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Major and German Obtain Dismissal in Case of Alleged Attorney Negligence

September 5, 2019

Matthew Major (Of Counsel-New Jersey) and Kira German (Associate-New Jersey) defended client attorneys against claims of alleged negligence in connection with events that took place during the underlying divorce proceeding. Plaintiff’s claim against our clients was based solely on their alleged breach of the professional code of conduct by forwarding a scheduling email that inadvertently contained a hyperlink that permitted access to client files. Importantly, the plaintiff did not allege that our clients accessed the files, were aware of the existence of the hyperlink when forwarding the email, or were aware of the capability to access the client files through the use of the hyperlink. Instead, the plaintiff specifically relied on Rule of Professional Conduct (RPC) 4.4(b) entitled, “Respect for Rights of Third Persons.” Matt and Kira filed a Motion to Dismiss pursuant to Rule 4:6-2(e) and argued two points. First, the claim for professional negligence could not survive due to a lack of privity between the plaintiff and our clients. Second, even assuming, arguendo, that there was privity and that our clients violated a rule of professional conduct in forwarding an email, New Jersey Courts have repeatedly held that violation of the Rules of Professional Conduct (RPC) cannot be used to provide a basis for civil liability against an adversary’s attorney. The New Jersey Supreme Court had declined to permit a cause of action for a violation of the RPCs, noting that “neither the Appellate Division nor this Court has held, however, that the RPCs in themselves create a duty or that a violation of the RPCs, standing alone, can form the basis for a cause of action.”

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