An attorney can be liable for the plaintiff’s attorneys’ fees in a legal malpractice action if the attorney intentionally breached his fiduciary duty as trustee and escrow agent, even though the attorney was not acting as the plaintiff’s attorney.

The plaintiff and his former spouse (a citizen of Spain) were in a contested divorce proceeding for custody of their daughter, a dual citizen of the United States and Spain. With the aid of counsel, both parties entered into an agreement that the daughter’s passport would be held in escrow and would not be released without the written permission of both parents. Subsequent to entering the agreement, the plaintiff’s attorney and the spouse’s attorney released the daughter’s passport. The former spouse took the daughter to Spain, where a Spanish court ordered the daughter to remain in Spain until the age of 18.

The plaintiff filed a lawsuit against his former spouse’s attorney alleging negligence and intentional interference with the agreement. At trial, the jury decided that the attorneys were negligent in releasing the daughter’s passport to the former spouse without consent of the plaintiff. Upon appeal, the New Jersey Appellate Division held that the plaintiff was entitled to attorney’s fees, despite the lack of an attorney-client relationship between the plaintiff and the former spouse’s attorney. The New Jersey Supreme Court upheld the Appellate Division’s ruling that the plaintiff was entitled to attorney’s fees from the former spouse’s attorney, despite the absence of an attorney-client relationship, so long as the attorney intentionally breached his fiduciary duty to a non-client. The New Jersey Supreme Court thus extended the fee-shifting mechanism consistent with legal malpractice as to a client to include fee-shifting in a non-client situation.

The case was remanded by the New Jersey Supreme Court for a determination of whether the former spouse’s attorney intentionally interfered with the aforementioned agreement.

_{Case Law Alerts, 3rd Quarter, July 2016}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2016 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}