A recent New Jersey Law Journal story, “Justices Mulling Counsel Fees for Non-Clients in Legal Mal Cases” reports that the New Jersey Supreme Court is considering whether attorneys who are found to have committed legal malpractice can be required to pay legal fees to non-clients.

The court heard arguments in a case involving international child abduction that the plaintiff—the child’s father—successfully claimed was facilitated when the mother’s attorney have gave her the child’s passport.

If lower court rulings in favor of the father stand, family lawyer Madeline Marzano-Lesnevich and her firm, Hackensack’s Lesnevich & Marzano-Lesnevich, would be forced to pay a judgment of $992,333, which includes $158,517 for the father’s counsel fees and costs.

A ruling in the father’s favor would be an expansion of the high court’s landmark 1996 decision in Saffer v. Willoughby, in which it ruled that clients could be awarded counsel fees for their attorneys’ malpractice. The lawyer representing Marzano-Lesnevich and the firm, Christopher Carey, urged the court to not expand on its holding Saffer.

“A lawyer does … owe a duty to a non-client and can be sued, but to now expose the attorney on top of that for attorneys’ fees is going too far,” said Carey, of Morristown’s Graham Curtin. “This is becoming an area of law that has become a specialty because fee can now be awarded.”

Justice Barry Albin said it is clear that an attorney’s client must be made whole if he or she is the victim of malpractice. Why, he asked, shouldn’t a non-client be put in the same position if there has been malpractice?

The New Jersey State Bar Association participated as amicus. Its attorney, Fruqan Mouzon, urged the court not to expand Saffer. “There has always been a strong policy against shifting attorneys’ fees,” said Mouzon, of Gibbins in Newark. “The court deviated from that foundation 20 years ago” in Saffer.

The bar association’s position here, he said, was that there must be an attorney-client relationship before counsel fees can be awarded in malpractice cases.

Albin said “logic, fairness and public policy” suggest that non-clients should be able to recover counsel fees if they are the victims of their adversaries’ lawyers’ malpractice.