An article relating to the question of whether a law firm can be vicariously liable for the legal malpractice of a lawyer functioning as an independent contractor. Authored by Frank T. Luciano, Esq., whose office is located in Bergen County. For almost 35 years, Mr. Luciano has represented clients in complex civil cases, including legal malpractice claims. He works in Bergen, Passaic, Hudson, Morris and Essex Counties.

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LEGAL MALPRACTICE LAW IN BERGEN AND PASSAIC COUNTIES: CAN A LAW FIRM BE HELD VICARIOUSLY RESPONSIBLE FOR THE ACTS OF ITS INDEPENDENT CONTRACTOR?


In April 1992, a record publishing company obtained a 4.5 million dollar judgement against an individual and his business entity for breaching a royalties agreement. Thereafter, the publishing company engaged Sills, Cummins, Zuckerman, Raiden, Tishman, Epstein and Gross, Esqs., a New Jersey law firm, to locate and levy upon real estate owned by the original defendants who were located in New Jersey. When the publishing company learned that the defendants had sold the real estate in an apparent fraudulent transfer, they requested the Sills law firm to prosecute that claim on a contingent fee basis. The offer was rejected by the Sill’s firm, who in turn referred the claim and the client to another New Jersey law firm, Lence and Genarro, Esqs. That law firm ultimately filed a fraudulent conveyance complaint. In 1995, the complaint was dismissed because of the statute of limitations. After this dismissal, the publishing company engaged Andrew Napolitano, Esq., a former judge and law professor to obtain a reconsideration of the trial judge’s decision. That application was successful. In order to preserve the publicist’s best interest, the Genarro firm and Napolitano advised the client that the Sill’s firm had committed legal malpractice by failing to advise the client of the critical dates under the statute of limitations. The Sill’s firm then notified its legal malpractice carrier.

Two years later, Napolitano joined the Sill’s firm and recommended that the Sill’s firm be re-engaged by the publisher. The Sill’s firm again refused the engagement because of the pending malpractice claim and its prior history with the publishing company’s late payment and non-payment of fees. As a result, Napolitano entered into a “private consultancy arrangement” with the publishing company where the Genarro firm continued to officially represent the publishing company in the fraudulent transaction law suit. During that law suit, Napolitano used resources of the Sill’s firm to further the fraudulent transaction case, including the use of Sill’s firm’s associates to right a letter brief and the use of the law firm’s office to conduct depositions and various meetings.

Ultimately, the trial court dismissed various components of publishing company’s fraudulent conveyance claim because of the statute of limitations. That decision prompted a law suit where the publishing company sued, among others, the Sill’s firm and Napolitano. Ultimately, the Sill’s firm filed a motion for summary judgment seeking to dismiss the publishing company’s complaint contending that it could not be held responsible for the conduct of Napolitano because he was an independent contractor.

In addressing this issue, the court began its analysis by noting that professional corporations are liable for the negligence of its agents or employees even if the agent/employee was not acting with actual or apparent authority so long as the conduct was within the ordinary course of the firm’s business or within the scope of the agent’s or servant’s employment. Continuing, the court said in order for Napolitano’s conduct to be imputed to the Sill’s firm, it must be shown that it was motivated in part, by a purpose to serve the Sill’s firm. In that regard, the court concluded that the evidence in the case, established rather clearly that Napolitano’s decision to provide the publishing company with legal services was self-motivated and not to benefit the Sill’s firm and that was especially so given the putative claim for legal malpractice previously made by the publishing company against the Sill’s firm.

With respect to the apparent authority issue, the court focused on that element of the doctrine that required the publishing company to establish a reasonable belief that Napolitano was acting under the authority of the Sill’s firm. Analyzing this issue, the court referred to the testimony of the principle of the publishing company where he said that the Sill’s firm did not manifest any conduct that would have assisted him in believing that the Sill’s firm was representing his company.




Frank T. Luciano, Esq., is a trial lawyer in Bergen County,  Passaic County, Hudson County and Morris County, with over thirty years of experience, who specializes in complex civil litigation, including  legal malpractice, construction claims, wrongful death actions, wills and estate contests and liquor law liability cases. 

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