Implications of Circle Chevrolet for Attorney Malpractice and Attorney Ethics

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There are two fundamental criticisms of the Entire Controversy doctrine. 1 The first is based on public policy: what conceivable benefit is there to a doctrine that, in the words of Professor Hazard, encourages the "rational litigant" to file "every conceivable claim against every conceivable target," including "secondary and contingent controversies" that in all likelihood "will become irrelevant or will resolve themselves"? 2 The second criticism is more practical: again in the words of Professor Hazard, "the doctrine introduces horrendous uncertainty into complex civil litigation," as such, it is "opaque to very good lawyers and judges" and "a trap for the unwary among merely average lawyers." 3

Unlike Professor Hazard and the other distinguished professors contributing papers to this symposium, I am not an expert on civil procedure. Thus, I have nothing to contribute on the general question of whether the Entire Controversy doctrine is such an abomination that it ought to be abolished altogether. Rather, I will assume that the Entire Controversy doctrine is here to stay and further that, on the whole, its beneficial contributions to fairness and efficiency do outweigh its various harms, in at least most of the cases to which the doctrine has been applied. From there, I will limit my remarks to cases involving attorney malpractice and will consider the following questions: 1) are the implications of Circle Chevrolet4 for attorney malpractice actions so dire that the New Jersey Supreme Court ought, at the very least, to admit that it made a mistake in extending the doctrine to this particular category of cases? 5 2) assuming that the Entire Controversy doctrine continues to apply to attorney malpractice actions, is there any basis for an attempt to narrow its scope, e.g., to exclude certain actions where the attorney continues to represent the client in the primary litigation?6 and 3) what are the implications of Circle Chevrolet for the attorney's ethical obligation to inform a client that the attorney may have made a mistake which might be the subject of a malpractice action?7

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