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Grubbs v. Knoll4/15/2005
consideration that prompted the exception to the "American Rule" carved out by our Supreme Court in Saffer. The fee-shifting provisions of statutes such as the LAD and the CFA express a legislative intent to encourage private plaintiffs to vindicate statutorily created rights and enable them to retain competent counsel in doing so. In furtherance of that legislative policy, courts have determined that the "reasonable attorney's fee" authorized by fee-shifting statutes can include an enhancement of the lodestar fee to take into account the risk of nonpayment where the representation is undertaken on a contingency basis.
In contrast, Saffer's judicially created fee-shifting was not based on a legislative policy of attracting competent counsel to vindicate express legislative or congressional policy. Nor was it based on a statutory entitlement to a "reasonable fee" that might justify application of a multiplier in furtherance of legislative goals of ensuring access to the courts. Instead, the Saffer Court determined that an award of legal fees and expenses incurred by the prevailing plaintiff in a common law legal malpractice action was a necessary component of damages in order to make the plaintiff whole. In re Niles, supra, 176 N.J. at 297 (citing Packard-Bamberger, supra, 167 N.J. at 443); Saffer v. Willoughby, supra, 143 N.J. at 271-72.
The enhancement of a legal fee award sought by the Knolls would go well beyond Saffer's rationale of making legal malpractice plaintiffs whole, and would implicate important public policy questions such as, whether fee enhancements are really necessary and appropriate to attract competent counsel to undertake the prosecution of legal malpractice claims. In this regard, it is also worth noting that the Knolls' attorney did not take this case on a contingency basis. Such far-reaching public policy decisions, which could presumably impact on the terms and rates of malpractice insurance coverage in this state, are better left to the Supreme Court. See Van Natta Mechanical Corp. v. DiStaulo, 277 N.J. Super. 175, 186 (App. Div. 1994) (declarations about extending New Jersey's public policy are "better left to the Supreme Court").
In the final analysis, the constitutional authority for the fee-shifting authorized by Saffer is derived from the Supreme Court's rule-making authority. A decision to expand Saffer by granting enhancements of attorney's fee awards in legal malpractice cases would exceed the authority of this court. See Farnkopf, supra, 363 N.J. Super. at 396 (rejecting argument that counsel fees could be shifted to Salem County Office on Aging and declining to expand fee-shifting principles of Niles and Lash on ground that only Supreme Court possesses necessary constitutional rule-making authority to do so).
We, therefore, reject the Knolls' contention that the trial judge erred in denying their motion for a fee enhancement.
Except to remand to amend paragraph four of the judgment entered on August 1, 2002 to reflect a judgment against defendant Louis V. Chapman and third-party defendant Feinman & Chapman in the amount of $124,537.68 for which they shall be jointly and severally liable and to amend further paragraph five to enter final judgment in favor of the Knolls and against defendant Louis V. Chapman and third-party defendant Feinman & Chapman P.A., jointly and severally, nunc pro tunc as of October 29, 2001, in the total sum of $132,132.13 which is the sum of $124,537.68 plus the $7594.45 judgment entered on December 4, 2001, the judgment is otherwise affirmed on both the direct and cross-appeals.
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