February 27, 2009
AWILDA SANTIAGO, PLAINTIFF-APPELLANT,
COUNTY OF PASSAIC, JAMES V. CONVERY, WILLIAM J. MURRAY, AND MURRAY & KIMBALL, LLC, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8603-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 12, 2008
Before Judges Stern, Collester and C.L. Miniman.
Plaintiff Awilda Santiago appeals from the dismissal of her complaint against the County of Passaic (County) and James Convery, then Passaic County Administrator, for denial of reasonable accommodation due to physical disability in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 5-49, and from a jury verdict of no cause for action on her claim of legal malpractice by William J. Murray, Esq., and Murray and Kimball, LLC. We affirm.
Plaintiff was employed by the County as a benefits clerk from 1975 through 2001, a total of twenty-six years. In February 2001 she suffered neck and back injuries after shoveling snow at her home. She was examined and treated by Dr. Victor D. Antonacci, an orthopedic surgeon, who diagnosed plaintiff with bicipital tendonitis, cervical strain, and impingement syndrome.
On February 24, Dr. Antonacci provided the County with a medical certificate stating that plaintiff was unable to work for two weeks due to her injuries. She was placed on medical leave by the County from February 26 to March 9. Pursuant to the Personnel Policy Manual of the County, plaintiff was to exhaust her accumulated sick leave and vacation time before she was eligible for temporary disability benefits. Subsequently, Dr. Antonacci represented on March 9 that plaintiff was unable to perform the duties of her job for an additional four weeks, and the County extended her leave until April 6. At the direction of the County, plaintiff was examined by Dr. Lawrence I. Livingston on March 27. He agreed with Dr. Antonacci that plaintiff could not return to her job at that time because plaintiff's pain from a cervical radiculitis of her upper left extremity would be aggravated by prolonged sitting.
Plaintiff testified that in early April she went to see defendant Convery and handed him a letter in which she resigned her position effective April 11, 2001, citing health and personal reasons which prevented her from returning until September. She said Convery did not accept her resignation, told her she was a good worker and would see her in September.
By this time plaintiff had exhausted her sick pay and vacation pay and sought benefits under the County's self-insured short term disability plan administered by Capitol Administrators, Inc. On May 16, 2001, a letter was sent by Capitol to plaintiff explaining that to maintain her eligibility for consideration of benefits, she had to be examined by Dr. E. Margerlotis on May 30, 2001. Plaintiff did not keep the appointment. Capitol notified the Passaic County personnel principal benefits clerk that all further temporary disability benefits for plaintiff were denied. Plaintiff was also notified of the decision and her right to appeal the denial to the New Jersey Department of Labor within one year. No appeal was ever filed.
Plaintiff's temporary disability leave with pay was extended to May 10 and then to June 7 based on medical certificates of disability submitted by Dr. Antonacci. However, no medical certificate was tendered to extend the disability period beyond June 7, and plaintiff did not return to work. Plaintiff testified she next saw Dr. Antonacci on June 20. He submitted another medical certificate to the County on the same date stating that plaintiff was still disabled but would be able to return to work in three weeks on July 6. Plaintiff faxed the report to Convery's office on June 21.
On the following day, June 22, plaintiff was sent a preliminary notice of disciplinary action for her removal from County employment on the following charges:
Conduct unbecoming a public employee.
Abuse of sick time.
Absent without leave.
Under the section labeled "specification(s)" the notice stated:
Employee is and continues to be absent without leave commencing from 6/7/01 through the present. Employee has abandoned her position.
The notice advised that if plaintiff desired a departmental hearing, she was to notify the County Personnel Department within five days. The hearing date was fixed for 2:00 p.m. on July 9 at the office of County Counsel. Plaintiff did not respond to the notice and did not appear on the hearing date.
Plaintiff testified that after she received the preliminary notice, her chiropractor suggested she consult with defendant Murray. She called Murray's office and met with him two or three days later. She said she told him she loved her job and wanted it back, adding that in seven years she could retire with a pension. She told Murray she could not pay to retain him because her only income was the disability payments she was receiving. She said he told her he would call the County to "straighten it out" and then bill her. Plaintiff said she called Murray's office every two or three months and was told not to worry because Murray was "working on it."
