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Yes – There Was A Conflict of Interest – But No Legal Malpractice Case

The case is GB v. Christine Rossi, A-240-17T3. The case was decided in New Jersey and is an unpublished opinion. The case illustrates one problem with legal malpractice cases – there may be wrongful conduct, but the plaintiff must tie the wrongful conduct to her damages.

Plaintiff was getting divorced.   She met with Rossi for about an hour and made numerous disclosures. Rossi declined representation.

Later, plaintiff’s husband filed for a temporary restraining order against plaintiff alleging that she had committed domestic violence. At trial, Rossi represented husband. Husband won the trial and GB was evicted from the marital home. Please note that Rossi did not file an appearance in the divorce case. She only appeared in the domestic violence case.

GB sued Rossi for legal malpractice and intentional infliction of emotional distress. The case was dismissed and the dismissal was affirmed on appeal. The problem was that GB could not show that Rossi’s conduct harmed her in the domestic violence case or the divorce case.

The explanation:

Notwithstanding, this case turns on different considerations, specifically plaintiff’s failure to establish causation and damages. Plaintiff argues she revealed the following facts to defendant, which she claims were then utilized to her disadvantage in the domestic violence proceeding, namely:

the parties[`] finances, the separate bank account she had, their alcohol and cigarette purchases, alcohol consumption and smoking habits, [J.B.’s] use of marijuana . . ., [J.B.’s] use of prescription drugs, prior domestic violence committed by [J.B.], a prior incident at [a bar] in Toms River where she did not feel capable of driving home after drinking alcoholic beverages there. . . . She discussed [an] . . . incident occurring in April 2012[,] wherein she attempted to put a hand gun in the trash as she did not want one in the house as her mother had committed suicide and when [J.B.] went to grab the gun from her she pushed him and in doing so [J.B.] got scratched.We are not persuaded this information affected the outcome of the domestic violence matter. The evidence adduced at the FRO hearing included the testimony of two Brick Township police officers. One officer testified to a prior incident where plaintiff was intoxicated, and the other to an incident where she was intoxicated and assaulted a police officer. J.B. also testified regarding the predicate act of domestic violence leading him to apply for a TRO, as well as prior incidents of domestic violence, including one in 2012, involving a gun. Plaintiff has not demonstrated this information was derived from her initial consultation with defendant or that defendant could only have obtained this information through plaintiff. It is evident J.B. had independent knowledge of these incidents and brought them to defendant’s attention to enable her to prosecute the domestic violence matter.

Plaintiff claims she was disadvantaged in the divorce action because certain business records and a recording on her cellular telephone, which contained evidence regarding the valuation of J.B.’s interest in his company, were located inside the former marital residence, which she could not access because of the existing restraining order. As with the evidence adduced during the domestic violence trial, plaintiff demonstrated no causal link between her initial consultation with defendant, and the entry of the TRO, the FRO, or inability to access the residence. No evidence exists of any special knowledge acquired by defendant causing the trial court to grant either the TRO or FRO. Moreover, as a practical matter, the TRO granted plaintiff access to the former marital residence to collect her belongings. Notwithstanding, she does not explain why she did not obtain the business records and her cellular telephone, at the time or in discovery.

Comment: this is an all too typical situation where there is an arguable beach of duty but no legal malpractice case because plaintiff cannot prove damages. To do so, plaintiff must tie the wrongful conduct to some form of economic damages.

Ed Clinton, Jr.

http://www.clintonlaw.net

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