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Newell v. Hudson3/16/2005
ng their cases and who render reasonable advice to their clients cannot be held liable for the failure of their strategies or for any unprofitable outcomes that result because their clients took their advice. The law demands that attorneys handle their cases with knowledge, skill, and diligence, but it does not demand that they be perfect or infallible, and it does not demand that they always secure optimum outcomes for their clients.
[Ibid.]
In Puder, supra, 362 N.J. Super. at 485, we held under Ziegelheim that the client was not precluded from pursuing a malpractice counterclaim against her matrimonial attorney who negotiated an oral settlement in the divorce action, which the client refused to formalize after having consulted another attorney who advised her the terms were unfavorable, merely because she entered into a new and slightly more favorable divorce settlement agreement while the malpractice action was pending. We focused on the allegation that the attorney negligently negotiated and recommended the settlement with only limited discovery of the husband's assets and, more significantly, settled the case even though the client accepted only"some but not all of the terms." Id. at 482. The client was then arguably placed in a"vulnerable" and"untenable" position in the enforcement action by reason of her former attorney's breach of duty, prompting her acceptance of the second settlement. Id. at 489-90. We also held that the trial court's invocation of judicial estoppel was error, but that was in the context of the malpractice counsel's certification with his motion for a stay stating that resolution of the matrimonial action would moot her malpractice counterclaim. Id. at 494-94. The basis for that ruling is not pertinent to the issues before us.
In Ziegelheim and Puder, the courts recognized legal malpractice as a viable cause of action where a matrimonial attorney's negligent pretrial preparation and advice led to the recommendation of an improper settlement. By declining to apply a per se bar, these cases preserve a malpractice claim of a vulnerable litigant who unknowingly enters into an inadequate settlement, believing it is fair, as a result of the arguable negligence of her matrimonial attorney. These cases, however, do not bestow special protection or immunity from the doctrine of judicial estoppel on a litigant such as Hudson who claims to have perjured herself to obtain judicial approval of her marital settlement agreement in order to maintain a subsequent legal malpractice counterclaim. The case before us is factually inapposite and has none of the policy considerations inherent in Ziegelheim and Puder.
As the Supreme Court of Idaho recognized,
For guidance purposes and to avoid misapplication of judicial estoppel, it should be made clear that the concept should only be applied when the party maintaining the inconsistent position did have, or was chargeable with, full knowledge of the attendant facts prior to adopting the initial position. Stated another way, the concept of judicial estoppel takes into account not only what a party states under oath in open court, but also what that party knew, or should have known, at the time the original position was adopted. Thus, the knowledge that the party possesses, or should have possessed, at the time the statement is made is determinative as to whether the person is playing"fast and loose" with the court.
[McKay v. Owens, supra, 937 P. 2d at 1229.]
Mrs. Ziegelheim accepted a property settlement agreement believing it to be fair and reasonable based on the advice of her attorney and truthfully testified as such to the court. It was only later that she learned that he
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