About ten months later, on April 2, 2002, plaintiff received a notice of final disciplinary action removing her from County employment effective June 21, 2001. The notice stated plaintiff did not request a hearing in response to the June 22, 2001 preliminary notice and that "your counsel discontinued communications with the County." The stated reasons for termination were the identical charges in the preliminary notice, that is:
Conduct Unbecoming a Public Employee.
Abuse of Sick Time.
Absent Without Leave.
The letter further advised plaintiff of her right to appeal the action by the County. No appeal was ever taken.
In late 2001, plaintiff went to Puerto Rico for an extended period of time. After she returned, she called Murray's office on June 20, 2003, and asked to meet with him. It was two years after their first meeting. After she arrived, Murray's partner drafted a document entitled "Agreement to Provide Legal Services" that was signed by both plaintiff and Murray. The document specifically stated that Murray's law firm would not represent her in any litigation against the County or Convery. However, Murray's law firm agreed to assist plaintiff in the preparation of a pro se complaint, jury demand, case information statement, and summonses "on a pro bono publico basis" since her date of termination from County employment was June 21, 2001, and the two-year statute of limitations would expire the following day. The document instructed plaintiff about filing the complaint and other legal documents, payment of fees, service of subpoenas and other litigation procedures. The agreement also contained a hold harmless clause for the law firm in the event the cause of action arose prior to June 21, 2001, and was barred by the statute of limitations. Finally, the agreement specified: "Upon leaving the office on June 20, 2003, the attorney-client relationship, if any, shall therefore cease to exist."
Plaintiff left with the pro se complaint and followed the instructions by filing it before the expiration of the limitation period. The first count of the complaint alleged that the County and Convery failed to make reasonable accommodations for plaintiff during the course of her employment in violation of the LAD. The second count, later withdrawn by plaintiff, alleged defendants discriminated against plaintiff by terminating her employment because she was physically handicapped. Compensatory and punitive damages were sought. On April 23, 2004, now represented by a new attorney, Santiago amended her complaint to add a count of legal malpractice against Murray and his law firm.
The jury trial began on November 27, 2006. After completion of the plaintiff's case, the County and Convery moved pursuant to Rule 4:37-2 for involuntary dismissal of plaintiff's LAD claim on the ground that plaintiff admitted no reasonable accommodation would have enabled her to return to work.
The testimony in question occurred during plaintiff's cross-examination as to her physical condition in the summer of 2001.
Q: Okay. In - if you had gone to the hearing in the - on July 9 and if you got your job at that point you couldn't work anyway, could you?
A: No sir, I was still disabled.
Q: Completely, correct?
Q: And whatever accommodation the County might have made for you, you couldn't work anyway, right?
A: Yes sir.
Q: Yes, you could not have worked?
A: Yes sir.
Q: So it wouldn't have made any difference what kind of accommodation they tried, you couldn't work, you were totally disabled, correct?
A: Until September 1, yes.
Q: July and August you couldn't work no matter what they did?
A: Right, as per my doctor.
Q: Well, did your doctor have to tell you that you couldn't work?
A: Well, if I'm disabled then I go to the doctor, yes.
Q: Well, there's a difference between the doctor telling you you're disabled and you physically or mentally knowing I can't work. Did your doctor have to tell you that you couldn't work or did you know yourself physically, mentally or both I can't work?
A: I couldn't work.
Q: I'm sorry?
A: Yes, I could not work.
Q: Okay. And you knew that of yourself, the doctor didn't have to tell you that right?
The trial judge granted the motion for dismissal finding that no rational jury could conclude that there was a failure to offer reasonable accommodations when the plaintiff stated none was available. The judge stated:
The defendant, County of Passaic, argues that the portion of . . . count one, that relates to the failure - the violation of Law Against Discrimination because of the alleged failure to reasonably accommodate the plaintiff should be dismissed because the plaintiff testified that she was disabled and couldn't return to work, but that she also testified that there was no accommodation which could have been made or which could have been successful. I'm sorry, that there was no accommodation which could have been made.
