Common knowledge doctrine does not apply when affidavit of merit is required because it is not the label placed on the action that is pivotal but the nature of the legal inquiry.

The plaintiff noticed an advertisement to invest in a real estate project located in Vietnam. The advertising newspaper and person introduced the plaintiff to two other co-investors and attorney Michael Song, Esq. for the purpose of his acting as the attorney for the investment project. Mr. Song advised the plaintiff and the co-investors that they should each retain their own attorney. They rejected this advice, signed a waiver and agreed to pay Mr. Song for preparing the loan documents. Mr. Song advised the plaintiff that the best way to secure the investment was by taking a mortgage on one of the co-defendant's home in New Jersey. The plaintiff relied on Mr. Song’s representation that his investment would be secure and alleges that Mr. Song prepared a note and mortgage. The plaintiff provided Mr. Song with two checks totaling $300,000, and Mr. Song deposited the checks in his trust account, wiring $295,000 to one co-defendant and keeping $5,000 for his fee. After that, one co-defendant told the plaintiff that the other co-defendant disappeared, and the plaintiff learned that there was insufficient collateral in the home securing the loan to protect his investment. The plaintiff filed a suit against the co-defendants but did not name Mr. Song in it. One of the co-defendants filed an Answer and Third-Party Complaint naming Mr. Song and alleging malpractice. The plaintiff then filed an amended complaint naming Mr. Song as a direct defendant. The plaintiff did not serve an affidavit of merit. Mr. Song moved to dismiss, arguing he was entitled to judgment as a matter of law because the plaintiff failed to serve an affidavit of merit. The plaintiff argued that an affidavit is not required because the common knowledge doctrine applies. The appellate court affirmed that an affidavit of merit was necessary, relying on substantially the same reasons as the trial court that Mr. Song was sued in his capacity as an attorney; affidavits of merit are required for all causes of action against Mr. Song because the allegations require proof of a deviation from the professional standard of care for attorneys. The plaintiff admits that Mr. Song was sued in his capacity as an attorney, the matter concerned complex legal issues, and the allegations arise from the performance of all legal tasks triggering the necessity of an affidavit of merit.

Case Law Alert - 1st Quarter 2013