized fund access. This dual impact expands accountability for legal professionals and financial institutions alike, enhancing client and payee protections.