"[A]n involuntary dismissal is appropriate where no rational jury could conclude from the evidence that an essential element of the plaintiff's case was presented." And that's the Appellate Division in Pitts v. Newark Board of Education, 336 N.J. Super. 331.
So I'm only looking to see if there's something here by which a jury could determine that the County failed to reasonably accommodate the plaintiff, and based upon the testimon[ial] evidence presented during plaintiff's case, giving all favorable inferences, as required, it is the opinion of this court that no rational jury could conclude a reasonable accommodation was not offered, as the plaintiff herself stated that none was available. . . . [A]lthough the plaintiff now alleges well, they could have extended the leave, . . . there wasn't even any testimony in that regard that I recall. So, based upon that, I'll dismiss . . . the reasonable accommodation claims.
N.J.S.A. 10:5-4.1 provides:
All the provisions of [the LAD] . . . shall be construed to prohibit any unlawful discrimination against any person because such person is or has been at any time disabled or any unlawful employment practice against such person unless the nature and extent of the disability reasonably precludes the performance of the particular employment.
The purpose of the statute is to secure disabled individuals full and equal access to employment bounded only by actual physical limitations that cannot be surmounted. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005); Anderson v. Exxon, 89 N.J. 483, 495 (1982); Myers v. AT&T, 380 N.J. Super. 443, 452 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006).
While the LAD does not specifically require a "reasonable accommodation" by the employer for the employee's disability, both the Supreme Court and this court have held that the law mandates it. Potente v. County of Hudson, 187 N.J. 103, 110 (2006); Tynan v. Vicinage 13 of the Superior Court, 351 N.J. Super. 385, 396 (App. Div. 2002).
A prima facie case of failure to accommodate is made when the employee sets forth proof that the plaintiff (1) has a disability under the LAD; (2) is qualified to perform the essential functions of the job with or without accommodation; and (3) has suffered an adverse employment action because of the disability. Brosshead v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App. Div. 2001); Seiden v. Marina Assoc., 315 N.J. Super. 451, 459 (Law Div. 1998). N.J.S.A. 10:5-5(q) broadly defines "disability" to include any "physical disability . . . which prevents the normal exercise of any bodily . . . function." See Viscik v. Fowler Equip. Co., 173 N.J. 1, 16 (2002), noting that the statutory term "handicapped" (later amended to "disability") was not restricted to "severe" or immutable" disabilities and was significantly broader in scope than the analogous provision of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 to 12213. See also Soules v. Mount Holiness Mem. Park, 354 N.J. Super. 569, 573-74 (App. Div. 2002) (a "temporary inability to work while recuperating from surgery or injury is a handicap" under the LAD). Here defendants do not dispute that plaintiff had a disability under the LAD. However, defendants argued, and the trial court found based on plaintiff's own testimony that she could not return to work due to her disability and regardless of any accommodation by the employer.
We note initially that plaintiff did not testify that she could never return to work or that she was unable to perform her job in the near future. Rather, she testified on cross-examination that no accommodation could be made in July and August because she was "totally disabled" until September 1, 2002, the date her doctor told her and advised the County that she could return to work. The question placed before the trial judge was whether plaintiff's disability was such that it could not be surmounted over the two-month period so as to relieve the defendant from the obligation to afford a reasonable accommodation. While a "reasonable accommodation requires an employer to accommodate a disabled employee to perform the essential functions of the job, it does not require the employer to satisfy every request of the disabled employee." Brosshead, supra, 345 N.J. Super. at 91. However, plaintiff correctly points out that our courts have indicated that a leave of absence may constitute a reasonable accommodation under the LAD. See Soules, supra, 354 N.J. Super. at 577 and Tynan, supra, 351 N.J. Super. at 401-02 in which we discussed leave of absence as a LAD consideration. Cf. Potente, supra, 187 N.J. at 110-11. Furthermore, the Director of the Division of Civil Rights (DCR), the agency charged to administer and enforce the LAD, stated that "time off from work is a form of accommodation which may be reasonable, depending on the particular circumstances of the case." Cebula v. Catalina Mktg. Corp., OAL Docket No. CRT 05588-02, p. 22 (January 26, 2004). Also a leave of absence has been upheld as a reasonable accommodation under the ADA. See Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998).
