Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The six-year statute of limitations on legal malpractice can be a fuzzy concept in matrimonial cases, and a New Jersey appeals court has shown why. A three-judge panel ruled Tuesday that a wife who agreed to an alimony settlement in 1995 could sue for malpractice nine years later because she did not know she had a case against her lawyer until another attorney told her so. Defendant Christine Farrington argued that the statute of limitations ran out in 2001 � six years after the client began feeling disappointed about the settlement and six years after her accountant allegedly told her the settlement could have been better. That was enough to start the six-year clock in 1995, a trial judge ruled last year in throwing out the malpractice case. But the appeals court reinstated the claim in Viglione v. Farrington , A-3912-05, saying the cause of action did not accrue when the client had a premonition that something went wrong. It accrued when another lawyer told the client she might have a malpractice case. “We reject the motion judge’s conclusion essentially suggesting that unhappiness with the terms of a settlement equates to knowledge of sufficient facts as to trigger the commencement of the statute of limitations,” Judges Howard Kestin, Harvey Weissbard and Marie Lihotz said in their per curiam opinion. The opinion was not published, but it reminds matrimonial lawyers that there is no telling how long after a final judgment they can remain liable for malpractice. Here’s what happened, according to the plaintiff’s set of facts, as recounted in the opinion reversing summary judgment: Under the final judgment of divorce in October 1995, plaintiff Dianne Viglione received $544,000 in equitable distribution and $40,000 in rehabilitative alimony for eight years from her husband Peter, who had business interests in Morris and Passaic counties. It was a good settlement, according to the wife’s lawyer, Farrington, then with Biagiotti, Marino, Montecallo & Farrington in Hackensack. She is now a lawyer for the Port Authority of New York and New Jersey. In 1998, Dianne Viglione went to Robert Corcoran of Hackensack for advice about getting more alimony, and Corcoran advised her that Farrington had committed legal malpractice. Corcoran filed a post-judgment application and, after a trial, the wife won permanent alimony of $20,000 a year and attorneys’ fees and costs. Viglione sued Farrington for malpractice in 2004, claiming she should have wrested millions of dollars from her ex-husband during the original proceedings. The plaintiff’s expert, Cary Cheifetz of Ceconi & Cheifetz in Summit, estimated, for example, that Viglione could have received $1.8 million in equitable distribution alone if she had gone to trial rather than settled. But Bergen County Superior Court Judge Estela De La Cruz granted summary judgment to the defense on grounds that the plaintiff knew she had a cause of action at the time of the settlement. “If she believed that she deserved permanent alimony at that time in 1995, then she was immediately damaged, especially in light of the fact that her accountant advised her that she was entitled to permanent alimony,” De La Cruz reasoned. “At that point, when plaintiff discerned that she was being damaged, the statute of limitations period began to run.” But the Appellate Division cited evidence that Viglione, though she had doubts, relied on her lawyer’s assurances the deal was good. And it suggested that those assurances are particularly powerful in matrimonial proceedings in which great emotional pain and stress makes clients dependent on their lawyers. “An economically dependent spouse relies on his or her matrimonial attorney to lead the way through the litigation labyrinth to the path of future economic security,” the court said. “Nothing in this record suggests that plaintiff knew or should have known that defendant had taken her off-course.” And the accountant’s doubts about the settlement did not matter either, the court said, because the accountant was not qualified to give legal advice. In addition, there is evidence in the case that the accountant told Viglione to take the lawyer’s advice. The plaintiff’s lawyer, William Voorhees of Morristown, says, “This is important because it stands for the proposition that a client is entitled to believe her lawyer. If the lawyer says something and the client believes it, the client should not be faulted.” Voorhees says “the courts of New Jersey have been very protective of lawyers on the statute of limitations.” He cites, for example, Vastano v. Algeier , 178 N.J. 230 (2003), in which the Supreme Court ruled that the malpractice cause of action accrued when the disgruntled client obtained his file from the lawyer and had the opportunity to read everything that had occurred. At the same time, though, lawyers do face “long tails” of liability beyond the six years, most often in a matrimonial, estate or real estate context, he says. “Lawyers can minimize the exposure by properly representing the client.” Voorhees says the opinion is in line with statute of limitations principles in medical malpractice cases. “A patient may be dissatisfied with the results of the operation, but may have absolutely no inkling that the doctor did anything wrong,” he says. In divorce cases, it would be unfair to make causes of legal malpractice actions accrue when a client is dissatisfied with a judgment because “it’s very rare than anyone is satisfied by a divorce settlement.” The lawyer for Farrington’s former firm, Robert Hille of Kalison, McBride, Jackson & Murphy in Warren, says an appeal to the Supreme Court is being considered. He says nonpublished opinions have more weight with trial judges than they did before the Administrative Office of the Courts began posting them online. And that, he says, raises concerns that Tuesday’s opinion will be viewed as a precedent for the principle that it takes a lawyer’s declaration that malpractice occurred to start the six-year clock ticking. “What you need here is a legal opinion that malpractice occurred before the statute runs,” he says. “That’s the effect of the opinion here.” He says the accountant’s expression of concern at the time of the settlement should have been considered enough to trigger Viglione’s knowledge that her lawyer had erred. Nothing happened between 1995 and 1998, when Viglione went to the second lawyer, to create the “epiphany” that malpractice had occurred, Hille says. “Obviously, she had enough information from what she knew back in 1995,” he says. Farrington’s lawyer, Iram Valentin of Kaufman Dolowich & Voluck in Woodbury, did not return a call.But he and co-counsel John Gonzo say in their appellate brief that the plaintiff had plenty of time to file for malpractice within the six-year statute of limitations but chose instead to re-open the alimony question in family court. They note that Viglione was waiting to see whether she still had damages and, if so, how much, after the second proceeding. But if plaintiffs feel they have a legally cognizable injury, they have a right to sue at that point without being concerned about the damages, the brief says. The proper procedure is to file the malpractice claim and stay it while the underlying litigation is playing out, the defense brief adds. The defense also says it is prejudiced by the delay because transcripts of the 1995 proceedings have been discarded under the court’s policy of retaining transcripts for only five years. In addition, the forensic accountant whose advice is an issue in the case has retired and cannot be located, according to the defense.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.