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December 12, 1988


The opinion of the court was delivered by: LIFLAND



 On May 31, 1977, plaintiff and four co-defendants were indicted for the robbery of the Atlantic City Post Office. Plaintiff, who was postmaster at the time of the commission of the crime, was charged with conspiracy to rob the post office, the actual robbery, and putting the post office guard's life in jeopardy by use of a handgun. After his arrest on June 3, 1977, plaintiff retained defendant as defense counsel. On September 27, 1977, allegedly upon the advice of defendant, plaintiff pleaded guilty to all three counts of the indictment including two aggravated counts which charged him with knowledge of the use of a weapon during the commission of the crime. Plaintiff alleges that defendant permitted and recommended the guilty plea without inquiring whether any factual basis existed for the plea, particularly with regard to the use of weapons. On January 7, 1978, plaintiff was sentenced to a 25-year prison term in a maximum security penitentiary.

 While in prison, plaintiff retained other legal counsel to seek reduction of his sentence. On December 21, 1982, the court granted plaintiff's motion to vacate his guilty plea to the two aggravated counts of the indictment. Plaintiff was released from prison on January 3, 1983, after serving approximately five years in prison.


 In the instant suit, plaintiff alleges that but for defendant's negligent legal representation he would have served a maximum of forty months in a correctional facility. Plaintiff seeks damages for, among other things, the emotional anguish he sustained during the "extra" twenty months of confinement in a maximum security penitentiary.

Although not a guarantor against errors in judgment (citation omitted), an attorney is required to exercise on his client's behalf the knowledge, skill and ability ordinarily possessed and exercised by members of the legal profession similarly situated and to employ reasonable care and prudence in connection therewith. Where he breaches his duty he is answerable in damages only for losses which are proximately caused by his negligence. The burden of proving the causal relationship rests with the client (citations omitted). The test of proximate cause is satisfied where the negligent conduct is a substantial contributing factor in causing the loss. (citations omitted). The burden of proof must be carried by the presentation of competent credible evidence which proves material facts. It cannot be satisfied by conjecture, surmise or suspicion. (citations omitted).

 Lamb v. Barbour, 188 N.J. Super. 6, 12, 455 A.2d 1122 (App. Div. 1982).

 In Gautam v. DeLuca, 215 N.J. Super. 388, 521 A.2d 1343 (App. Div. 1987), plaintiffs brought an action for legal malpractice against their attorney for the negligent prosecution of a medical malpractice claim. Plaintiffs sought compensatory damages and damages for emotional distress. The court held that in the absence of egregious or extraordinary circumstances, damages for emotional distress were not recoverable in a legal malpractice action. The court started with the premise that an attorney is liable for damages which are proximately caused by his negligence. However, in determining what damages can be recoverable, the court focused upon the contract relationship whereby the attorney promised to prosecute his clients' claim so that they would be recompensed for their injuries. The parties had an essentially economic relationship. "In that context, the measure of damages is ordinarily the amount that the client would have received but for his attorney's negligence," and under these circumstances, "damages should be generally limited to recompensing the injured party for his economic loss." Id. at 397. Further, "such damages are generally shown by introducing evidence establishing the viability and worth of the claim that was irredeemingly lost." Id.

 The court also based its holding upon public policy considerations:

As a practical matter, there must be some convenient clamp or restriction placed upon a tortfeasor's otherwise boundless liability. The courts cannot serve as the answer for all of life's shortcomings and disappointments. Aggravation, annoyance and frustration, however real and justified, constitute unfortunate byproducts of daily living. Damages for ...

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