The County defendants argue that, unlike the ADA, the LAD has a temporal requirement that the disabled employee be able to perform the essential functions of the job during the application of the reasonable accommodation, and, as found by the court, plaintiff was unable to work at the time she claimed that she should have received a reasonable accommodation. Accordingly, the County defendants assert the trial court was correct in granting dismissal.
The County defendants rely upon the federal decisions of Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135 (3rd Cir. 2004), and an unpublished opinion from the District of New Jersey, both of which considered the question under the LAD. Both cases placed critical reliance upon the DCR regulation in the Administrative Code, N.J.A.C. 13:13-2.8(a), then providing an exception to the employer's obligation to provide a reasonable accommodation "where it can reasonably be determined that an applicant or employee, as a result of the individual's disability, cannot presently perform the job even with reasonable accommodation," Conoshenti, supra, 364 F.3d at 150 (emphasis added). Conoshenti then held:
NJLAD protects only an employee who can presently perform the essential functions of his job with or without the reasonable accommodation. The NJLAD thus requires that the handicapped employee be able to perform the essential functions of his job during the application of the reasonable accommodation - that is, at the same time that the reasonable accommodation is being implemented. . . .
We decline to hold that a temporary leave of absence must be granted under NJLAD to reasonably accommodate a handicapped employee's inability to presently perform the essential functions of his job. Such a holding would effectively defeat the application of the present performance exception. [Conoshenti, supra, 364 F.3d at 151.]
In the instant case, the trial judge without citing Conoshenti or the administrative regulation, granted dismissal of plaintiff's disability on the same rationale - that is, that the County could not make a reasonable accommodation because plaintiff testified that prior to September 1, 2001, she could not return to work with any accommodations. However, the precedential weight of Conoshenti was dissolved by amendment of N.J.A.C. 13:13-2.8 to remove the word "presently" in connection with a disabled individual's ability to perform his or her job in order to clarify that a leave of absence was a form of reasonable accommodation in employment under the LAD. See 38 N.J.R. 1 (January 2006). The amended regulation was an obvious response to Conoshenti. Noting that N.J.S.A. 10:5-4.1 did not contain the word "presently" or similar language, the DCR Director concluded that neither the letter nor the intent of any provision of the LAD precluded the determination that a leave of absence is a possible accommodation under the LAD.
The amended regulation was adopted by the DCR Director on December 1, 2005, with an effective date of January 3, 2006.*fn1
Since the trial in this case began on November 27, 2006, there was no case or administrative regulation to support the trial court's conclusion that a rational jury could not conclude that there would be no accommodation to plaintiff's disability by the County since the court did not consider a leave of absence as an accommodation. In any event, whether or not a leave of absence was a reasonable accommodation under these factual circumstances is a jury question. Therefore, we find that involuntary dismissal was not appropriate on the ground that plaintiff could not perform the essential functions of her job even with an accommodation. See Brosshead, supra, 345 N.J. Super. at 91.
However, we hold that the dismissal of plaintiff's case was proper based on her failure to prove that she suffered an adverse employment action because of her disability. Plaintiff asserts that it was her June 21, 2001, fax to Convery of Dr. Antonacci's request for an extension of her leave of absence to July 6, 2001, that constituted her request for an extended leave to accommodate her disability. She relies upon our statement in Tynan, supra, 351 N.J. Super. at 385, that once this request was made for assistance, it was incumbent on the County to make the reasonable effort to determine any appropriate accommodation. Id. at 400-01. This parallels ADA regulations which provide that
To determine the appropriate reasonable accommodation it may be necessary for [the employer] to initiate an informal, interactive process with the qualified individual with a disability in need of accommodation.
