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Tuesday, April 22, 2014

04/07/14 PETER INNES, ET AL. VS. MADELINE MARZANO- LESNEVICH, ESQ., ET AL. VS. MITCHELL A. LIEBOWITZ, ESQ., ET AL. A-0387-11T1

04/07/14 PETER INNES, ET AL. VS. MADELINE MARZANO- LESNEVICH, ESQ., ET AL. VS. MITCHELL A. LIEBOWITZ, ESQ., ET AL.
A-0387-11T1

Plaintiff, individually and on behalf of his daughter, sued defendants, a law firm and one of its principals,
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alleging emotional distress damages as a result of defendants' breach of their professional responsibility. The complaint centered on a pre-divorce agreement, executed by the parties and their attorneys, that required plaintiff's ex-wife's then attorney to hold the daughter's passport in trust. Defendants, as successor counsel, with full knowledge of the agreement and without notice to anyone, gave the passport to the child's mother, who used it to remove the child to Spain, where she remains in the custody of her maternal grandparents. Plaintiff's ex-wife was criminally prosecuted and at the time of trial was incarcerated in New Jersey. Plaintiff has essentially been denied any contact with the child in the ensuing years. See Innes v. Carrascosa, 391 N.J. Super. 453 (App. Div.), certif. denied, 192 N.J. 73 (2007).
The jury found that, even though they were not clients, defendants breached the professional duty they owed to plaintiffs. It awarded damages to both father and daughter, and the judge included an award of counsel fees to both as part of the final judgment.
We affirmed the judgment as to plaintiff-father, but vacated the judgment as to his daughter. We discuss the duty owed by an attorney to a third-party in certain circumstances, the availability of emotional distress damages in an action sounding in legal malpractice, the necessary elements of proof in such an action and the propriety of an award of counsel fees to non-clients in such circumstances.