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Legal Memorandum: Sanctions for Frivolous Complaints in NJ

Issue: Under New Jersey law, does an affidavit of merit immunize an attorney for sanctions for filing a frivolous complaint?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Sanctions; Frivolous complaint; Affidavit of merit
Jurisdiction: New Jersey
Cited Cases: 141 N.J. 346; 370 N.J. Super. 11; 345 N.J. Super. 1; 132 N.J. 546; 96 N.J. 669
Cited Statutes: N.J. Ct. R. 1:4-8; N.J. Ct. R.. 1:4-8(a)(3), (4); N.J.S.A. 2A:53A-27; N.J. Const. (1947), art. VI, § 2, para. 3
Date: 09/01/2004

The standard for sanctions under N.J. Ct. R. 1:4-8 is whether the claim was warranted by existing law or by a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law; and whether the factual allegations have evidentiary support.  N.J. Ct. R.. 1:4-8(a)(3), (4). 

An affidavit of merit does not immunize a complaint, as a matter of law, from being frivolous.  The threshold showing of merit required by N.J.S.A. 2A:53A-27 is made entirely on the representation of counsel.

This contention also fails to recognize that the Supreme Court has the exclusive power to “make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts.”  N.J. Const. (1947), art. VI, § 2, para. 3.  There is no support for the suggestion that the Legislature intended to immunize attorneys from sanctions for filing frivolous complaints because an affidavit of merit was obtained. 

There is no conflict between [the act] and the court rules. In Winberry v. Salisbury, 5 N.J 240 (1950), there was a direct conflict between a court rule and a statute concerning the time to appeal from a final judgment of the trial division of the Superior Court.  Likewise, in Matter of Hearing on Immunity for Ethics Complainants, 96 N.J. 669 (1984), there was a direct conflict between a Supreme Court opinion and a statute concerning the amenability of ethics complainants to malicious […]

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