[29 C.F.R. § 1630.2(o)(3).]
Claiming that the County made no effort, much less a reasonable effort, to accommodate her disability, plaintiff argues that the County must be liable for all damages flowing from her discharge.
Plaintiff bears the burden of showing that the County did not participate in the process of formulating an accommodation for her disability. We delineated this burden in Tynan as follows:
To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: (1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; (4) the employee could have been reasonably accommodated but for the employer's lack of good faith. [Tynan, supra, 351 N.J. Super. at 401.]
Here the plaintiff's last medical leave expired on June 7, and she neither reported to work nor made claim for further leave. It was not until two weeks later, on June 21, that she faxed Dr. Antonacci's report requesting further extension and stating she could return to work on July 6, 2001. After receiving the preliminary disciplinary notice dated June 22, plaintiff did see an attorney but no demand was made on her behalf or by her for further medical leave as an accommodation of her disability. She did not respond to the notice or challenge the charges. She did not return to work on July 6, 2001, and did not appear at the July 9, 2001 hearing date, which was more than a month after the expiration of the last medical leave granted by the County and three days after Dr. Antonacci wrote she could return to work. Since neither plaintiff nor anyone on her behalf appeared at the hearing, there was a sufficient basis to sustain the charge that plaintiff was absent without leave and had abandoned her position.
While plaintiff argues that the County did not make a good faith effort to accommodate her disability, it is clear from the record that plaintiff did not return to work when her physician said she would be able to do so and then did nothing for almost two years after the July 9 hearing to indicate that she wished to remain in her job either with or without accommodation. Indeed, the only communication was the filing of the complaint to initiate this action.
Nothing in the LAD requires an employer to continue to grant extended leave to an employee in expectation or hope that perhaps one day she could or would return to work. While there is no question that the LAD requires an employer to make a good faith effort to assist a disabled employee in seeking accommodation, Tynan, supra, N.J. Super. at 401, the employee must also engage in the process.
In Potente, supra, 187 N.J. at 103, an investigator in the Hudson County Prosecutor's Office suffered shoulder injuries, necessitating surgery and sought a leave of absence after using up his sick time. According to the County of Hudson, a meeting was scheduled to discuss potential accommodations including a leave of absence. Plaintiff denied that any meeting was discussed, let alone scheduled. The Supreme Court reversed a directed verdict in plaintiff's favor on the failure to accommodate. In the course of the opinion the Court stated: "Plainly an employee cannot refuse to cooperate with an employer's efforts to accommodate his disability and then claim failure to accommodate." Id. at 111.
So too in this case, plaintiff cannot claim a failure to accommodate when she did not return to work on July 6, 2001, and did not show up at the July 9, 2001, hearing after the expiration of requested leave in Dr. Antonacci's report and sought no further leave thereafter. Her failure to participate gives the lie to her claim of lack of good faith by the County. An employee cannot walk away from her position for an extended period and claim failure to accommodate. Here plaintiff suffered no adverse employment action as a result of her disability. Her loss of the position was due to her absence and failure to request a hearing. Accordingly, based on plaintiff's proofs and the record, involuntary dismissal was proper under Rule 4:37-2(b).
Murray and his law firm also sought involuntary dismissal of plaintiff's malpractice claim at the conclusion of plaintiff's case, but the court denied the application on the ground that the testimony of plaintiff and her expert was sufficient to make out a prima facie case of legal malpractice. The trial therefore continued on plaintiff's malpractice claim against Murray and his law firm.
Defendant Convery testified that on March 26, 2001, while plaintiff was on medical leave, he received information about possible criminal conduct by plaintiff which involved her daughter, Janette Rodriguez, who had left her job with the Passaic County Prosecutor's Office in May 2000. Rodriguez's County benefits were to expire after a thirty-day grace period. However, plaintiff did not advise Insurance Design Administrators (IDA) that Rodriguez was no longer employed by the County, and medical bills of $2,631 were paid by the County. Convery knew that plaintiff was the senior benefits clerk and that it was her responsibility to alert IDA that Janette left County employment. He wrote William J. Pascrell, III, Passaic County Counsel, about the matter, suggesting the County Prosecutor investigate. Three days later Juan Torres, Passaic County Personnel Director, sent a memo to Convery stating that Janette filed claims for which she was not eligible and that plaintiff "engaged in conduct unbecoming a Public Employee." The memo concluded, "I will take the necessary disciplinary action including termination if necessary."
Although plaintiff said that she spoke with Convery on or about April 11, 2001, at his office, he did not recall any such conversation. While not denying she may have given him a letter of resignation, Convery said he did not tell her not to resign and probably would not have spoken to her at all because he knew she was under investigation.
On May 14, 2001, Convery wrote to Assistant County Counsel Charles Sciarra, inquiring as to the status of the matter. He added that a quick analysis revealed that in addition to plaintiff's daughter there were three or four other employees terminated from County employment who received medical benefits exclusive of COBRA coverage. Convery's memo concluded:
From what I can glean, it would appear that charges will have to be prepared against Mrs. Santiago for removal unless she decides to resign. In any event, Mrs. Santiago is on medical leave, which has been extended for an additional 30 days to the date of June 7, 2001.
After plaintiff did not return to work on June 7, Nancy Gander, an employee benefits specialist with the County, wrote to Assistant County Counsel Sciarra on June 13 advising him that plaintiff did not appear for work on the designated date and that "she has not communicated with this department at all, nor have we received any correspondence regarding her leave." Four days later, June 22, 2001, Sciarra drafted the preliminary notice for disciplinary action against plaintiff, which included the "conduct unbecoming" charge which he stated was a generic term covering any and all charges including plaintiff being AWOL as well as potential charges that she purposely or negligently failed to remove her daughter and others from entitlement to County benefits after termination of employment.
Shortly after that date Sciarra received a telephone call from Murray telling him that plaintiff had consulted him, and he wanted to find out about the matter. Sciarra testified that he told Murray everything he knew including both plaintiff's absence from work and the investigation into plaintiff's daughter and others improperly receiving medical benefits after they left County employment. He stated that he believed he never heard from Murray about plaintiff after his initial conversation. Sciarra said that after plaintiff did not answer the charges or appear at the hearing, the matter of improper payment of benefits was not pursued further.
Murray testified that he saw plaintiff in June 2001, when a friend who was her chiropractor asked him to speak with her about a problem at work. That same day plaintiff came to Murray's office and told him that she had resigned her position in the County but wanted her back pay for sick and vacation time as well as personal items in her desk. Murray told her that he would call County Counsel to see if they could resolve the matter. Within a few days, Murray talked to Sciarra. Murray testified that Sciarra told him plaintiff was under investigation by the County Prosecutor as well as the State Attorney General for fraudulently altering records to allow her daughter to receive medical benefits for over one and a half to two years after she resigned from the County.
Murray said he called plaintiff right away. She came to his office, and he told her that she and her daughter were involved in a criminal investigation. He further explained she could be charged with official misconduct, a second-degree crime with a presumption of incarceration. At that point, plaintiff got angry and said, "Everyone does it. If they come after me, other people are going to go down with me."
Murray said he told plaintiff that in these types of matters prosecutors would often give an employee an opportunity to resign and then consider whether to drop the charges. Since plaintiff said she had already resigned, Murray told her that if she did not pursue an action against the County, it was possible that she would not be prosecuted or required to sign a document promising not to seek future public employment. He emphasized the last point since she had so much County service time that she might be able to get a job in another county and eventually obtain her pension.*fn2 When she left his office Murray believed that she agreed with him that it was in her best interest not to pursue any claim for vacation or sick time against the County.
Murray said that over the next few months plaintiff called him and finally told him that she was moving to Puerto Rico. Before she left, she went to his office and gave him a telephone number of a contact person in New Jersey if he needed to speak with her. Murray told her that her sick pay and vacation pay issues had not been resolved and that in his opinion she should not pursue it. He said the County was willing to permit her to get her personal property, and plaintiff said she would take care of it.
The next time plaintiff came to Murray's office was on June 20, 2003. Murray believed that the statute of limitations would bar a claim of unjust termination by the County unless a complaint was immediately filed. Murray said that plaintiff was pleasant but wanted to know why he had not sued the County. He said that she told him she had quit and he repeated the reason he did not pursue any claim against the County. Nonetheless, he agreed to draft a pro se complaint for her to file the next day, the two-year period after her termination would expire. He also discussed the matter with his partner, who drew up an agreement which stated that there was no further representation of plaintiff by Murray and his law firm.
On cross-examination Murray acknowledged that plaintiff initially came to him with civil service complaint forms but said that she was unclear as to how she was to proceed. He acknowledged that she called him over the next few months and stressed the need for money. He said that he discussed getting some of the sick and vacation time pay with Sciarra but was told there were difficulties in doing so.
Both plaintiff and Murray produced expert witnesses on the issue of legal malpractice. In brief, plaintiff argued that an attorney-client relationship was formed when Murray first met with plaintiff and that Murray did not adhere to the applicable standard of care and, in effect, abandoned his client. She also claimed that he would not respond to her inquiries, that he did not abide by her objectives in wanting to challenge her discharge of employment, and that he did not clearly indicate to plaintiff her legal options. Defendant's expert testified there was no deviation from the proper standard of care since plaintiff told Murray she quit her employment and that the only issue was sick and vacation pay. Furthermore, he opined that there was no deviation as a result of Murray's advice to plaintiff not to pursue an action against the County as it might stimulate officials to pursue criminal charges.
Following the jury verdict of no cause for action, plaintiff moved for a new trial under Rule 4:49-1, claiming a miscarriage of justice. We find that the trial judge properly denied the motion. Contrary to plaintiff's argument, Murray's expert witness was qualified to render an opinion, and his opinion was not a net opinion since it related to the facts and circumstances of this case and was within the witness's expertise. It was the role of the jury to evaluate the conflicting expert testimony as to whether there was a deviation from the applicable standard of care, and we find no miscarriage of justice as a result of its verdict. Carrino v. Novotny, 78 N.J. 355, 360 (1979).
Furthermore, the record does not support plaintiff's argument that Murray committed legal malpractice as a matter of law. As set forth in her brief, her allegations of malpractice are as follows:
(1) Defendant Murray violated RPC 1.2 [Rules of Professional Conduct] because he did not abide by Ms. Santiago's objectives in that she wanted to challenge her discharge of employment.
(2) Defendant Murray violated RPC 1.3 by failing to act with diligence with regard to her termination from employment.
(3) Defendant Murray violated RPC 1.4 by failing to communicate clearly with Ms. Santiago as to her legal options, applicable rules of time limitation or the status of her termination case generally despite continued inquiries that defendant Murray acknowledged receiving and acknowledged not responding to.
(4) Defendant Murray clearly violated RPC
1.16. Defendant Murray clearly did not advise the tribunal here of his decision to withdraw. He certainly did not act to protect Ms. Santiago's interest after deciding to withdraw. Here again, he did not exchange any writings with Ms. Santiago, did not advise her as to her options for pursuing a challenge to her discharge, did not advise of his decision not to attend the scheduled hearing, and did not advise her as to any applicable time limitation periods.
Plaintiff's argument ignores the factual conflict between the testimony of plaintiff and Murray as to whether she wished to challenge her removal from her job or had voluntarily quit and sought only vacation and sick pay. There is also a direct conflict in the testimony as to plaintiff's conversations with Murray and his advice to her. Plaintiff testified that Murray never told her of her exposure to criminal prosecution, insisting that she had no knowledge of any investigation of her until after she initiated this lawsuit. If so, Murray's testimony was a complete fabrication from start to finish. Clearly, this was a factual issue that was properly submitted to the fact-finder. We see no miscarriage of justice and no reason to overturn the jury verdict in favor of defendant Murray and his law firm.